[CCWG-ACCT] yet another human rights question

[Malcolm Hutty]

On 27/07/2015 08:44, Avri Doria wrote:
> Hi,
> 
> I am currently writing up my minority report and came to a question I
> could not answer.
> 
> Point 4 of the NTIA requirements includes:
> 
>   * Maintain the openness of the Internet.
> 
> This is a Human rights requirement that I do not see reflected in our
> stress tests.  Can someone point me at the stress test?  Openness of the
> Internet is a derivative or 'umbrella' right that is defined by
> reference to human rights such as freedom of expression, freedom of
> association, privacy, property, security &c and their interplay.
>
>
> We do not have, as far as I can tell, a stress test that covers this.

Actually, quite a number of the stress tests address this, maybe not as
a broad academic principle, but as a direct analysis of the concrete
things that ICANN might do to infringe on these rights.

But stress tests are just a tool for checking our work: first, let's
look at our work itself, to see what we have done to address the points
you raise.

The Mission Statement is clearly limited, and explicitly limits ICANN's
actions to things that can be justified as falling within the Mission
(which does include those things that are needed in order to carry out
the Mission effectively). Moreover, it explicitly states
"ICANN shall not engage in or use its powers to attempt the regulation
of services that use the Internet's unique identifiers, or the
content that they carry or provide."

That itself eliminates a huge chunk of potential rights violations of
the kind to which you were referring.

The Core Values include two relevant obligations, both of which we have
elevated to the status of a Commitment (and thereby said we do not
accept them being traded off against other objectives):
i) an obligation "to carry out its activities in conformity with
relevant principles of international law", which includes human rights
law; and
ii) to "Respect the creativity, innovation, and flow of information made
possible by the Internet by limiting ICANN's activities to matters that
are within ICANN’s Mission and require or significantly benefit from
global coordination"

Regarding the principle of an "Open Internet", this is also addressed
within the Mission Statement

"In this role, with respect to domain names, ICANN’s Mission is to
coordinate the development and implementation of policy policies:
- for which uniform or coordinated resolution is reasonably necessary to
facilitate the *openness*, *interoperability*, resilience, security
and/or stability of the DNS ;"

   [emphasis added].

I would argue that interoperability is a technical principle that
delivers, in concrete practical terms, the Openness to which you refer.

Interoperability prevents me from saying "if you want things to work,
you must do it my way and through me, and only those things that I
offer" and insteads ensures that you can do things yourself, your way,
and still have them interoperate with what others are doing themselves.

Interoperability is, in short, an objective technical test for Openness.


Turning now to the stress tests, as you asked:

* Stress Test 16 deals generally with ICANN acting outside the scope of
its limited technical mission.

* Stress Test 22 deals with a failure to honour the Bylaws more
generally. At the time it was written it was not duplicative of #16, but
thanks to our new language this assessment now includes testing whether
we are abiding by our limited Mission, and the Commitments and Core
Values. Importantly, it also asks whether there is an effective redress
mechanism in place should we violate it.

* Stress Test 23 examines a particular type of ultra-vires action, a
scenario that is particularly relevant to the rights issues you mention
(and may indeed be stetched to cover nearly all of what you mention).
I think one could argue that the test in #23 is coverd by the test in
#22; this is debatable. We chose to keep it as a separate item because
we recognised the importance of providing a clear focus on testing the
specifically for the impact on these issues.

Stress Test 24 considers ICANN's ability to re-define its own Mission,
and so is also relevant to the above as it checks whether we have
plugged this potential loophole.

>   * Without the NTIA as oversight, what is to stop us from infringing on
>     the human right of an Open Internet?

Good point. No matter what well-meaning and impressive sounding
commitments we make it would mean little if there were nothing to stop
us violating them anyway.

/Some/ of us have made it the focus of their engagement with CCWG to
address this problem and bring forward plans for a credible independent
mechanism to determine whether they have in fact been violated, and to
require ICANN to correct itself if they have.

As a result we now propose a greatly strengthened IRP to guarantee these
commitments and correct us if we violate them; and a Sole Member that is
empowered to require ICANN to use the IRP and to abide by its decisions.

It wasn't easy reaching agreement on this last point, and frankly your
intervention now would engender more sympathy if you hadn't personally
been amongst those who have consistently placed every obstacle and
objection in the path of that effort, but we do have it in our proposal now.

> We need, as part of WS1, a bylaw that covers this deficiency.

What we need is clear bylaws that convert this aspiration from vague
statements with contestable meaning and uncertain applicability into
clear and objectively understood principles of clear applicability,
together with a credible mechanism for ensuring that they are honoured.

I believe we now have that, and that introducing broad language that
refers to human rights in their utmost generality will add nothing, and
is likely to detract, from the measures we have put in place to ensure
that they are honoured.

That said, if you can identify specific rights with specific
applicability within the Mission that we have overlooked, I am
personally still willing to be persuaded that there's a gap we need to
fill, even at this late stage. Unfortunately, because you spent so much
of your own effort for so long trying to block the measures we designed
to provide effective redress for the violation of the rights we do
understand to be engaged in ICANN's activities, you either haven't given
us - or have greatly distracted from - the benefit of your undoubted
expertise in identifying any gaps we may have left.

> I understand that for some I went too far in suggesting a remedy for how
> we might do that, within the bylaw I orinigally suggested and want to
> try another suggestion before I go back to writing my minority report.
> 
> /In order to enure that openness of the Internet within ICANN's mission
> may be maintained,  human rights impact assessments will be done/ /on
> ICANN policies [as appropriate]/.

Personally, I have no objection to this, but it seems to me to be an
almost archetypal WS2 item: a process-oriented approach to implementing
principles already established in WS1 (you may be arguing now that this
is not so, but not only do I disagree, I confidently predict you will
reverse yourself when the opportunity to amend WS1 has passed), that has
little prospect of being resisted by ICANN or by anyone within the
community.

> Thanks and apologies for bringing it up again, but on realizing that we
> do not stress test against the requirements for maintaining the human
> right of openness of the Internet made me realize that the deficiency
> was larger than just one of ignoring comments on our draft.

For the reasons above, I don't agree with this assessment.

Malcolm.

-- 
            Malcolm Hutty | tel: +44 20 7645 3523
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