[Ws2-hr] [Ws2-jurisdiction] [CCWG-ACCT] Scope of mandate on HR FOI

Mon Jan 30 18:05:42 UTC 2017

Dear all,
Regarding the items listed by Greg, I do think it would be helpful to talk through these but I think it would unproductive to do so without putting the FOI itself out for public comment.  I strongly suggest we ask the plenary to put the draft FOI out for public comment and note in the public comment that we are asking for input in relation to certain of the bullet points that Greg has outlined.  (I copy the Chairs since I do not know whether there is any procedural barrier to such an approach and we want to do this in a way to complete work by May 2017.)

We are familiar with our own work and the reasoning and compromise behind it but we need a “check” on that work before we proceed with addressing suggestions for items listed in Greg’s bullet points.

So I think we should ask the plenary to put the FOI out for interim public comment in the following manner:

The CCWG-ACCT WS2 Human Rights subteam is soliciting public comment with respect to its draft Human Rights Framework of Interpretation.  Input from public comment will be considered by the subteam and will influence further work to be completed by the subteam no later than May 2017, including possible changes to the existing draft FOI.  Such further work will primarily address suggestions for how the HR FOI should be interpreted in relation to the following bullet points:
•         Consider the policies and frameworks, if any, that ICANN needs to develop or enhance in order to fulfill its commitment to respect Human Rights.
•         Consistent with ICANN’s existing processes and protocols, consider how these new frameworks should be discussed and drafted to ensure broad multistakeholder involvement in the process.
•         Consider what effect, if any, this Bylaw would have on ICANN’s consideration of advice given by the Governmental Advisory Committee (GAC).
•         Consider how, if at all, this Bylaw will affect how ICANN’s operations are carried out.
•         Consider how the interpretation and implementation of this Bylaw will interact with existing and future ICANN policies and procedures.

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From: ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Friday, January 27, 2017 1:54 PM
To: matthew shears; <ws2-hr at icann.org>
Subject: Re: [Ws2-hr] [Ws2-jurisdiction] [CCWG-ACCT] Scope of mandate on HR FOI

Matthew,

Thanks for your response, and I'm glad to see we are converging in our thinking.  I'm replying primarily to redirect this to the Human Rights mailing list -- you replied to the one I sent in error to the Jurisdiction list.  Clearly a Freudian slip on my part.

Greg

On Fri, Jan 27, 2017 at 3:49 PM, matthew shears <mshears at cdt.org<mailto:mshears at cdt.org>> wrote:

Hi Greg - yes, see inline
On 27/01/2017 19:42, Greg Shatan wrote:

I tend to agree for the most part with Tatiana.

We have been asked to "confirm that [the Human Rights subgroup] it has completed developing the Human Rights FOI per Annex 12."  This can't be a rubber stamp. We need to satisfy ourselves that this FoI really reflects how and that we have considered each of the following:

•         Consider which specific Human Rights conventions or other instruments, if any, should be used by ICANN in interpreting and implementing the Human Rights Bylaw.
•         Consider the policies and frameworks, if any, that ICANN needs to develop or enhance in order to fulfill its commitment to respect Human Rights.
•         Consistent with ICANN’s existing processes and protocols, consider how these new frameworks should be discussed and drafted to ensure broad multistakeholder involvement in the process.
•         Consider what effect, if any, this Bylaw would have on ICANN’s consideration of advice given by the Governmental Advisory Committee (GAC).
•         Consider how, if at all, this Bylaw will affect how ICANN’s operations are carried out.
•         Consider how the interpretation and implementation of this Bylaw will interact with existing and future ICANN policies and procedures.
I agree we need to have this discussion.

Do we want "consider" to be synonymous with "duly take into account" which can be satisfied by reviewing and considering an element (say, a public comment) and then deciding that nothing will be as a result of that review?  At the very least, we need to make sure we did the "review and consider" part.  If no changes need to be made in the FoI on a given point, then we should be able to say why we came to that conclusion.
Agree.  As I suggested in my e-mail.

We need to have a substantial discussion to determine whether the FoI reflects that we have considered each of these elements, and reflects the outcome of that consideration.

Until we do this, I strongly question whether the Framework of Interpretation document is ready for Public Comment. If we decided that separate documents/annexes/etc. were needed, then perhaps this could be put out for comment.  But I question that as well.  Those really are parts of the FoI package, and would also need to be put out for Public Comment before the Bylaw graduates from "dormant" status.  Wouldn't it be better to have the whole package out there at once?  As an alternative, we could put the FoI out for a second set of comments while putting the added pieces out for first comments (and possibly only comments).
Preferably one time - anything else will be confusing.

Also, the determination of the Co-Chairs was that we follow Annex 12, rather than Annex 6.  Annex 12 calls for a single integrated document reflecting all considerations.  Annex 6 calls for follow-on documents.  Since we are going with Annex 12 any additional material needed to reflect our "consideration" must be in the FoI itself.
If it is appropriately considered and necessary, yes.

One last point.  I think that the open-ended invitation to "
develop suggestions for ICANN implementing the HR FOI
"
 goes beyond our mandate.  The only implementation advice we should be giving would be as a result of "considering" the 6 bullet points above. One could say there is an express or implied element of implementation (or more accuerately "implementation guidance," which is not quite the same thing)
 in each of these bullet points.
Some of those bullets are clearly related to implementation - which is, while important to consider for the FoI, beyond our mandate.  Now, if we wished to go down that route that would be separate to the FoI.

A textual analysis of the Bylaw, no matter how excellent it is, does not satisfy any of these points.  And going beyond these points into an unfettered discussion of suggestions for Implementation would be going too far.
A delicate balance for sure, but one we can address.

Matthew

So, I'm sorry to say, we're not there yet.

Greg

On Fri, Jan 27, 2017 at 1:15 PM, Seun Ojedeji <seun.ojedeji at gmail.com<mailto:seun.ojedeji at gmail.com>> wrote:
Thanks, do find inline:

On Jan 26, 2017 2:11 PM, "León Felipe Sánchez Ambía" <leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>> wrote:
Dear all,

Considering these and other factors the Co-Chairs would recommend that the Human Rights sub-group confirm that it has completed developing the Human Rights FOI per Annex 12 of the CCWG-Accountability WS1 Recommendations.

SO: Exact question that I have been asking as well, which also implies that it's not helpful to put the draft FoI to public comment without getting clear response on the point above!

Should the sub-group feel that it should develop suggestions for ICANN implementing the HR FOI based on its work to date the Co-Chairs would be amenable to this and would invite the HR sub-group to submit any such suggestions to the plenary for consideration by early May 2017, if there was no objection from the plenary.

SO: May I ask the Co-Chairs to clarify what part of the WS1 report mandates the HR subgroup to carry out the task above or is this WS2 assigning a new task to the subgroup?. Like I have said, it seem to me that all HR needed to produce was the FoI and they just need to confirm if the draft they sent was done is consideration of Annex 12 period!

Regards

Best regards,

Thomas, Mathieu and León

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