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

Niels ten Oever lists at nielstenoever.net
Tue Jan 19 09:14:15 UTC 2016

Dear Board,

I fully understand that individual board members do not speak on behalf
of the full board in the CCWG but on their own behalf, but it greatly
surprises me that when we reach agreement or even consensus in the CCWG
respectively WP4 with individual board members, that the board comments
or emails simply disregard every conversation that has been had. This
way one can simply not have a serious conversation or negotiation.

We had good discussions on this list with Markus and Bruce, but the
email of the board repeats the same arguments as given in the comments,
so it seems that all discussion with the board is pointless and the
board simply wants to push its points, but even worse, is not willing to
have a discussion based on facts, laws and examples. This is greatly
worrying me.

On the list there was a range of discussions concerning option A and
option C, I think we should continue down the road of informed and
constructive discussion instead of repeating the same arguments (which
have already been addressed in bylaw language or by lawyers) which are
not helping us reach consensus, quite the opposite.

Constructively yours,


On 01/19/2016 03:15 AM, Theresa Swinehart wrote:
> /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 ICANN’s 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 community’s 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 “applicable law” 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 “any entity having a relationship with ICANN “
>     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 ICANN’s Mission.
>     Without a framework, challenges could be raised around issues that
>     are not agreed to be within ICANN’s 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 ICANN’s 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 ICANN’s
> accountability. The Board urges that the full scope of defined work on
> human rights should include consideration of impacts across all of
> ICANN’s activities./
> / /
> As noted by ICANN’s 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 ICANN’s 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
> ICANN’s 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 ICANN’s Documentary Information Disclosure
>     Policy (DIDP). If a DIDP response is in violation of ICANN’s
>     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.
>  2. 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 ICANN’s obligations with PTI’s
>     obligations.
>  3. The Board also supports the request from the IAB that the protocol
>     parameters are excluded from the IRP.
>  4. 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).
>  5. The Board discourages the use of exemptions to the already limited
>     world of “loser pays” 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 Board’s 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.
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community

Niels ten Oever
Head of Digital

Article 19

PGP fingerprint    8D9F C567 BEE4 A431 56C4
                   678B 08B5 A0F2 636D 68E9

More information about the Accountability-Cross-Community mailing list