[CCWG-ACCT] CCWG list summary, Jan 30 to Feb 5

Thu Feb 19 17:10:04 UTC 2015

Hi,

I am not sure i get the distinction about ICANN being private organisation,
does it mean there is also problem with all RIR that are setup as a
not-for-profit organisation like ICANN. I think the factors you indicate as
elements of multistakeholderism are adequately covered within the "public
interest" phrase.

What matters most for a non-legal individual like me is that i always have
the opportunity to participate in the policy development process that would
determine how i get served by ICANN. So long as i get that, my rights are
covered and multistakeholderism will be felt to be in action.

Regards

On Thu, Feb 19, 2015 at 5:16 PM, Robin Gross <robin at ipjustice.org> wrote:

> The problem is that ICANN is a private corporation and it is engaging in
> public governance functions.  The quasi public-private structure creates a
> challenge because if it were a traditional government, it would be required
> to respect human rights in the performance of public governance functions,
> and some argue that because it is a private corporation it has no
> obligation to respect rights (years ago ICANN's lawyers argued in the xxx
> case that, as a contractee to the US Govt, it was obligated to protect free
> expression).
>
> So the traditional framework breaks down because we've got a private
> corporation undertaking public governance functions, but without the
> traditional protections (respecting human rights) in the performance of
> those public functions.
>
> If this "hole" is not plugged, the multi-stakeholder model is inadequate
> for Internet governance.  "Out-sourcing" public governance functions to
> private corporations is fine, so long as we don't lose the protections
> afforded by public governance institutions.   If there is no duty to
> protect free expression and privacy by those organizations who set policies
> governing the Internet, we've taken a step-backward with
> multi-stakholderism, although it is not too late to fix.
>
> At its core, what I'm arguing here is that ICANN should respect free
> speech, privacy, and due process rights in its carrying out of its public
> governance functions, so when ICANN makes a policy, it doesn't derogate
> from the fundamental rights afforded to Internet users in traditional
> governance institutions.  If ICANN wants to engage in public governance
> functions, it must accept public governance responsibilities.
>
> Best,
> Robin
>
>
> On Feb 18, 2015, at 4:36 PM, Greg Shatan wrote:
>
> Carlos:
>
> Nobody's reducing anything.
>
> First off, the First Amendment is really irrelevant to this discussion, as
> wonderful as it is.  It prevents *the federal government from making laws*
> abridging freedom of speech, freedom of the press, freedom of assembly or
> respecting an establishment of religion.  We are not talking about actions
> of the U.S. government here, and ICANN has never been considered a part of
> the U.S. government.  The First Amendment does not apply to private
> entities.  So the First Amendment really has nothing to do with this
> conversation, other than to confuse it.
>
> ICANN, as a private entity, has never been subject to the First Amendment,
> so nothing's changing in that regard.  Furthermore, it's inaccurate,
> misleading and unhelpful to refer to this as a privatization.  The
> "privatization" of the Internet, if such a thing can ever be said to have
> occurred, occurred decades ago.  The stewardship of the US government,
> while broader than the IANA Functions that are at the core of that
> stewardship, never extended in any way to applying First Amendment
> protections or prohibitions to ICANN's action, much less making ICANN an
> arm of the state.
>
> Also, nothing's changing with regard to ICANN's obligation to perform in
> the public interest.  ICANN's public interest obligations do make it
> different from private for-profit entities.  Adopting a Corporate Social
> Responsibility program and policy would not in any way diminish or replace
> ICANN's public interest obligations.  Rather, CSR policies would complement
> and act as a (non-exclusive) manifestation of ICANN's commitment to the
> public interest.  A CSR program is not a "simple corporate social
> strategy."  These can be fundamental changes in how a corporation operates
> and make decisions -- nothing simple about it.  And your reference to it as
> a "strategy" makes it sound quite sinister.  Strategy to do what?  If it's
> any kind of strategy, it's a strategy to improve and codify ICANN's
> socially responsible policies and actions.  Corporate Social Responsibility
> is a well-recognized and growing class of actions intended to improve the
> actions and policies of all types of entities -- the fact that it has
> "corporate" in the title doesn't make it dark and suspicious.
