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

Mon Jan 30 18:15:58 UTC 2017

Hi,

Such wording as proposed by Anne would be fine so long as multiple public
comments is planned (and intended) for a subgroup work.

Cheers!

Sent from my LG G4
Kindly excuse brevity and typos

On Jan 30, 2017 7:06 PM, "Aikman-Scalese, Anne" <AAikman at lrrc.com> wrote:

> 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.
>
>
>
>
>
>
>
> *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
>
>
>
> *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> 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>
> wrote:
>
> Thanks, do find inline:
>
>
>
> On Jan 26, 2017 2:11 PM, "León Felipe Sánchez Ambía" <
> 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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> --
>
> ------------
>
> Matthew Shears
>
> Global Internet Policy and Human Rights
>
> Center for Democracy & Technology (CDT)
>
> + 44 771 2472987 <+44%207712%20472987>
>
>
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