[Ws2-hr] HR-FOI -On the need for Practical Reflection on ICANN Processes and Protocols
Kavouss Arasteh
kavouss.arasteh at gmail.com
Mon Mar 6 07:36:45 UTC 2017
Dear Anne,
Thanks for your reading.
We have studied all principles . Unfortunately some people including those
from IPC did not agree to refer to them at all .
Now IPC believe that principle 18 may generate similar inconclusive
discussion again.
Regards
Kavouss
2017-03-05 22:31 GMT+01:00 Aikman-Scalese, Anne <AAikman at lrrc.com>:
> P.S. I have resolved to study Ruggie on the plane to Copenhagen to see
> whether there are specific principles that make sense. I have a vague
> recollection that Guiding Principle 18(b) was most appropriate in the ICANN
> context.
>
>
>
> Separately, I link below some further information regarding protecting the
> Intellectual Property rights of indigenous peoples:
>
>
>
>
>
> http://www.aph.gov.au/About_Parliament/Parliamentary_
> Departments/Parliamentary_Library/pubs/rp/RP9697/97rp20
>
>
>
> https://www.culturalsurvival.org/publications/cultural-
> survival-quarterly/protecting-indigenous-intellectual-
> property-rights-tools
>
>
>
> *Anne E. Aikman-Scalese*
>
> Of Counsel
>
> 520.629.4428 <(520)%20629-4428> office
>
> 520.879.4725 <(520)%20879-4725> fax
>
> AAikman at lrrc.com
>
> _____________________________
>
> Lewis Roca Rothgerber Christie LLP
>
> One South Church Avenue, Suite 700
>
> Tucson, Arizona 85701-1611
>
> lrrc.com
>
>
>
> *From:* Aikman-Scalese, Anne
> *Sent:* Wednesday, March 01, 2017 12:11 PM
> *To:* Aikman-Scalese, Anne; 'Niels ten Oever'; 'Kavouss Arasteh'
> *Cc:* '<ws2-hr at icann.org>'
> *Subject:* RE: [Ws2-hr] HR-FOI -On the need for Practical Reflection on
> ICANN Processes and Protocols
>
>
>
> Sorry meant to say see you in Copenhagen, not Helsinki.
>
>
>
> *Anne E. Aikman-Scalese*
>
> Of Counsel
>
> 520.629.4428 <(520)%20629-4428> office
>
> 520.879.4725 <(520)%20879-4725> 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
> <ws2-hr-bounces at icann.org>] *On Behalf Of *Aikman-Scalese, Anne
> *Sent:* Wednesday, March 01, 2017 11:02 AM
> *To:* 'Niels ten Oever'; 'Kavouss Arasteh'
> *Cc:* '<ws2-hr at icann.org>'
> *Subject:* [Ws2-hr] HR-FOI -On the need for Practical Reflection on ICANN
> Processes and Protocols
>
>
>
> Dear all,
>
> I would like to bring forth another example of how ICANN works on a
> practical level in order to try to persuade the subgroup to reconsider my
> proposed language regarding the possible need to balance Human Rights, one
> in relation to the other, in addition to balancing Core Values.
>
>
>
> We have, as a very practical example, the work of the Expert Working Group
> on WhoIs/Registry Directory Services. This group consisted of many of the
> most experienced and finest minds within the ICANN community. This group
> struggled many months to arrive at compromises in relation to the
> recommendations surrounding WhoIs. Without specifically saying so, they
> ended up balancing many Human Rights considerations as well as public
> policy and safety considerations of concern to the GAC as well as human
> rights of authors (copyright and trademark holders) of concern to the
> private sector. Thus, a system was recommended relative to providing
> information on a need to know basis to the private sector and a higher
> level of access for purposes of enforcement against crime and fraud.
> (Again, to the extent the private sector is unable to enforce, government
> will be expected by consumers to do so.)
>
>
>
> So it is clear that in connection with gTLD policy, the Community has
> already been involved in balancing Human Rights in addition to balancing
> Core Values. This work continues in the Registry Directory Services PDP,
> the Rights Protection Mechanisms Review, and the Subsequent Procedures WG.
> (Niels had stated in Helsinki that he would be happy to add Rights of
> Authors to the agenda of the CCWP – HR work with these groups.)
>
>
>
> So I think it is quite worthwhile for this group to anticipate and discuss
> how the FOI-HR may affect the ongoing processes listed above and it is
> certainly appropriate for the Considerations document to make a short
> reference to the possible need to balance Human Rights in relation to each
> other in policy-making activities. This is not implementation. This is a
> recognition in the Considerations document of what is going on right now
> within ICANN as a practical matter.