>
> If this group wants to devote itself to trying to define in detail what
> the "public interest" is for ICANN, that will pull us way off track.
> Although the principle is basic, the nuances once you try to parse it out
> will be anything but basic.  This can be a goal for ICANN in the long run,
> and as Samantha Eisner indicated, this is an effort that is underway.
> Rather than pulling that task into this group, it would make more sense for
> those interested in that effort to plug into that effort, and to consider
> appropriate linkages between that effort and this one.
>
> I do agree with one of your conclusions --  we should leave things as they
> are under California law.  Your other choice -- "talking about a move to a
> stronger (international) legal regime" -- is baffling in many ways.
> Stronger in what ways?  And how would that would be relevant to ICANN's
> commitment to the public interest?  What is an international regime?  All
> organizations other than IGO's are located in a nation.  And how would this
> effect every other ICANN issue?  And how would such a conversation serve
> the overall needs and demands of this group, in any kind of reasonable
> timeframe?
>
> I think you've tried to introduce a sense of vague unease into this
> dialogue, but there's really nothing to back it up.  That's unfortunate,
> since such vague misgivings tend to cloud rather than clarify, especially
> when they have no basis.  You are trying to make it seem like grand First
> Amendment protections are being traded for some narrow, cynical corporate
> strategy.  That's just not true.
>
> If you are not feeling well, it is probably due to a lack of information,
> or perhaps something you ate. I've tried to deal with the former.  Can't
> help you with the latter.
>
> And finally, I'm not sure what being on the GNSO Council has to do with
> this -- especially as the nonvoting NomCom representative who does not
> represent any stakeholder group or constituency.  Your contributions on the
> Council are much appreciated, but not relevant here, and it might give some
> people the impression you are speaking for for the GNSO Council, which is
> not the case.  I could put a title under my name, too, but since I'm not
> speaking for that organization, it would be inappropriate to do so.
>
> I hope we can keep these discussions focused on fruitful, substantive
> efforts.
>
> Best regards,
>
> Greg
>
> On Wed, Feb 18, 2015 at 6:48 PM, Carlos Raúl Gutiérrez <
> carlosraulg at gmail.com> wrote:
>
>> This is very curious indeed. I’m not a lawyer, but
>>
>> a) From the perspective of a US neighbour,
>> b) who grew up to believe that the constitutional basis for freedom of
>> speech, religion and assembly (1st amendment) was the highest legal level
>> of human rights possible, and
>> c) while we are talking about the transition of the stewardship from the
>> US Government over the Internet to the private sector,
>> d) to see such freedoms reduced to a simple corporate social strategy
>>
>>
>> *is quite a discomforting*.
>>
>> I don’t feel good at all, due to the lack of a definition or at least
>> joint framework of the public interest we expect from a “privatised”
>> Internet in this discussion. If we cannot agree on such a basic principle
>> that has been for a long time in the ICANN bylaws, we might as well a)
>> leave things the way they are under California Law or b) start talking
>> about a move to a stronger (international) legal regime.
>>
>> Carlos Raul Gutierrez
>> GNSO Council
>>
>>
>>
>> On Feb 18, 2015, at 1:35 PM, Greg Shatan <gregshatanipc at gmail.com> wrote:
>>
>> Camino,
>>
>> I think the suggestion of re-framing the Human Rights issue in a
>> Corporate Social Responsibility framework is an excellent and pragmatic
>> one.  This is much more "native" to a corporate entity like ICANN, and
>> there are a lot of well-developed materials, practices and policies for
>> CSR.  This makes CSR more "adoptable" in the short run than a human rights
>> platform.  HR may be broader than CSR, but we could see what issues remain
>> after a CSR framework for ICANN is identified.
>>
>> Greg
>>
>> On Wed, Feb 18, 2015 at 2:21 PM, <Camino.MANJON at ec.europa.eu> wrote:
>>
>>>  I am of the view that different members of the ICANN community
>>> understand quite differently the relationship "ICANN-HR-Public Interest".
>>>
>>> The fact that ICANN is more attentive to human rights considerations
>>> does not entail an extension of its corporate mandate, but a proper and
>>> timely assessment  of some of its activities and operations in light of the
>>> particular circumstances in which a given decision is made, a TLD is
>>> delegated, a Board resolution is passed, etc.. Some tend to see this more
>>> as a human rights impact assessment rather than an implementation of the
>>> human rights International instruments by the book.
