[Ws2-hr] When should ICANN uphold human rights?
matthew shears
mshears at cdt.org
Tue Sep 6 22:02:47 UTC 2016
I suggest that we start with the approach outlined by Greg and Tatiana -
it is appropriate to the immediate task - the bylaw. Once we have
addressed that - which should be our primary focus - then we could
perhaps discuss other matters, perhaps. We have a lot of work to do,
lets not over-egg it from the start.
On 06/09/2016 22:56, Rudolph Daniel wrote:
>
> 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
> <mailto: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 <tel:650.331.7014> (direct)*
>>
>> 650-245-8361 <tel:650-245-8361> (mobile)
>>
>> 650.331.7000 <tel:650.331.7000> (main)
>>
>> 650.331.7001 <tel:650.331.7001> (fax)
>>
>> *www.mh-llp.com* <http://www.mh-llp.com/>
>>
>> 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>
>> [mailto:ws2-hr-bounces at icann.org
>> <mailto: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 <mailto: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 <mailto: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 <tel:520.629.4428> office
>>
>>
>> 520.879.4725 <tel:520.879.4725> fax
>>
>> AAikman at lrrc.com <mailto:AAikman at lrrc.com>
>>
>> _____________________________
>>
>> Lewis Roca Rothgerber Christie LLP
>>
>> One South Church Avenue, Suite 700
>>
>> Tucson, Arizona 85701-1611
>>
>> lrrc.com <http://lrrc.com/>
>>
>>
>> *From:*ws2-hr-bounces at icann.org <mailto:ws2-hr-bounces at icann.org>
>> [mailto: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 <mailto: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 <tel:%2B216%2098%20330%20114>
>>
>> +216 52 385 114 <tel:%2B216%2052%20385%20114>
>>
>> -----------------------------------------------------------------------------
>>
>> Le 4 sept. 2016 à 18:24, Paul Rosenzweig
>> <paul.rosenzweig at redbranchconsulting.com
>> <mailto:paul.rosenzweig at 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
>> <mailto:paul.rosenzweig at redbranchconsulting.com>
>>
>> O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>
>>
>> M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>
>>
>> VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739>
>>
>> www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
>>
>> My PGP Key:
>> http://redbranchconsulting.com/who-we-are/public-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>
>> [mailto:ws2-hr-bounces at icann.org
>> <mailto: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
>> <mailto:kavouss.arasteh at gmail.com>>
>> *Cc:* ws2-hr at icann.org <mailto: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
>> <mailto: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 <mailto: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 <mailto:Ws2-hr at icann.org>
>> https://mm.icann.org/mailman/listinfo/ws2-hr
>> <https://mm.icann.org/mailman/listinfo/ws2-hr>
>>
>>
>>
>> --
>>
>> Farzaneh
>>
>> _______________________________________________
>> Ws2-hr mailing list
>> Ws2-hr at icann.org <mailto:Ws2-hr at icann.org>
>> https://mm.icann.org/mailman/listinfo/ws2-hr
>> <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 <mailto:Ws2-hr at icann.org>
>> https://mm.icann.org/mailman/listinfo/ws2-hr
>> <https://mm.icann.org/mailman/listinfo/ws2-hr>
>>
>>
>>
>> _______________________________________________
>> Ws2-hr mailing list
>> Ws2-hr at icann.org <mailto:Ws2-hr at icann.org>
>> https://mm.icann.org/mailman/listinfo/ws2-hr
>> <https://mm.icann.org/mailman/listinfo/ws2-hr>
> _______________________________________________ Ws2-hr mailing
> list Ws2-hr at icann.org <mailto:Ws2-hr at icann.org>
> https://mm.icann.org/mailman/listinfo/ws2-hr
> <https://mm.icann.org/mailman/listinfo/ws2-hr>
>
> _______________________________________________
> Ws2-hr mailing list
> Ws2-hr at icann.org
> https://mm.icann.org/mailman/listinfo/ws2-hr
--
--------------
Matthew Shears
Global Internet Policy and Human Rights
Center for Democracy & Technology (CDT)
+ 44 771 2472987
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/ws2-hr/attachments/20160906/79c2920d/attachment-0001.html>
-------------- 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/20160906/79c2920d/attachment-0001.gif>
-------------- 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/20160906/79c2920d/attachment-0001.png>
More information about the Ws2-hr
mailing list