>
>
>
> Perhaps there are those who are hoping that if we remain vague on this
> need to balance Human Rights in the policy-making process, each one can
> press his or her point with more effect when the time comes. Perhaps some
> will insist that certain Human Rights are absolute while others or not.
> This would be the dreaded "cherry-picking" we have agreed to avoid.
>
>
>
> Further, some may hope that if we make no comment as to the availability
> of RFR and IRP to challenge Board decisions, then the Board can readily be
> attacked for not being aggressive enough in respecting Human Rights. In
> this regard, I cannot agree with the "fly below the radar" approach to this
> very practical aspect of the possible effect of the FOI-HR and the various
> "Considerations".
>
> On the contrary, we need to consider bringing more clarity to the document
> in relation to the possibility of Requests for Reconsideration and
> Independent Review. (If I am wrong about this possibility of RFRs and IRPs
> in relation to Human Rights, I am sure Greg Shatan will correct me.)
>
>
>
> The current ByLaws appear to presume that once the FOI-HR is in place,
> then the RFR and IRP processes kick in and are applicable. This is why it
> is critical that our Considerations document not remain vague on the
> important points of the applicability (or not) of the Ruggie Principles and
> the need to balance Human
> Rights considerations one against the other in policy-making. Whether or
> not we reach consensus is also quite important. As a reminder regarding
> what the revised ByLaws actually say (underlining for emphasis is mine):
>
>
>
> Section 27.2. HUMAN RIGHTS
>
> (a) The Core Value set forth in Section 1.2(b)(viii) shall have no force
> or effect
>
> unless and until a framework of interpretation for human rights (“FOI-HR”)
> is (i)
>
> approved for submission to the Board by the CCWG-Accountability *as a*
>
> *consensus recommendation in Work Stream 2*, with the CCWG Chartering
>
> Organizations having the role described in the CCWG-Accountability Charter,
>
> and (ii) approved by the Board, in each case, using the same process and
>
> criteria as for Work Stream 1 Recommendations.
>
> (b) No person or entity shall be entitled to invoke *the reconsideration
> process*
>
> provided in Section 4.2, or the *independent review process* provided in
>
> Section 4.3, based solely on the inclusion of the Core Value set forth in
>
> Section 1.2(b)(viii) (i) *until after the FOI-HR contemplated by Section
> 27.2(a)*
>
> *is in place *or (ii) for actions of ICANN or the Board that occurred
> prior to the
>
> effectiveness of the FOI-HR.
>
>
>
> Thus, failing to address these practical issues in the Considerations
> document in relation to Annex 12 which asks that we consider the FOI-HR in
> relation to ICANN Processes and Protocols is a shirking of responsibility.
> We must resolve to attempt to assist ICANN to operate efficiently with
> respect to Human Rights. Bottle necks at the Board level due to
> conflicting policy advice are bad for the Community and bad for trust and
> confidence in the Internet. We need to describe Considerations in a way
> that reflects the practical operation of ICANN and to promote a system that
> does not put the Board in a constant state of reluctance to make a
> decision for fear of RFR and IRP actions.
>
>
>
> Looking forward to seeing as many of you who can attend in Helsinki as
> well as to the remote participation of those unable to attend.
>
>
>
> Anne
>
>
>
>
>
> *Anne E. Aikman-Scalese*
>
> Of Counsel
>
> 520.629.4428 <(520)%20629-4428> office
>
> 520.879.4725 <(520)%20879-4725> 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: Aikman-Scalese, Anne
> Sent: Wednesday, March 01, 2017 9:49 AM
> To: 'Niels ten Oever'; Kavouss Arasteh
> Cc: <ws2-hr at icann.org>
> Subject: RE: [Ws2-hr] Proposed Agenda FIRST READING considerations
> document Feb 28 19:00 UTC
>
>
>
> Niels,
>
> "without prejudice" is fine language. The fact is the ICANN Board must
> have a 60% vote to reject GAC public policy advice.
>
>
>
> Why else are we locked up on IOC/RC issues? Let's recognize how ICANN
> really works so we can have a realistic discussion of how the FOI HR will
> affect ICANN processes and protocols.