>>>
>>> Human Rights as such are binding only for state actors, however that
>>> does not enter into conflict with the fact that a more attentive approach
>>> by ICANN towards human rights and "ethical business" could help the
>>> organisation develop a more accountable and transparent way of doing
>>> business.
>>>
>>> To complicate the landscape a bit further, one can factor in "public
>>> interest" considerations. I believe each nation, each jurisdiction, could
>>> come up with its own interpretation of what public interest means, but that
>>> must not enter into conflict with the fact that any definition of public
>>> interest could be perfectly enhanced by making reference to human rights
>>> international standards (something we all know about and for which one can
>>> easily find widely accepted references online/codified). Right now ICANNs
>>> notion of public interest is insufficiently clear to provide guidance to
>>> the policy development process and that does not play in favour of any
>>> stakeholder: it can be abused by parties wanting to place literally
>>> "everything" under the public interest, and it can be downplayed by parties
>>> only interested in the economic angle of the DNS.
>>>
>>> Accountability requires measurable standards; Human rights could serve
>>> to delineate the notion of public interest but since the concept of public
>>> interest is so much broader than that, that the conversation could last ad
>>> infinitum.
>>>
>>> In sum, while some parts of the community continue to discuss whether is
>>> adequate to include references to human rights in the Bylaws, or draw a
>>> link between human rights and public interest, which I find a valuable but
>>> lengthy discussion, there is some low hanging fruit in the ICANN strategy
>>> panel on Public Responsibility Framework which could easily be turned into
>>> a proper Corporate Social Responsibility strategy, based on measurable
>>> indicators. Google does it, Microsoft does it, Yahoo does it….
>>>
>>> My question is, why are we still focusing on HR and public interest
>>> rather than giving a different spin to this heading and renaming to "CSR"?
>>> Isn't' it easier to deal with CSR concepts and frameworks in a corporate
>>> environment like ICANN?
>>>
>>> Last not least, my purely personal view is that the fact that there is
>>> no GAC consensus in the realm of HR and ICANN is irrelevant for the
>>> community and for this group so as to continue discussions around proposals
>>> that touch upon ICANN and human rights. In fact, the discussions in this
>>> group could well enlighten or provide useful feedback to those discussions
>>> in the GAC or in the recently created CCWG-Human Rights in the future. I
>>> fail to see why the remit of one group one should prevent the work of the
>>> other, and vice versa.
>>>
>>>
>>>
>>> Best regards
>>>
>>>
>>>
>>> (Ms) Camino Manjon-Sierra
>>> European Commission - DG Communication Networks, Content and Technology
>>> Unit D1 - International relations
>>>
>>> Internet Governance
>>>
>>> Avenue de Beaulieu 25 (4/109) / B-1049 / Brussels / Belgium
>>> T: +32-2-29-78797 M: +32-488-203-447
>>>
>>> E: Camino.Manjon at ec.europa.eu
>>>
>>>
>>>
>>>
>>>
>>> *From:* accountability-cross-community-bounces at icann.org [mailto:
>>> accountability-cross-community-bounces at icann.org] *On Behalf Of *Greg
>>> Shatan
>>> *Sent:* Wednesday, February 18, 2015 8:05 PM
>>> *To:* Suzanne Radell
>>> *Cc:* accountability-cross-community at icann.org
>>>
>>> *Subject:* Re: [CCWG-ACCT] CCWG list summary, Jan 30 to Feb 5
>>>
>>>
>>>
>>> I am loathe to build a hard linkage between "public interest" and "human
>>> rights."  I don't think it will benefit consideration of either one.  Each
>>> of these issues raise complexities in the ICANN context.  There is no clear
>>> definition of "public interest" in the ICANN context.  There is also no
>>> clear definition of "human rights" in the ICANN context.  While human
>>> rights are critically important and no one (well, hardly anyone) is against
>>> human rights, ICANN is not a human rights organization per se.  Many of the
>>> things that ICANN does in the "public interest" have nothing to do with
>>> human rights (positively or negatively).  There may also be human rights
>>> issues that are not directly related to whether ICANN is acting in the
>>> "public interest."
