[Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Tue Sep 27 21:55:14 UTC 2016

Agree 100% there.

BTW: apologies for absence..net outage unfortunately.
RD

On Sep 27, 2016 5:11 PM, "Paul Rosenzweig" <
paul.rosenzweig at redbranchconsulting.com> wrote:

> Wow.  I guess I could not disagree more.  I do not think that fostering
> discussion about changes to Human Rights law is contributing to an  adverse
> impact -- since I do not think that talking about an issue is the same as
> implementing the issue..   Under your theory, all human rights are off
> limits for discussion whenever someone wants to speak of them in favor of
> their modification in a way ICANN deems to be a derogation.
>
> To be clear, I would oppose the substance of legalizing torture with every
> fiber of my being.  But I will also oppose, with equal fiber, an effort to
> use Human Rights as a ground for censorship.  For myself, having ICANN as
> the arbiter what is and is not acceptable discourse is .. .very wrong.
> 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/
>
> -----Original Message-----
> From: Aikman-Scalese, Anne [mailto:AAikman at lrrc.com]
> Sent: Tuesday, September 27, 2016 4:16 PM
> To: 'Paul Rosenzweig' <paul.rosenzweig at redbranchconsulting.com>; 'Daniel
> Appelman' <dappelman at mh-llp.com>; 'Bastiaan Goslings' <
> bastiaan.goslings at ams-ix.net>; 'Greg Shatan' <gregshatanipc at gmail.com>
> Cc: ws2-hr at icann.org
> Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
>
> Paul,
> One reason I disagree is that ICANN's primary business relationship is
> awarding gTLD contracts.  Should an application be filed for
>
> (dot)legalizetorture,
>
>  ICANN will be "contributing to" an adverse impact on human rights by
> awarding such a contract and this is in violation of Ruggie principles if
> it does award the TLD.  Nevertheless, freedom of expression may be involved
> in such a gTLD application.  So it is incorrect to say that ICANN's
> activities will never involve certain Human Rights like torture.
>
> ICANN may or may not have policy advice from the GAC regarding such a TLD,
> but let's at least admit that TLDs are potentially more influential and
> stronger in status than second level domains and that if we stick to the
> notion that ICANN cannot, in its business operations, "contribute to
> adverse impact" on Human Rights - that very definitely has implications for
> evaluation of gTLD applications.
>
> Do we think we are saying that ICANN should not contribute to adverse
> human rights impact, except in cases of evaluating/awarding gTLD contracts?
> My point here is that such applications may run the gamut of every Human
> Right and "contributing to adverse impact" is a very broad standard indeed,
> especially considering we are looking at "addressing" the adverse impact in
> all of its business relationships.
>
> 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
> -----Original Message-----
> From: Paul Rosenzweig [mailto:paul.rosenzweig at redbranchconsulting.com]
> Sent: Tuesday, September 27, 2016 1:05 PM
> To: 'Daniel Appelman'; Aikman-Scalese, Anne; 'Bastiaan Goslings'; 'Greg
> Shatan'
> Cc: ws2-hr at icann.org
> Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
>
> I guess you folks leave me confused.  Certainly, all human rights are due
> to be respected.  But if the FoI is to have any use at all, doesn't it have
> to deal with actual use case scenarios that are applicable to ICANN?  There
> are human rights prohibitions against torture, that ICANN must respect --
> but the chances of that particular human right having any relevance to
> anything that ICANN will ever do is vanishingly small, no?  Why would we
> construct an FoI that is so amorphous that it accommodates that possibility
> if in doing so we lose adequate guidance for the HR issues that are more
> likely to be relevant?
>
> Can we not agree that human rights are universal and indivisible but that
> some of them are more likely of applicability to ICANN's operations than
> others?  Or is that really so controversial a statement that it can't be
> made?
>
> 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/
>
> -----Original Message-----
> From: ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] On
> Behalf Of Daniel Appelman
> Sent: Tuesday, September 27, 2016 2:59 PM
> To: Aikman-Scalese, Anne <AAikman at lrrc.com>; 'Bastiaan Goslings' <
> bastiaan.goslings at ams-ix.net>; Greg Shatan <gregshatanipc at gmail.com>
> Cc: ws2-hr at icann.org
> Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
>
> Thanks for your thoughts, Anne.  I never advocated excluding any human
> rights from the framework, of course.  But none of the comments thus far
> have convinced me that they are all equally relevant for ICANN.
>
> -----Original Message-----
> From: Aikman-Scalese, Anne [mailto:AAikman at lrrc.com]
> Sent: Tuesday, September 27, 2016 11:53 AM
> To: Daniel Appelman; 'Bastiaan Goslings'; Greg Shatan
> Cc: ws2-hr at icann.org
> Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
>
> Dan,
> I think that in the FOI-HR, it would be a mistake to single out which
> Human Rights we think have to be considered (to the exclusion of others) in
> ICANN's processes and business relationships.   I think the Framework must
> leave the freedom for ICANN, in its various processes, to consider and
> balance all international human rights.  To exclude some would be dangerous
> - and just plain wrong, since, a Nigel pointed out in the call I had to
> miss, there is, in connection with any such human rights evaluation, a
> balancing act to be performed.
