[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
>>
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>>
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>>     *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
>>
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>>
>>
>>         -- 
>>
>>         Farzaneh
>>
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-- 
--------------
Matthew Shears
Global Internet Policy and Human Rights
Center for Democracy & Technology (CDT)
+ 44 771 2472987
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