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

Dr. Tatiana Tropina t.tropina at mpicc.de
Tue Jan 19 09:40:09 UTC 2016

Dear all,

I agree with Niels that it is surprising and frustrating that in the
middle of what might be considered as a constructive dialogue the board
repeats the same arguments against the inclusion of human rights into
the bylaw language as it proposed in the Third Draft Report.

I am confident that all the board concerns, one by one can be addressed
by the adoption of the option C (as also recognized by Bruce), because
the bylaw language will not be operational until the framework of
interpretation is adopted, so there can be no IRP or no court
litigation. I do not understand why the board is disregarding all the
work and discussions that took place at CCWG and WP4 and insisting that
we have to go back to the square one in WS2 and discuss even the need
for the bylaw there. Is the conclusion of the WP4 and CCWG that we need
a bylaw is not enough for the board? Why are community’s conclusions and
discussions being disregarded?

Another concern of mine is the way forward suggested by the board – both
in the comments to the draft proposal and in the recent email. So the
board is suggesting to do some work like hiring an expert and report to
the community in Marrakech? I am happy that the board wants to get
engaged into the HR discussions and efforts, but I think this shall be a
parallel process. If this efforts are suggested as an alternative way, I
would consider them as non-inclusive (the board is taking over the
process and reporting to the community) and top-down.

Inclusion of human rights shall be a community exercise. As a step one,
the community has come to a decision to include the human rights
language into the bylaw. If we accept the option C, all the concerns of
the board are addressed, because bylaw language will be dormant till the
framework is developed. Sending the whole process back to WS2 is
disregarding all the work has been done and a lack of respect to the
ability of CCWG to come to conclusions.
I hope the email of the board doesn’t mean the end of the dialogue. I
again would like to bring everyone’s attention to the option C, which is
a great compromise between our initial ideas and board’s suggestions,
and which addresses all the board’s concerns.

As a side note: the language referring to the “applicable laws” was
inserted by lawyers on a later stage. As a lawyer myself, I interpreted
this language as a clause that if there is applicable law (like for
example engagement in slavery is a criminal offence), ICANN can’t get
away with being responsible for this even if we have a “no
responsibility clause” in the bylaw. I believe that if there is an
applicable law, it will be applicable with or without the bylaw. Just my
opinion. All in all, I don’t mind if this “applicable law” clause will
be excluded from the bylaw language if it causes such a great discomfort.

Best regards

On 19/01/16 10:14, Niels ten Oever wrote:
> 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,
> Niels
> On 01/19/2016 03:15 AM, Theresa Swinehart wrote:
> <<snipp>
>> /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.
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