>
> Anne
>
>
>
> Anne E. Aikman-Scalese
>
> Of Counsel
>
> 520.629.4428 <(520)%20629-4428> office
>
> 520.879.4725 <(520)%20879-4725> 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: Niels ten Oever [mailto:lists at nielstenoever.net
> <lists at nielstenoever.net>]
>
> Sent: Wednesday, March 01, 2017 5:37 AM
>
> To: Aikman-Scalese, Anne; Kavouss Arasteh
>
> Cc: <ws2-hr at icann.org>
>
> Subject: Re: [Ws2-hr] Proposed Agenda FIRST READING considerations
> document Feb 28 19:00 UTC
>
>
>
> Hi Anne,
>
>
>
> In Article 1, Principles 2 of GAC Operating Principles:
>
>
>
> ______________
>
>
>
> Principle 2
>
>
>
> The GAC shall provide advice and communicate issues and views to the ICANN
> Board. The GAC is not a decision making body. Such advice given by the GAC
> shall be without prejudice to the responsibilities of any public authority
> with regard to the bodies and activities of ICANN, including the Supporting
> Organisations and Councils.
>
>
>
> ______________
>
>
>
> The GAC advises on policies, and does not create them. I think other
> interpretations might leads us into long complicated discussions.
>
>
>
> Best,
>
>
>
> Niels
>
>
>
>
>
>
>
> On 02/28/2017 09:03 PM, Aikman-Scalese, Anne wrote:
>
> > GAC absolutely does, from a practical standpoint, develop policies. It
> is mandated to advise the ICANN Board with respect to public policy and
> that results in policy recommendations. These public policy
> recommendations have special effect under the ByLaws when they are
> Consensus policies as to which the Board is advised.
>
> >
>
> > It is fiction that the GAC does not develop policy. Public policy is
> the role of the GAC. It directly affects gTLD policy. Otherwise, no GAC
> safeguards would exist as to certain strings, e.g. .bank, etc. etc. etc.
> Thank goodness for the GAC. Consumers would be in big trouble without the
> GAC and consumer trust and confidence is already challenged on the Internet.
>
> > Anne
>
> >
>
> > Anne E. Aikman-Scalese
>
> > Of Counsel
>
> > 520.629.4428 <(520)%20629-4428> office
>
> > 520.879.4725 <(520)%20879-4725> 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
> <ws2-hr-bounces at icann.org>] On
>
> > Behalf Of Niels ten Oever
>
> > Sent: Tuesday, February 28, 2017 11:49 AM
>
> > To: Kavouss Arasteh
>
> > Cc: <ws2-hr at icann.org>
>
> > Subject: Re: [Ws2-hr] Proposed Agenda FIRST READING considerations
>
> > document Feb 28 19:00 UTC
>
> >
>
> > Dear Kavouss,
>
> >
>
> > There are no policies developed in the GAC, so this makes the GAC
> different from the GNSO, CCNSO, and ASO, right?
>
> >
>
> > Best,
>
> >
>
> > Niels
>
> >
>
> > On Tue, Feb 28, 2017 at 07:36:16PM +0100, Kavouss Arasteh wrote:
>
> >> Dear Niels,
>
> >> I understand that the question referring to GAC Advice then pls add
>
> >> the same text to the Policy development under GNSO and CCNSO by
>
> >> replacing GAC by these two entities.
>
> >> I have proposed that version earlier but you did not consider it.
>
> >> What I wish is to treat all entities providing Recommendations and
>
> >> Advice EQUALY.
>
> >> Some GNSO, IPC, ccNSO participants pushing to marginalize GAC again.
>
> >> Pls kindly understand the problem
>
> >> Regards
>
> >> Kavouss
>
> >>
>
> >>
>
> >> 2017-02-28 12:38 GMT+01:00 Niels ten Oever <lists at nielstenoever.net>:
>
> >>
>
> >>> Dear Kavouss,
>
> >>>
>
> >>> On 02/28/2017 10:03 AM, Kavouss Arasteh wrote:
>
> >>>> Dear Niels,
>
> >>>> Thank you very much for the file.
>
> >>>> I still have serious difficulties to treat GNSO and ccNSO
>
> >>>> Recommendations from GAC Advice. Unless all three are not treated
>
> >>>> equally , I would continue to object to the texts proposed.
>
> >>>
>
> >>> The consideration is responding to a direct question about the GAC,
>
> >>> that is why only GAC is explicitly mentioned there.
>
> >>>
>
> >>>
>
> >>>> I also have problem with the term " HUMAN RIGHTS BYLAW as there is
>
> >>>> no Bylaw for human rights .Perhaps we should say Human Rights
>
> >>>> mentioned in Bylaw.