>>>
>>>
>>>
>>> I would instead suggest that work related to ICANN and the "global
>>> public interest" and ICANN and its relationship to human rights should
>>> proceed separately.  There is room for significant debate on each of these
>>> topics, and tying them together will delay or sink both.  That does not
>>> mean bringing up "human rights" in the discussion of "global public
>>> interest" is taboo -- far from it.
>>>
>>>
>>>
>>> This group may find interesting the following excerpts from the Report
>>> of Public Comments on the ICANN Draft 5-Year Plan (available at
>>> https://www.icann.org/en/system/files/files/report-comments-draft-five-year-ops-06feb15-en.pdf
>>> )
>>>
>>>
>>>
>>> COMMENT: The entire objective is based on the concept of “public
>>> interest” which has a different meaning in different places (countries and
>>> contexts). Therefore, agreeing on a definition – that should include clear
>>> boundaries – of “public interest” should be at the core of the entire
>>> objective
>>>
>>> ANSWER:  Work was carried out by the Strategy Panel on the Public
>>> Responsibility Framework in consultation with the community through
>>> webinars and open sessions at ICANN meetings. We will build on this work
>>> moving forward and will work on agreeing on definition of “public interest”
>>> within the ICANN context with the community.
>>>
>>>
>>>
>>> COMMENT: S.G. 5.1 commits ICANN to act as a “steward of the public
>>> interest” as part of Strategic Objective 5: “Develop and Implement a Global
>>> Public Interest Framework Bounded By ICANN’s Mission”. The sole metric of
>>> S.G. 5.1 refers to a “common consensus based definition of public
>>> interest”. Does such a definition currently exist? If so, what is it? If
>>> not, how does ICANN propose to develop one?
>>>
>>> ANSWER: The definition was developed and proposed by the Strategy Panel
>>> on Public Responsibility framework. The Panel defined the global public
>>> interest of the Internet as ensuring that the Internet “becomes, and
>>> continues to be, healthy, open, and accessible across the globe”.
>>> Recognizing that this is a broad concept that permeates all of ICANN’s
>>> work, the Panel determined that for practical and operational reasons
>>> “public responsibility” work should be streamlined through one department
>>> tasked with serving the community, broadening it, and facilitating
>>> participation through specific and measurable tracks. Building on the work
>>> of the Panel and community requests, the DPRD [Development and Public
>>> Responsibility Department] is an operational department focused on public
>>> responsibility work centered on the priorities and focus areas identified
>>> through the regional engagement strategies and through community engagement
>>> with the Panel. The DPRD functions in collaboration with regional VPs,
>>> other ICANN departments, external organizations, and through engagement
>>> with Governments, ccTLD admins, and GAC members in developing and
>>> underdeveloped countries who serve as key entry points to these regions so
>>> that we can assist in strengthening IG structures leading to eventual
>>> handover to SO/ACs and the wider community.
>>>
>>>
>>>
>>> In other words, it appears that ICANN will be using as a definition of
>>> “global public interest” a standard developed by the Strategy Panel on
>>> Public Responsibility Framework,  one of several panels appointed in 2013
>>> by ICANN's leadership without community input and whose final report,
>>> issued about a year ago, seemingly sank without a trace (see
>>> https://www.icann.org/resources/pages/public-responsibility-2013-10-11-en
>>>  ).
>>>
>>>
>>>
>>> This raises an accountability issue in and of itself.....
