[Ws2-hr] When should ICANN uphold human rights?

Tue Sep 6 21:56:50 UTC 2016

I am closer to Daniel Appelman's understanding than to Tatiana's right
about now. :)
rd

On Sep 6, 2016 5:39 PM, "Dr. Tatiana Tropina" <t.tropina at mpicc.de> wrote:

> Dear Daniel,
>
> I would rather disagree with broadening the view that much.
>
> First of all, there are other documents from CCWG than define the tasks of
> this group, than only the bylaw text. In particular, Annex 06 (p. 2) of the
> CCWG-Accountability Supplemental Final Proposal on Work Stream 1
> Recommendations report, that was approved, says:
>
> "Include the following in Work Stream 2 activities:
> - Develop an *FOI-HR for the Human Rights Bylaw*" (underlined by me).
>
> The drafters of the CCWG report could have been of course more specific
> and put the wording "FoI for the HR Bylaw" everywhere, but I think it
> actually never dawned on them that there will be a discussion on broadening
> the scope of the FoI that much. At least the wording of the Annex 6 (and
> Annex 12 about WS2) indicates that it's a FoI for bylaw and not for the
> whole human rights impact assessment (HRIA) within ICANN.
>
> Secondly, even a mere interpretation of the bylaw will require a lot of
> analysis of what you refer to, but extending the work of this group to the
> whole HRIA is outside of our mandate I think. There was a report of the
> Cross-community working party for human rights (which is not the part of
> the work of this CCWG) prepared for the ICANN meeting in Dublin that
> actually showed that the full HRIA, though might be a desirable option, is
> a time- and resources-consuming process and might be recommended only in a
> long-term. We can of course consider recommending ICANN to carry out a HRIA
> as a part of the FoI, why not, but doing the whole assessment on our own,
> in this group, rather looks like an impossible task - both in terms of
> resources and mandate.
>
> I think the work of this group should definitely focus on the bylaw
> interpretation at the moment, because we do have to agree on what the bylaw
> means first before we will make any further recommendations.
>
> warm regards
> Tatiana
>
> On 06/09/16 20:36, Daniel Appelman wrote:
>
> I would take a broader view than the one Greg has just suggested.  Nowhere
> in the Bylaw and the conditions upon which it would become effective does
> it say that the WS2 team’s activities should be restricted to footnoting
> the Bylaw or prohibited from making recommendations on human rights-related
> policies.  In fact, our mandate is to develop and recommend a “framework of
> interpretation for human rights”.  This is much broader than providing “a
> framework of interpretation for the Bylaw”.  We will not be doing our job
> unless we consider what human rights are impacted by ICANN and its
> relationships with third parties and then develop recommendations as to the
> scope of ICANN’s obligations under the Bylaw to respect those human rights
> in engaging in those relationships.
>
>
>
> Dan
>
>
>
> *Daniel Appelman*
>
> Partner
>
> *Montgomery & Hansen, LLP*
>
> 525 Middlefield Road, Suite 250
>
> Menlo Park, CA 94025
>
> *650.331.7014 <650.331.7014> (direct)*
>
> 650-245-8361 (mobile)
>
> 650.331.7000 (main)
>
> 650.331.7001 (fax)
>
> *www.mh-llp.com* <http://www.mh-llp.com/>
>
>
>
> [image: New Logo - email ver]
>
>
>
> This e-mail message is for the sole use of the intended recipient(s) and
> may contain confidential and privileged information. Any unauthorized
> review, use, disclosure or distribution is prohibited. If you are not the
> intended recipient, please contact the sender by reply e-mail, and destroy
> all copies of the original message.  To ensure compliance with requirements
> imposed by the IRS, we inform you that any tax advice contained in this
> communication, unless expressly stated otherwise, was not intended or
> written to be used, and cannot be used, for the purpose of (i) avoiding
> tax-related penalties under the Internal Revenue Code or (ii) promoting,
> marketing or recommending to another party any tax-related matter(s)
> addressed herein.
