[CCWG-ACCT] draft language for certification to lawyers on HR question

McAuley, David dmcauley at verisign.com
Wed Jan 6 16:15:22 UTC 2016

Hi Thomas,

Thank you for this opportunity to comment on the certification.

In yesterday’s call we had an example of an issue that would clearly benefit from legal advice – managing the risk of defamation-related litigation stemming from an effort to remove an individual board member (it seems the same risk would apply to an effort to recall the entire board as well). The issue was specific and involved the threat of a particular form of litigation which generally exists, with some variations, all across the world. 

In this human rights certification it seems we have an example of an issue for which legal advice might be premature. 

The certification seems very broad and could invoke a discussion about litigation in almost every country on the planet. It seems impractical to get legal advice that wide-ranging. 

Moreover, the board’s principal concern with the current proposal, at least as I read it, is that it may create an invitation for HR lawyers to use the language in an attempt to expand ICANN’s remit. This statement of the board’s concern strikes me as key: “While the language itself does not – in itself – create any additional obligation for ICANN, others could rely on the language to attempt to define new obligations that the community does not support.” The board then went on to point out some very plausible examples of their concern.

It raised reasonable points that need to be addressed but which seem unlikely to benefit from a general legal assessment at this moment.  Pending the development of an HR framework in WS2, it seems appropriate to ask for legal input simply aimed at minimizing unintended consequences of the present language until the HR work in WS2 is finished.

David McAuley

-----Original Message-----
From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Thomas Rickert
Sent: Wednesday, January 06, 2016 8:14 AM
To: Accountability Cross Community
Subject: [CCWG-ACCT] draft language for certification to lawyers on HR question

as discussed during yesterday’s CCWG call, please find below the draft certification language to be sent to the lawyers with respect to the human rights recommendation and the Board’s concerns about legal risks. I plan to certify at 14.00 UTC tomorrow.

The ICANN Board has raised concerns that the proposed inclusion of language in the bylaws with respect to human rights might lead to an increased risk of ICANN being exposed to legal claims or even law suits.

We would appreciate if you could provide us with a brief assessment and suggestions on how such risk can be mitigated. It is our understanding that human rights have been indirectly referred to in ICANN's bylaws already, so please also indicate whether (according to your assessment) the language that shall be added to the bylaws according to our 3rd report is establishing a new risk or an increased risk, if any.

Kind regards,
Thomas Rickert

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