[CCWG-ACCT] Board remarks on Human Rights, IRP and Community IRP
Dr. Tatiana Tropina
t.tropina at mpicc.de
Tue Jan 19 10:01:25 UTC 2016
Dear Kavouss,
just briefly: I think we *are* willing to take into account the board's
"concerns". That's what option C is actually meant for. Adopting a
dormant bylaw wasn't out initial idea, but we are trying our best to
find a compromise and to address board's concerns. All of the board's
comments are addressed if this option is adopted.
Or is "addressing the concerns" means just agreeing with the comments,
disregarding the work we've done and moving everything to the WS2?
I think we all have to be willing to find a compromise, as it was done
in other areas.
Concerning the past discussions: the board members were taking part in
the WP4. The concerns were different, as far as I remember.
Best regards
Tatiana
On 19/01/16 10:40, Kavouss Arasteh wrote:
>
>
> Dear All,
>
> I fully understand the concerns raised by some of our CCWG colleagues
> in regard with the Board's recent comments on three Recs. However, at
> WP4, I remember that, Board's members expressed more or less the same
> concerned but those concerns were not taken into account when the WP4
> prepared its output.
>
> That output was discussed at CCWG and there was no reaction from the
> CCWG members on the initial Board's comments.
>
> The Board has then raised their points when commenting on CCWG 3rd
> proposal and now reiterating more or less the same concerns
>
> I am of the opinion that we need to carefully examine these comments,
> if some or all are convening we should take them into account. Those
> areas that we are not convinced, we need to enter into discussion with
> the Board's representative with a view to find an acceptable solution.
>
> Should we ignore their comments, they would submit these comments to
> NTIA together with CCWG Final proposal
>
> Another important point is that the Board is the entity that a) will
> have to implement these provisions. Should they identify any
> difficulties to implement them ,we need to examine their difficulties
> to minimize them that the provisions in question could be implementable.
>
>
>
> The other issue is should some of our output create legal difficulties
> for the Board such as involve them in obligations vis a vis other
> entities with which they contract certain action and the scope of
> implementation of those actions by the contracting parties is beyond
> the control of the Board, then what we expect from the Board to do.
>
> CCWG draft many provision purely on theoretical ground and may not
> have examined the intended or unintended consequences of these
> provisions thus the Board is legitimately allowed to comment on these
> provisions from practical implementation view points
>
> Best Regards
>
> Kavouss
>
>
> 2016-01-19 10:14 GMT+01:00 Niels ten Oever <lists at nielstenoever.net
> <mailto:lists at nielstenoever.net>>:
>
> 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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> > Accountability-Cross-Community at icann.org
> <mailto:Accountability-Cross-Community at icann.org>
> > https://mm.icann.org/mailman/listinfo/accountability-cross-community
> >
>
> --
> Niels ten Oever
> Head of Digital
>
> Article 19
> www.article19.org <http://www.article19.org>
>
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