>
>
>
>
>
> *From:* ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org
> <ws2-hr-bounces at icann.org>] *On Behalf Of *Greg Shatan
> *Sent:* Tuesday, September 06, 2016 11:13 AM
> *To:* Aikman-Scalese, Anne
> *Cc:* ws2-hr at icann.org
> *Subject:* Re: [Ws2-hr] When should ICANN uphold human rights?
>
>
>
> Whatever we do, we can't create gTLD policy.  We can (and indeed must)
> provide guidance in how the Bylaw should be interpreted by those engaged in
> gTLD policy development.  But the policy development process cannot take
> place here.
>
>
>
> We also should not be creating procedural mechanisms for when a Human
> Rights impact evaluation is triggered.  Nor should we even be the one to
> create or mandate a human rights impact evaluation.  Again, we should
> provide guidance in how the Bylaw should be interpreted by those who might
> consider whether to create such mechanisms or evaluations, and those who
> create them.
>
>
>
> We need to stick to our mandate, which is to provide a Framework of
> Interpretation for the Bylaw.  To my mind, this essentially means
> "annotating" the Bylaw, with what amount to a series of footnotes, so that
> the language used will be used consistently by groups that come after this
> one.
>
>
> Greg
>
>
>
> On Tue, Sep 6, 2016 at 2:04 PM, Aikman-Scalese, Anne <AAikman at lrrc.com>
> wrote:
>
> Protection of registrant data is certainly important. This was studied for
> quite a long time by the Expert Working Group on WhoIs and is now the
> subject of a GNSO Policy Development Process.  As I understand it, the new
> framework for Directory Registry Services essentially proposes a “need to
> know” threshold test.  I think it would be naïve for this Workstream 2
> group to hold that Human Rights (in the form of privacy and freedom of
> expression) were not considered by the EWG or won’t be considered in the
> final outcome of the PDP.  In fact, the activities of these groups with
> respect to registrant data have sought to balance two clearly listed Human
> Rights guidelines in the UDRP – that is the privacy right and the rights of
> authors (i.e. intellectual property rights).
>
>
>
> I don’t think the work done in the FOI for Workstream 2 Human Rights is
> supposed to trump the policy work of the GNSO or the public policy advice
> of the GAC or the advice of the ALAC.  Still not sure, however, how this
> Framework of Interpretation for Human Rights can be considered anything
> other than new gTLD policy when applied to ICANN’s new gTLD activities,
> including, but not limited to,
>
>
>
> 1.       Award of registry contracts
>
> 2.       Contractual provisions required in registry (and by implication
> registrar) contracts.
>
> 3.       Adjudication of Requests for Reconsideration
>
> 4.       Adjudication of complaints filed with ICANN with respect to Spec
> 11 Public Interest Commitments
>
> 5.       Possible revocation of gTLD contract awards in relation to
> registry operators using TLDs for Human Rights abuse purposes.
>
> Separately, regarding, for example, UDRP and URS proceedings, these are
> not actually activities of ICANN.  These are dispute resolution mechanisms
> that take place outside ICANN’s operations and are less directly implicated
> in the Human Rights framework than the activities listed in 1 through 5
> above.   However, these are mechanisms developed through the ICANN Policy
> Development Process.
>
>
>
> As a practical matter, it would seem that the best this WS2 team can do is
> establish a procedural mechanism for determining when a Human Rights Impact
> review is triggered and a process where the Community conducts such a Human
> Rights Impact review.  This necessarily would have to correlate with Policy
> Development.  In the end, the various policy advisory groups may well
> disagree as they provide advice to the Board and it is the Board which
> makes the final decision, even in the new Empowered Community model.  The
> Board receives advice from many different sources.  One such source is the
> European Commission, whose advice is one reason this new By-Law exists and
> one reason this group exists in WS2.
>
>
>
> The only practical way forward from my point of view is for this group to
> define criteria as to when a Human Rights Impact evaluation is triggered
> and how it should be conducted within policy-making activities already
> going on in the Community.  This would include the five items listed above
> if indeed we are to use such general language as is proposed in the FOI in
> relation to “respect human rights” in a manner which requires ICANN to take
> action to eliminate or reduce adverse Human Rights impact in the business
> relationships and activities with which it is involved.
