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

Tue Sep 6 23:18:06 UTC 2016

Thanks David.  This is exactly why we cannot use the Ruggie definition of “respect”.    Again, it is difficult for me to see how Ruggie applies since those principles are developed in relation to a corporation that operates “top down” rather than “bottom up” and were not developed in relation to the unique MS policy development framework that applies to ICANN.

The Ruggie definition of “respect” would require ICANN action in the context of evaluating and minimizing  Human Rights adverse impact in all its business relationships.

ICANN’s primary business relationships are registry contracts.  This includes award and renewal of gTLD contracts    (As a side note, and also noting my bias as an IP lawyer in favor of  the protection of trademark and copyright,  the UDRP and URS processes are not “business relationships” of ICANN. ) These are dispute resolution processes developed through a bottom-up MS approach – again a concept that is completely foreign to businesses for which Ruggie principles were developed.

So from my point of view, Ruggie is inapposite and we need to “start from scratch” so that the FOI being developed recognizes the existing ICANN MS Model and the existing policy development process and functions of policy advice coming from the GAC and ALAC and other entities in addition to the GNSO.  This is definitely a “balancing act” of Core Values for the Community and the Board.  Any Human Rights FOI that does not EXPLICITLY recognize the MS Model of policy development is inadequate.

I would therefore suggest a preamble to the FOI along the following lines:

PREAMBLE TO HUMAN RIGHTS FRAMEWORK OF INTERPRETATION

“WHEREAS the application of internationally-recognized Human Rights principles in the context of ICANN’s mission and scope requires policy development processes within the ICANN Community and

WHEREAS, the application of these principles to ICANN’s activities may require a balancing of ICANN’s Core Values as outlined in the By-Laws at Subparagraph ____(c )  (REPEAT text previously referenced by Jorge Cancion and pasted below)

NOW THEREFORE, the CCWG- ACCT recommends the following Framework of Interpretation in relation to the application of the new Human Rights By-Law adopted by the Board on ___________ (date) to ICANN’s scope and mission.”

Separately, I personally believe a Human Rights Objection process may be appropriate, thereby taking ICANN itself out of the content regulation business in relation to gTLD applications and awards, but this of course would be a matter for policy development.

Anne

"(c) The Commitments and Core Values are intended to apply in the broadest
possible range of circumstances. The Commitments reflect ICANN’s
fundamental compact with the global Internet community and are intended to
apply consistently and comprehensively to ICANN’s activities. The specific
way in which Core Values are applied, individually and collectively, to any
given situation may depend on many factors that cannot be fully anticipated
or enumerated. Situations may arise in which perfect fidelity to all Core
Values simultaneously is not possible. Accordingly, in any situation where
one Core Value must be balanced with another, potentially competing Core
Value, the result of the balancing must serve a policy developed through the
bottom-up multistakeholder process or otherwise best serve ICANN’s Mission."

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office

520.879.4725 fax

AAikman at lrrc.com<mailto:AAikman at lrrc.com>

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From: ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] On Behalf Of McAuley, David
Sent: Tuesday, September 06, 2016 3:34 PM
To: Dr. Tatiana Tropina; ws2-hr at icann.org
Subject: Re: [Ws2-hr] When should ICANN uphold human rights?

Interesting discussion among thoughtful folks, in which I find myself with Greg and Tanya.

Work Stream One, in my opinion/recollection, never intended for the FoI team to throw open the doors and see what we could come up with. I recall a great deal of concern over the notion of an expansive HR commitment and don’t think we would have reached closure if the HR provision would have been a broad one. I think Tanya captured that correctly.

As I read it, the bylaw that we are interpreting creates the FoI sub-team ‘charter’ (Section 27.2) as an effort containing “limitations” rather than an invitation to expand the bylaw (Article 1.2(b)(viii) begins “Subject to the limitations set forth in Section 27.2 …”).

Whatever FoI we come up with must be approved by the full CCWG, will be sent through the COs, and is subject to board approval – some of the same drivers that helped shape the focus of the Bylaw we came up with in Section 1.2(b)(viii). And the FoI must be consistent with a bylaw that requires respect for HR within the scope of ICANN’s narrow and unique mission.

David

David McAuley
International Policy Manager
Verisign Inc.
703-948-4154

From: ws2-hr-bounces at icann.org<mailto:ws2-hr-bounces at icann.org> [mailto:ws2-hr-bounces at icann.org] On Behalf Of Dr. Tatiana Tropina
Sent: Tuesday, September 06, 2016 5:38 PM
To: ws2-hr at icann.org<mailto:ws2-hr at icann.org>
Subject: Re: [Ws2-hr] When should ICANN uphold human rights?

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
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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] 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>

_____________________________

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Lewis Roca Rothgerber Christie LLP

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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

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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>
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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
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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] 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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