> 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
>
> -----Original Message-----
> From: Daniel Appelman [mailto:dappelman at mh-llp.com]
> Sent: Tuesday, September 27, 2016 11:50 AM
> To: Aikman-Scalese, Anne; 'Bastiaan Goslings'; Greg Shatan
> Cc: ws2-hr at icann.org
> Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
>
> Anne:  So does that first statement also mean that in your opinion it is
> not true that some human rights are more RELEVANT to ICANN's activities and
> mission than others?  And is that the consensus of the WG?
> I do agree with the statements in your second and third paragraphs, btw.
> Dan
>
> -----Original Message-----
> From: ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] On
> Behalf Of Aikman-Scalese, Anne
> Sent: Tuesday, September 27, 2016 11:34 AM
> To: 'Bastiaan Goslings'; Greg Shatan
> Cc: ws2-hr at icann.org
> Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
>
> It is not true that "some human rights are more important than others".  I
> agree with those who have noted that continued attempts to "cherry-pick"
> among human rights are inappropriate and not in scope for the task.   This
> is clear from the document stating the conclusions from WS1 and that
> document was already agreed on by the subteam in a prior meeting.
>
> I also wish to re-emphasize that the primary role in which ICANN may have
> a positive impact on human rights is in its primary business relationships.
> These are the contractual obligations with registries and registrars.
> Again, these are matters which must ultimately be addressed via PDP so in
> developing an FOI-HR, we must take that into account and understand that we
> are developing an FOI-HR that will be applied in the PDP process (as well
> as other processes within ICANN.)
>
> As I understand it, there is no "applicable law" that will require
> application of the FOI-HR to the PDP process.  That would be wholly
> voluntary.  Some may feel this is beyond scope and mission as to what the
> Bylaw requires.  Would like to know others thoughts on this point.
>
> 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
> -----Original Message-----
> From: ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] On
> Behalf Of Bastiaan Goslings
> Sent: Tuesday, September 27, 2016 11:20 AM
> To: Greg Shatan
> Cc: ws2-hr at icann.org
> Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
>
> I do not think we need to establish _which_ human rights ICANN should
> respect (more). The way I interpret the core value is that the
> applicability of (‘internationally recognised') rights is determined by
> ‘applicable law’. ‘As required’.
>
> Furthermore, the core value does not speak of ‘commit’ or a ‘commitment’ -
> because it is a core value. Together with the other values, and that could
> be a balancing act, it ‘should also guide the decisions and actions of
> ICANN’.
>
> (The ‘also’ refers to the commitments in section 1.2)
>
> -Bastiaan
>
> > On 27 Sep 2016, at 19:56, Greg Shatan <gregshatanipc at gmail.com> wrote:
> >
> > You seem to assume that the Framework will deal with rights at the
> granular level.  I don't think it needs to or should.  The question is
> "What human rights is ICANN committed to respect?"  I don't think the
> answer should be "Some of them."
> >
> > On Tue, Sep 27, 2016 at 1:50 PM, Daniel Appelman <dappelman at mh-llp.com>
> wrote:
> > Some human rights are obviously more applicable to ICANN than others.
> ICANN’s framework should focus on those in particular.  If that’s
> “cherry-picking” then I don’t understand how anyone could object to it.
> Why would the framework even bother with human rights that are inapplicable
> to ICANN’s mission and activities?  It’s just not logical.
> >
> >
> >
> > From: ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] On
> Behalf Of Greg Shatan
> > Sent: Tuesday, September 27, 2016 10:42 AM
> > To: Schweighofer Erich
> > Cc: ws2-hr at icann.org
> > Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
> >
> >
> >
> > A response on Erich's last point:
> >
> >
> >
> > WS2-HR should focus on the freedom of communication worldwide, subject
> to usual safeguard clauses + the international human rights treaty
> obligations.
> >
> >
> >
> > This sounds suspiciously like "cherry-picking" (i.e., picking and
> choosing among human rights obligation), and I am firmly opposed to that.
> Also while human rights treaty obligations are relevant (and we need to
> determine what we are referring to as such) they do not bind ICANN, except
> to the extent they have been adopted and codified by applicable laws.  The
> Bylaw doesn't take us further than that.
> >
> >
> >
> > It is not cherry-picking, it is a suggestion which human rights are
> relevant to be considered. Free communication should be the main concern.
> >
> > You are right that human rights treaties formally do not bind ICANN but
> that sound not good in practice. We have to substitute this by
> self-commitment, as we do now.
