[CCWG-ACCT] Board remarks on Human Rights, IRP and Community IRP

Tue Jan 19 02:15:01 UTC 2016

Dear CCWG, 

Please find below the Board's remarks for the discussions on the next CCWG
call, which I'm sending on behalf of Bruce and Markus.

Kind regards, 

Theresa 

____

The Board appreciates the work by the community on the first readings of
reactions to the public comment on the Third Draft Proposal from the
CCWG-Accountability.  In preparation for the second reading, the Board
provides these inputs to the CCWG-Accountability on inclusion of Human
Rights in the Bylaws, Scope of IRP and Scope of Community IRP

On Inclusion of Human Rights in the Bylaws, the Board has the following
reactions to the points identified in the redline distributed after the
first reading before the CCWG.

The Board notes the continued discussion of this issue on the
CCWG-Accountability list, and that there continues to be some divergence
among the CCWG-Accountability on how to proceed among the options presented.
As noted in its comments to the Third Draft Report, the Board remains
committed to developing a Human Rights Statement for ICANN, and will report
to the community at ICANN 55 Marrakech on progress on this work.  The Board
appreciates the import of this issue to the ICANN community, and remains
committed to working alongside the community towards a meaningful framework
to guide human rights considerations within ICANN¹s mission.

Regarding inclusion in the ICANN Bylaws, the Board supports Option B, or
allowing the WS2 effort on defining a framework to proceed prior to
considering whether to include a human rights obligation in the Bylaws.

The Board appreciates the consideration the CCWG-Accountability has given to
the timing concerns raised by the Board in its comments.  Of note, the
Board¹s concerns in introducing a human rights consideration in its Bylaws
today prior to the completion of a framework was not the only concern
raised.  The language presented by the CCWG-Accountability for the Bylaws
also raised concerns.  As stated in the Board¹s comments:

While the Board appreciates that the proposed interim Bylaw text is intended
to not place any additional obligations on ICANN, the language could
actually be used to greatly expand ICANN¹s human rights obligations. Some
specific examples of concern include:
* Inclusion of a human rights commitment in the Bylaws would immediately
allow for IRPs to be brought on human rights grounds. Similarly, there could
be lawsuits relying on the Bylaws language filed against ICANN. When the
Bylaws commitment is vaguely stated, any interpretation of the Bylaws
language will be against ICANN, and have binding impact on the community¹s
ability to define a framework. Neither the IRP or the Courts will have any
legal reason to wait for the community to complete the next step, and could
make their own interpretations of the language.
* The proposed Bylaws text, with reference to ³applicable law² to judge the
acts of ICANN and those with relationships with ICANN, leaves open the
question of which law should be applicable. This language expands, as
opposed to limits, the potential scope of human rights challenges.
* The language about ³any entity having a relationship with ICANN ³ raises
the suggestion that the ICANN Bylaws have the power to bind those with
relationships with ICANN in how those entities respect, consider or enforce
human rights.  ICANN does not have this power. For example, registries and
registrars contracted with ICANN do not take on any human rights obligations
because they contract with ICANN. This language suggests that because they
have a relationship with ICANN, there are human rights concerns that they
could be obligated to address.
* The language suggests that there is already a framework within which ICANN
processes complaints, requests or demands for ICANN to enforce human rights
issues, which there is not. Indeed, there still appears to be divergence
within the community about what should be considered as human rights
considerations within ICANN¹s Mission. Without a framework, challenges could
be raised around issues that are not agreed to be within ICANN¹s Mission,
such as access, content or education.

Leaving these types of issues open puts the community, ICANN stakeholders
such as contracted parties, and ICANN itself at risk.  Courts or binding IRP
panels could be used to create precedent defining what human rights are
within ICANN¹s Mission. These determinations are better left for the ICANN
community to sort out, instead of being imposed. Leaving these questions
open for others outside of the ICANN community to define is not consistent
with enhancing ICANN¹s accountability. The Board urges that the full scope
of defined work on human rights should include consideration of impacts
across all of ICANN¹s activities.

As noted by ICANN¹s legal counsel, the concern raised by the Board is not
primarily about an increase in the potential litigation across ICANN, but
rather about the impact of that litigation on the ICANN community, in the
potential to define ICANN¹s human rights obligations before the community
has the opportunity to complete that work.  The proposed limitation of
applicable laws does not provide much comfort, as there are no limitations
of which laws will be suggested to be applicable to which parties.  This is
not a trivial concern.  Which court and which law will be relied upon to
decide if human rights includes a requirement to make all registrant data
public in an attempt to protect against abusive content on websites?  Or
which court and which law will be relied upon to require all registrant data
to be made private to recognize privacy interests or the potential impact to
third parties with which ICANN does business? It is examples such as these
that demonstrate why the ICANN community needs to weigh in on where ICANN¹s
human rights obligations start and stop, before a court is invited to make
those determinations.

Recommendation 7, Scope of IRP:

The Board previously expressed concerns about the IRP being used for
substantive appeals from process-specific expert panels, and notes the
apparent agreement on the CCWG-Accountability to remove the expert appeals
language from the scope of the IRP.  Even with this removal, the Board notes
that any violation of the ICANN Articles of Incorporation or Bylaws that
occurs in conjunction with the consideration of an expert panel can
appropriately be the basis of an IRP. The Board has the following additional
comments:

1. The IRP should not be used to determine what documents are to be released
as part of ICANN¹s Documentary Information Disclosure Policy (DIDP). If a
DIDP response is in violation of ICANN¹s Bylaws/AoI, then an IRP can lie on
the grounds of a Bylaws/AoI violation.  The Board notes that a more
substantive appeal process for the DIDP could be developed as part of the
DIDP review in WS2.  The development of a substantive DIDP appeal process
was not previously identified as a WS1 effort.

1. The Board supports the CWG-Stewardship contingency that the IRP is made
available as part of the accountability for the performance of the naming
function work by PTI. The implementation of this must be done carefully so
as to not confuse ICANN¹s obligations with PTI¹s obligations.

1. The Board also supports the request from the IAB that the protocol
parameters are excluded from the IRP.

1. The Board notes that there should be a broad range of participants for
the work of the IRP implementation team (including jurists and those versed
in international arbitration).

1. The Board discourages the use of exemptions to the already limited world
of ³loser pays² outcomes of IRPs, such as a proposed exemption for
non-profit entities, as there should not be incentive for a certain group of
complainants to more easily bring IRPs if they are not faced with the
potential recourse for bringing IRPs on suspect grounds.

Recommendation 4, Scope of Community IRP:

The Board reiterates its concerns regarding the inclusion of expert panel
appeals and substantive DIDP appeals, as stated in regards to Recommendation
7. 

The Board appreciates the community discussion regarding a carve-out of the
Community IRP as it relates to PDP outcomes.  The Board notes that,
particularly with a threshold of 3 SOs or ACs, there other potential for the
filing of a Community IRP to pit parts of the community against other parts
of the community, such as countering the Board¹s acceptance of advice from
Advisory Committees.  The Board encourages the CCWG-Accountability to see if
there are additional protections that can be introduced so that community
resources are not used to challenge properly taken actions from another part
of the community.

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