>>>
>>>
>>>
>>> Greg
>>>
>>>
>>>
>>> On Wed, Feb 18, 2015 at 1:13 PM, Suzanne Radell <SRadell at ntia.doc.gov>
>>> wrote:
>>>
>>> Thanks all for this exchange, and to Olivier in particular for noting
>>> what seems to be a nascent community-wide initiative.  The GAC reached
>>> agreement in Singapore to establish a GAC working group on the subject, and
>>> has not yet arrived at a shared vision.  In the absence of broad,
>>> community-wide agreement as to the applicability of human rights
>>> obligations or the scope of ICANN's actual or potential responsibilities in
>>> this area, should the CCWG text contain specific references to human
>>> rights?    Cheers, Suz
>>>
>>>
>>>
>>> *Suzanne Murray Radell *
>>>
>>>
>>>
>>> * Senior Policy Advisor NTIA/Office of International Affairs PH:
>>> 202-482-3167 <202-482-3167> FX:  202-482-1865 <202-482-1865>*
>>>
>>>
>>>   ------------------------------
>>>
>>> *From:* accountability-cross-community-bounces at icann.org [
>>> accountability-cross-community-bounces at icann.org] On Behalf Of Olivier
>>> MJ Crepin-Leblond [ocl at gih.com]
>>> *Sent:* Wednesday, February 18, 2015 11:59 AM
>>> *To:* Avri Doria; accountability-cross-community at icann.org
>>> *Subject:* Re: [CCWG-ACCT] CCWG list summary, Jan 30 to Feb 5
>>>
>>> Dear Avri,
>>>
>>> I note that there is currently an initiative regarding human rights
>>> and/at ICANN and a session took place in Singapore, to discuss its next
>>> steps.
>>> http://singapore52.icann.org/en/schedule/wed-human-rights
>>> Kindest regards,
>>>
>>> Olivier
>>>
>>> On 18/02/2015 20:20, Avri Doria wrote:
>>>
>>>  Hi,
>>>
>>> Many of us argue that Human Rights is an essential component of any
>>> definition of Public Interest.  How can something be in the Public Interest
>>> if it contravenes human rights, especially those that are binding upon
>>> nations and obligatory for businesses, especially those which are defined
>>> as adhering to all applicable international law.
>>>
>>> However, we have seen that in arriving at expression of public interest,
>>> it is often necessary to balance those human rights, all of which stand
>>> equal as human rights, but that have different emphasis in different
>>> national regimes, even among those who justifiably can claim an adherence
>>> to human rights.
>>>
>>> As a organization, ICANN needs to adhere to human rights mandates and
>>> needs to do so in the public interest.  It is my understanding that our
>>> bottom-up processes are the means by which we determine our understanding
>>> of the public interest.  But in doing so, we must always be sure we do not
>>> infringe upon human rights.
>>>
>>> Just as there are many ways to achieve stability, security and
>>> resilience, and we determine that through our bottom-up processes, as
>>> modulated through the advice of our experts on security and stability in
>>> the SSAC and RSSAC, there are many ways to serve the public interest that
>>> need to be determined through adherence to bylaws manadated bottom-up
>>> processes and modulated through expert advice on human rights.
>>>
>>> So perhaps we should be considering "public interest consistent with
>>> human rights."
>>>
>>> avri
>>>
>>> I
>>>
>>> On 18-Feb-15 05:15, Kavouss Arasteh wrote:
>>>
>>>  Dear All,
>>>
>>> We should avoid to be engaged doing
>>>
>>>  something that we know would no tangible
>>>
>>>  results.
>>>
>>> I do not be infavour of replacing public interest
>>>
>>> With anything such as human rights and
>>>
>>> freedom Of expression, acknowledging
>>>
>>> That the latter two issues are very important
>>>
>>> But are quite difficult to limit public interests to
>>>
>>> These two issues
>>>
>>> Pls be prudent
>>>
>>> Kavouss
>>>
>>>
>>>
>>>
>>>
>>> Sent from my iPhone
>>>
>>>
>>> On 17 Feb 2015, at 22:43, Edward Morris <egmorris1 at toast.net> wrote:
>>>
>>>   I'm a bit confused Tijani.
>>>
>>>
>>>
>>> First, you said you didn't remember the suggestion and now you state the
>>> suggestion had no support. As I wasn't able to be in Frankfurt I would
>>> appreciate clarification of the status of this worthy idea. I'm personally
>>> not a big fan of the generic  term "public interest", finding that in
>>> practice "public interest" usually morphs into "personal interest": that
>>> is, "the public it is I". I realise that creation of a consensus definition
>>> of the public interest is called for in the draft 5 year OP but I do find
>>> Robin's idea to be worthy of discussion by the wider WG and thank staff for
>>> including it in the summary document.
>>>
>>>
>>>
>>> Best,
>>>
>>>
>>>
>>> Ed
>>>
>>> Sent from my iPad
>>>
>>>
>>> On Feb 17, 2015, at 7:09 PM, Tijani BEN JEMAA <
>>> tijani.benjemaa at fmai.org.tn> wrote:
>>>
>>>   Yes you did in Frankfurt, and there was no support to your suggestion.