>
> >>>
>
> >>> OK, I propose that we consistently use Human Rights Core Value, so
>
> >>> that there will be no confusion about what is meant.
>
> >>>
>
> >>>> I therefore attaching my comments in a revised version of the doc.,
>
> >>>
>
> >>> Thanks,
>
> >>>
>
> >>> Niels
>
> >>>
>
> >>>> Regards
>
> >>>> Kavouss
>
> >>>>
>
> >>>>
>
> >>>> 2017-02-28 8:26 GMT+01:00 <Jorge.Cancio at bakom.admin.ch
>
> >>>> <mailto:Jorge.Cancio at bakom.admin.ch <Jorge.Cancio at bakom.admin.ch>>>:
>
> >>>>
>
> >>>> Dear Niels and all____
>
> >>>>
>
> >>>> __ __
>
> >>>>
>
> >>>> Further to the comment below, please find attached a version of
> the
>
> >>>> document with further suggestions and comments/questions (which I
>
> >>>> have also included in the Google Doc).____
>
> >>>>
>
> >>>> __ __
>
> >>>>
>
> >>>> It is unfortunate that I can no longer attend the meetings as they
>
> >>>> always are at the same time and at least in Europe fall in the
>
> >>>> evening, where other commitments and obligations of a different
>
> >>>> nature are due. Maybe we could reconsider the non-rotation of the
>
> >>>> meetings…____
>
> >>>>
>
> >>>> __ __
>
> >>>>
>
> >>>> Nonetheless, I hope that these comments may be taken on board
> during
>
> >>>> today’s call. ____
>
> >>>>
>
> >>>> __ __
>
> >>>>
>
> >>>> @staff: please mention my comments during the call, as if I was
>
> >>>> there J____
>
> >>>>
>
> >>>> __ __
>
> >>>>
>
> >>>> Kind regards____
>
> >>>>
>
> >>>> __ __
>
> >>>>
>
> >>>> Jorge ____
>
> >>>>
>
> >>>> __ __
>
> >>>>
>
> >>>> __ __
>
> >>>>
>
> >>>> __ __
>
> >>>>
>
> >>>> *Von:*Cancio Jorge BAKOM
>
> >>>> *Gesendet:* Dienstag, 28. Februar 2017 06:38
>
> >>>> *An:* Niels ten Oever <lists at nielstenoever.net
>
> >>>> <mailto:lists at nielstenoever.net <lists at nielstenoever.net>>>;
> ws2-hr at icann.org
>
> >>>> <mailto:ws2-hr at icann.org <ws2-hr at icann.org>>
>
> >>>> *Betreff:* AW: [Ws2-hr] Proposed Agenda FIRST READING
> considerations
>
> >>>> document Feb 28 19:00 UTC____
>
> >>>>
>
> >>>> __ __
>
> >>>>
>
> >>>> Dear Niels____
>
> >>>>
>
> >>>> __ __
>
> >>>>
>
> >>>> While I will not be able to attend the call this evening, I
> disagree
>
> >>>> with the wording of this sentence:____
>
> >>>>
>
> >>>> __ __
>
> >>>>
>
> >>>> "However, there was not sufficient support to recommend the
>
> >>>> application of the UN Guiding Principles for the /interpretation
> /of
>
> >>>> the Bylaw."____
>
> >>>>
>
> >>>> __ __
>
> >>>>
>
> >>>> The WG did not reach consensus or did not reach agreement - which
> is
>
> >>>> the way we worked. Saying that "there was not sufficient support"
>
> >>>> mischaracterizes the way we work(ed) and may imply that there was
>
> >>>> some sort of voting, which was not the case.____
>
> >>>>
>
> >>>> __ __
>
> >>>>
>
> >>>> Therefore I would propose the following text:____
>
> >>>>
>
> >>>> __ __
>
> >>>>
>
> >>>> "However, there was no agreement on whether to recommend the
>
> >>>> application of the UN Guiding Principles for the /interpretation
> /of
>
> >>>> the Bylaw."____
>
> >>>>
>
> >>>> __ __
>
> >>>>
>
> >>>> Hope you may take this on board.____
>
> >>>>
>
> >>>> __ __
>
> >>>>
>
> >>>> regards____
>
> >>>>
>
> >>>> __ __
>
> >>>>
>
> >>>> Jorge____
>
> >>>>
>
> >>>> __ __
>
> >>>>
>
> >>>> __ __
>
> >>>>
>
> >>>> ------------------------------------------------------------
>
> >>> ------------
>
> >>>>
>
> >>>>
>
> >>>> *Von:* Niels ten Oever <lists at nielstenoever.net
>
> >>>> <mailto:lists at nielstenoever.net <lists at nielstenoever.net>>>
>
> >>>> *Datum:* 28. Februar 2017 um 01:16:01 MEZ
>
> >>>> *An:* ws2-hr at icann.org <mailto:ws2-hr at icann.org
> <ws2-hr at icann.org>><ws2-hr at icann.org
>
> >>>> <mailto:ws2-hr at icann.org <ws2-hr at icann.org>>>
>
> >>>> *Betreff:* [Ws2-hr] Proposed Agenda FIRST READING considerations
>
> >>>> document Feb 28 19:00 UTC____
>
> >>>>
>
> >>>> __ __
>
> >>>>
>
> >>>> Dear all,
>
> >>>>
>
> >>>> It is with great pleasure that I can share with you the draft
>
> >>>> agenda
>
> >>> for
>
> >>>> the meeting of February 28, 19:00 UTC.