>
>
>
> I can compare all this to the process in the U.S. which requires an
> Environmental Impact Statement as to various business activities.   The
> criteria for a Human Rights Impact Statement might be a starting point.
> However, in developing such a Human Rights Impact evaluation, and as agreed
> in WS1, we cannot focus on just one or two or three of the relevant Human
> Rights.  None of the Human Rights documents we refer to rank these rights
> in order of priority as far as I know.  The rights of authors and
> indigenous peoples I represent are just as important as the rights of
> freedom of expression and privacy.  In fact, author’s rights (including the
> copyright rights which give the authors the exclusive right to make changes
> to their own works) may be equally important to condemning oppressive
> governmental action or exploitation of native culture for corporate or
> personal gain.  (Why would registrant information be protected for sellers
> of fake Navajo jewelry?)
>
>
>
> Again, by way of SOI disclosure, I represent the Pascua Yaqui Tribe and my
> firm represents the Navajo Nation for certain intellectual property
> matters.  (We currently have no instructions from either with respect to
> participation in ICANN so my views are my own.)  In ICANN’s activities, it
> appears to me that a Human Rights Impact analysis is ALWAYS a question of
> balancing various Human Rights.
>
> Anne
>
>
>
> *Anne E. Aikman-Scalese*
>
> Of Counsel
>
> 520.629.4428 office
>
> 520.879.4725 fax
>
> AAikman at lrrc.com
>
> _____________________________
>
> Lewis Roca Rothgerber Christie LLP
>
> One South Church Avenue, Suite 700
>
> Tucson, Arizona 85701-1611
>
> lrrc.com
>
>
>
> *From:* ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] *On
> Behalf Of *Tijani BEN JEMAA
> *Sent:* Sunday, September 04, 2016 11:13 AM
> *To:* Paul Rosenzweig
>
>
> *Cc:* ws2-hr at icann.org
> *Subject:* Re: [Ws2-hr] When should ICANN uphold human rights?
>
>
>
> Dear all,
>
> I agree with Paul that among the main questions for us to come up with a
> Frame of Interpretation of the Human Rights in the ICANN mission would be:
>
>    -        What substance we see in the phrase human rights inside ICANN
>    Mission?
>    -        When, if ever, ICANN should give that substance (whatever it
>    may be) effect?
>
>  I can’t say they are the only meaningful questions since there will be
> subsequent questions. But let’s start with the first question: I think that
> to address it, we may begin by giving practical easy cases.
>
> The protection of the registrant data is one of the most obvious case of
> human right that falls in the ICANN mission. This may also affect the ICANN
> contract with registries/registrars
>
>
>
> ------------------------------------------------------------
> -----------------
>
> *Tijani BEN JEMAA*
>
> Executive Director
>
> Mediterranean Federation of Internet Associations (*FMAI*)
>
> Phone: +216 98 330 114 <%2B216%2098%20330%20114>
>
>             +216 52 385 114 <%2B216%2052%20385%20114>
>
> ------------------------------------------------------------
> -----------------
>
>
>
>
>
> Le 4 sept. 2016 à 18:24, Paul Rosenzweig <paul.rosenzweig@
> redbranchconsulting.com> a écrit :
>
>
>
> Dear Farzaneh
>
>
>
> Of course your questions are meaningful.  Indeed, the ONLY two meaningful
> questions in this discussion are a) what substance we see in the phrase
> human rights? And b) When, if ever, ICANN should give that substance
> (whatever it may be) effect?
>
>
>
> Your questions clearly go to the later of these two issues.  Members of
> the group may disagree on the answers we reach, but you’re asking questions
> that have real meaning – whatever anyone may say to the contrary.
>
>
>
> Paul
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> www.redbranchconsulting.com
>
> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/
>
>
>
> *From:* ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org
> <ws2-hr-bounces at icann.org>] *On Behalf Of *farzaneh badii
> *Sent:* Sunday, September 4, 2016 11:56 AM
> *To:* Kavouss Arasteh <kavouss.arasteh at gmail.com>
> *Cc:* ws2-hr at icann.org
> *Subject:* Re: [Ws2-hr] When should ICANN uphold human rights?
