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

Seun Ojedeji seun.ojedeji at gmail.com
Wed Jan 20 11:19:12 UTC 2016

Dear Theresa/Bruce/Board/all,

I note that this comment from board does not seem to address the question
asked by one of the Co-Chairs (Leon), it will be good to know specifically
if option C meets/addresses the concerns of the board and why not if it
doesn't. Literately looking at option C, and apart from the fact that I
don't know the legal implication of a dormant/broken bylaw text (which
would have been a bug in the technical world) i think it does address
board's concern (some of which i share and raised within WP4 as well).

« option c » is the following :
“Adopt adjusted bylaw language as part of WS1 to clarify that it can only
be enforced or used in an IRP once the FoI is approved (Such as : “This
articles becomes effective 30 days after approval of the FoI…”).”


On Tue, Jan 19, 2016 at 3:15 AM, Theresa Swinehart <
theresa.swinehart at icann.org> wrote:

> 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 ICANN’s
> 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
> Board’s 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 Board’s 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 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.
>    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 ICANN’s obligations with PTI’s 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 “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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*Seun Ojedeji,Federal University Oye-Ekitiweb:      http://www.fuoye.edu.ng
<http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email:
<http://goog_1872880453>seun.ojedeji at fuoye.edu.ng
<seun.ojedeji at fuoye.edu.ng>*

Bringing another down does not take you up - think about your action!
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