> >
> >
> >
> > We've been using the term cherry-picking to mean just that -- picking
> and choosing, menu-style, from the list of human rights and deciding that
> some are going to be considered and some won't.  Whatever you call it, I'm
> opposed to it.  I'm not opposed to choosing among human rights conventions
> and instruments; indeed, we must do that.  But within, e.g., the UDHR, we
> should not be picking, we need to take it whole as a document.   The extent
> of ICANN's commitment to human rights is stated in the Bylaw, --  to
> respect internationally recognized human rights as required by applicable
> law.  This is critical in three ways: (1) ICANN's commitment is one of
> "respecting" (and not protecting or enforcing) human rights (and we need to
> define what "respect" means in the context of ICANN, which unfortunately
> does not align with Ruggie's idea of respect for business enterprises); (2)
> ICANN must look to "internationally recognized human rights" -- no more and
> no less; and (3) ICANN's commitment is limited to what is "required by
> applicable law."  ICANN could go further of course (e.g., it could ensure
> there are gluten free food options at every ICANN meeting and event), but
> that is not a Bylaws issue and thus not a Framework of Interpretation issue.
> >
> >
> >
> > Greg
> >
> >
> >
> >
> >
> >
> >
> >
> >
> > On Tue, Sep 27, 2016 at 12:14 PM, Schweighofer Erich <
> erich.schweighofer at univie.ac.at> wrote:
> >
> > My clarifications „inline“. Sorry for quick drafting and being unclear.
> >
> > Erich Schweighofer
> >
> >
> >
> > Von: Greg Shatan [mailto:gregshatanipc at gmail.com]
> > Gesendet: Dienstag, 27. September 2016 17:35
> > An: Schweighofer Erich
> > Cc: Niels ten Oever; ws2-hr at icann.org
> > Betreff: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
> >
> >
> >
> > I agree in part and disagree in part:
> >
> >
> >
> > On Tue, Sep 27, 2016 at 6:05 AM, Schweighofer Erich <
> erich.schweighofer at univie.ac.at> wrote:
> >
> > ...
> >
> >
> >
> > The more I read about Ruggie Principles I am convinced that they do not
> really fit for ICANN.
> >
> > 
> >
> > I tend to agree with this.
> >
> >
> >
> > The hard legal core of ICANN's obligations is much less, even depending
> on the various jurisdictions.
> >
> >
> >
> > I'm not sure what this means.  If it means that there are Ruggie
> obligations that don't fit ICANN, then I agree.  Otherwise, this needs
> further explanation.
> >
> >
> >
> > Yes – Ruggie do not fit properly. ICANN is essential for a global
> communication platform and must respect related human rights –the “hard
> core”, subject to the interpretation in the various jurisdictions.
> >
> >
> >
> > ICANN is inclusive, e.g. also flexible.
> >
> >
> >
> > Again not sure what this means.  If this means that ICANN must be
> inclusive of, e.g., New gTLD applicants and ccTLD operators (governments
> and otherwise), whether or not they comply with human rights provision,
> then I agree.  ICANN can't be a human rights filter for the Internet.  If
> this means something else, it needs further explanation. 
> >
> >
> >
> > It means that we cannot oblige new gTLD applicants or ccTLD operators to
> comply with human rights above the national interpretation of human rights
> obligations. There are other fora to discuss compliance with human rights
> standards.
> >
> >
> >
> > WS2-HR should focus on the freedom of communication worldwide, subject
> to usual safeguard clauses + the international human rights treaty
> obligations.
> >
> >
> >
> > This sounds suspiciously like "cherry-picking" (i.e., picking and
> choosing among human rights obligation), and I am firmly opposed to that.
> Also while human rights treaty obligations are relevant (and we need to
> determine what we are referring to as such) they do not bind ICANN, except
> to the extent they have been adopted and codified by applicable laws.  The
> Bylaw doesn't take us further than that.
> >
> >
> >
> > It is not cherry-picking, it is a suggestion which human rights are
> relevant to be considered. Free communication should be the main concern.
> >
> > You are right that human rights treaties formally do not bind ICANN but
> that sound not good in practice. We have to substitute this by
> self-commitment, as we do now.
> >
> >
> >
> > In an ethical code of ICANN, we can go much further, and here we can
> re-use Ruggie to some extent.
> >
> >
> >
> > An "ethical code of ICANN" is far, far beyond the mandate and scope of
> this subgroup.  Our task is to provide a framework for interpreting the
> Bylaw.
> >
> >
> >
> > It is good to work on an idealistic world but we have to realistic, too.
> >
> >
> >
> > That I can agree with.
> >
> > 
> >
> >
> >
> > Best, Erich Schweighofer
> >
> > Greg
> >
> >
> >
> >
> > -----Ursprüngliche Nachricht-----
> > Von: ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] Im
> Auftrag von Niels ten Oever
> > Gesendet: Dienstag, 27. September 2016 11:18
> > An: ws2-hr at icann.org
> > Betreff: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
> >
> >
> > Dear all,
> >
> > Please find underneath and attached the proposed agenda for the call of
> September 27, 19:00 UTC.
> >
> > Comments and suggestions are welcome.
> >
> > 1. Administrivia
> > Roll call, absentees, SoIs, etc
> > 2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding
> Principles 15, 13, 19 3. AOB
> >
> > Best,
> >
> > Niels
> >
> >
> > --
> > Niels ten Oever
> > Head of Digital
> >
> > Article 19
> > www.article19.org
> >
> > PGP fingerprint    8D9F C567 BEE4 A431 56C4
> >                    678B 08B5 A0F2 636D 68E9
> >
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> >
> >
> >
> >
> >
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