>>>
>>>
>>>
>>> The “public interest” or the “benefit of the public, not just in the
>>> interests of a particular set of stakeholders” had a large support as part
>>> of the “CCWG Accountability – Problem definition” document (purposes of
>>> ICANN’s accountability, d.)
>>>
>>>
>>>
>>>
>>>
>>>
>>> --------------------------------------------------------------------------------
>>>
>>> *Tijani BEN JEMAA*
>>>
>>> Executive Director
>>>
>>> Mediterranean Federation of Internet Associations (*FMAI*)
>>>
>>> Phone:  + 216 41 649 605
>>>
>>> Mobile: + 216 98 330 114
>>>
>>> Fax:       + 216 70 853 376
>>>
>>>
>>> --------------------------------------------------------------------------------
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> *De :* Robin Gross [mailto:robin at ipjustice.org <robin at ipjustice.org>]
>>> *Envoyé :* mardi 17 février 2015 18:40
>>> *À :* Tijani BEN JEMAA
>>> *Cc :* 'Adam Peake'; 'Accountability Cross Community'
>>> *Objet :* Re: [CCWG-ACCT] CCWG list summary, Jan 30 to Feb 5
>>>
>>>
>>>
>>> Yes, I made this suggestion.
>>>
>>>
>>>
>>> Thanks,
>>>
>>> Robin
>>>
>>>
>>>
>>>
>>>
>>> On Feb 16, 2015, at 3:54 PM, Tijani BEN JEMAA wrote:
>>>
>>>
>>>
>>> Dear Adam,
>>>
>>>
>>>
>>> I may have missed some of the mails exchanged but I don’t remember that
>>> it was suggested that the public interest be replaced by human rights and
>>> internet freedom.
>>>
>>>
>>>
>>> Tijani
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> -----Message d'origine-----
>>> De : accountability-cross-community-bounces at icann.org [
>>> mailto:accountability-cross-community-bounces at icann.org
>>> <accountability-cross-community-bounces at icann.org>] De la part de Adam
>>> Peake
>>> Envoyé : lundi 16 février 2015 18:45
>>> À : Accountability Cross Community
>>> Objet : [CCWG-ACCT] CCWG list summary, Jan 30 to Feb 5
>>>
>>>
>>>
>>> Apologies for the delay sending this summary.  It was sent to the
>>> advisors last week.
>>>
>>>
>>>
>>> Best,
>>>
>>>
>>>
>>> Adam
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>   ------------------------------
>>>
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>>>
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>>>
>>>
>>>  --
>>>
>>> Olivier MJ Crépin-Leblond, PhD
>>>
>>> http://www.gih.com/ocl.html
>>>
>>>
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>>>
>>>
>>>
>>>
>>> --
>>>
>>> *Gregory S. Shatan **ï* *Abelman Frayne & Schwab*
>>>
>>> *Partner** | IP | Technology | Media | Internet*
>>>
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>>>
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>>>
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>>>
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>>>
>>
>>
>> --
>> *Gregory S. Shatan **ï* *Abelman Frayne & Schwab*
>> *Partner* *| IP | Technology | Media | Internet*
>> *666 Third Avenue | New York, NY 10017-5621*
>> *Direct*  212-885-9253 *| **Main* 212-949-9022
>> *Fax*  212-949-9190 *|* *Cell *917-816-6428
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>> *ICANN-related: gregshatanipc at gmail.com <gregshatanipc at gmail.com>*
>> *www.lawabel.com <http://www.lawabel.com/>*
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>>
>>
>
>
> --
> *Gregory S. Shatan **ï* *Abelman Frayne & Schwab*
> *Partner* *| IP | Technology | Media | Internet*
> *666 Third Avenue | New York, NY 10017-5621*
> *Direct*  212-885-9253 *| **Main* 212-949-9022
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-- 
------------------------------------------------------------------------

*Seun Ojedeji,Federal University Oye-Ekitiweb:      http://www.fuoye.edu.ng
<http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email:
<http://goog_1872880453>seun.ojedeji at fuoye.edu.ng
<seun.ojedeji at fuoye.edu.ng>*

The key to understanding is humility - my view !
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