>
> >>>>
>
> >>>> The drafting group worked hard after the constructive session
>
> >>>> last
>
> >>> week.
>
> >>>> With this document we might have arrived at a new milestone.
>
> >>>>
>
> >>>> I am very much looking forward to have a first reading of the
>
> >>>> Considerations document with you in the call. As previously
>
> >>> discussed,
>
> >>>> the Consideration document will be merged into one document
>
> >>>> with the
>
> >>> FoI
>
> >>>> upon approval by the subgroup.
>
> >>>>
>
> >>>> I am greatly looking forward to discuss this with you on the call.
>
> >>>>
>
> >>>> Please find the proposed agenda underneath and attached, as
>
> >>>> well as
>
> >>> the
>
> >>>> document.
>
> >>>>
>
> >>>> 1. Administrivia
>
> >>>> Roll call, absentees, SoIs, etc
>
> >>>> 2. First reading (of two) of the Considerations document
>
> >>>> prepared by
>
> >>> the
>
> >>>> drafting team
>
> >>>> 3. AOB
>
> >>>>
>
> >>>> The document can also be found here:
>
> >>>>
>
> >>>> https://docs.google.com/document/d/1KJfmglI5wBib7T5hgIMMysO7x6J3O
>
> >>> i5NYwN4AItZjkY/edit
>
> >>>>
>
> >>>> <https://docs.google.com/document/d/1KJfmglI5wBib7T5hgIMMysO7x6J3O
>
> >>> i5NYwN4AItZjkY/edit>
>
> >>>>
>
> >>>> Please let me know if you have any question or suggestions.
>
> >>>>
>
> >>>> All the best,
>
> >>>>
>
> >>>> Niels
>
> >>>> --
>
> >>>> Niels ten Oever
>
> >>>> Head of Digital
>
> >>>>
>
> >>>> Article 19
>
> >>>> www.article19.org <http://www.article19.org>
>
> >>>>
>
> >>>> PGP fingerprint 8D9F C567 BEE4 A431 56C4
>
> >>>> 678B 08B5 A0F2 636D 68E9____
>
> >>>>
>
> >>>>
>
> >>>> _______________________________________________
>
> >>>> Ws2-hr mailing list
>
> >>>> Ws2-hr at icann.org <mailto:Ws2-hr at icann.org <Ws2-hr at icann.org>>
>
> >>>> https://mm.icann.org/mailman/listinfo/ws2-hr
>
> >>>> <https://mm.icann.org/mailman/listinfo/ws2-hr>
>
> >>>>
>
> >>>>
>
> >>>
>
> >>> --
>
> >>> Niels ten Oever
>
> >>> Head of Digital
>
> >>>
>
> >>> Article 19
>
> >>> www.article19.org
>
> >>>
>
> >>> PGP fingerprint 8D9F C567 BEE4 A431 56C4
>
> >>> 678B 08B5 A0F2 636D 68E9
>
> >>>
>
> >
>
> > --
>
> >
>
> > Niels ten Oever
>
> > Head of Digital
>
> >
>
> > Article 19
>
> > www.article19.org
>
> >
>
> > PGP fingerprint 2458 0B70 5C4A FD8A 9488
>
> > 643A 0ED8 3F3A 468A C8B3
>
> >
>
> >
>
> > ________________________________
>
> >
>
> > This message and any attachments are intended only for the use of the
> individual or entity to which they are addressed. If the reader of this
> message or an attachment is not the intended recipient or the employee or
> agent responsible for delivering the message or attachment to the intended
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>
> >
>
>
>
> --
>
> 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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