>
>
>
> Calling something "not meaningful" is very easy. But it does not devalue
> its merits, fortunately.  Please provide a rationale for why the questions
> are not meaningful. I don't have to consult with the co-chairs to discuss
> the questions here. If the group feels that it is unnecessary to discuss
> these questions they can simply not respond, if they feel we should
> re-formulate them, then we can.
>
>
>
> The questions are to clarify what we mean by ICANN should not become a
> content regulator. The discussions that can arise responding to the
> question and sub-questions which I have posted can lead us towards a more
> tangible understanding of what we mean when we say ICANN should not become
> a content regulator and should not go out of its scope and mission when
> upholding human rights.
>
>
>
> Best
>
>
>
> Farzaneh
>
>
>
> On 4 September 2016 at 17:34, Kavouss Arasteh <kavouss.arasteh at gmail.com>
> wrote:
>
> Dear All,
>
> I do not understand the meaning and purpose of these questions.
>
> Perhaps the author of the questions could consult other two co chairs and
> come up with meaningfull text.
>
> We can not send out these questions at all
>
> Reagrds
>
> Kavouss
>
>
>
> 2016-09-04 14:25 GMT+02:00 farzaneh badii <farzaneh.badii at gmail.com>:
>
> Hi all,
>
>
>
> Sorry for sending out the questions late. I wanted to provide a gist of
> what we discussed during our call and then provide the questions but
> unfortunately, we still do not have the recording. Below are some questions
> for the group to discuss:
>
>
>
>
>
> Considering ICANN's scope and mission, when should ICANN uphold human
> rights?
>
>
>
> - In its consideration to enter into contracts with registries and
> registrars? (for example, when they are considering a new gTLD application)
>
>
>
> - During the contractual relationship with the registries and the
> registrars by obligating the registries and registrars to enforce human
> rights?
>
>
>
>
>
>
>
>
>
>
>
> Best
>
>
>
>
>
> --
>
> Farzaneh
>
>
>
> _______________________________________________
> Ws2-hr mailing list
> Ws2-hr at icann.org
> https://mm.icann.org/mailman/listinfo/ws2-hr
>
>
>
>
>
>
>
> --
>
> Farzaneh
>
> _______________________________________________
> Ws2-hr mailing list
> Ws2-hr at icann.org
> https://mm.icann.org/mailman/listinfo/ws2-hr
>
>
>
>
> ------------------------------
>
>
> This message and any attachments are intended only for the use of the
> individual or entity to which they are addressed. If the reader of this
> message or an attachment is not the intended recipient or the employee or
> agent responsible for delivering the message or attachment to the intended
> recipient you are hereby notified that any dissemination, distribution or
> copying of this message or any attachment is strictly prohibited. If you
> have received this communication in error, please notify us immediately by
> replying to the sender. The information transmitted in this message and any
> attachments may be privileged, is intended only for the personal and
> confidential use of the intended recipients, and is covered by the
> Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.
>
>
> _______________________________________________
> Ws2-hr mailing list
> Ws2-hr at icann.org
> https://mm.icann.org/mailman/listinfo/ws2-hr
>
>
>
>
> _______________________________________________
> Ws2-hr mailing listWs2-hr at icann.orghttps://mm.icann.org/mailman/listinfo/ws2-hr
>
>
>
> _______________________________________________
> Ws2-hr mailing list
> Ws2-hr at icann.org
> https://mm.icann.org/mailman/listinfo/ws2-hr
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/ws2-hr/attachments/20160906/658a358f/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: image/png
Size: 6514 bytes
Desc: not available
URL: <http://mm.icann.org/pipermail/ws2-hr/attachments/20160906/658a358f/attachment-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: image/gif
Size: 5270 bytes
Desc: not available
URL: <http://mm.icann.org/pipermail/ws2-hr/attachments/20160906/658a358f/attachment-0001.gif>