[CCWG-ACCT] Report on Lawyers Call re Human Rights

Martin Boyle Martin.Boyle at nominet.uk
Thu Jan 21 18:28:25 UTC 2016

Thanks David:  you put into words a number of things that have been seriously worrying me:  very helpful!

From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of McAuley, David
Sent: 21 January 2016 17:31
To: Gregory, Holly <holly.gregory at sidley.com>; 'Mathieu Weill' <mathieu.weill at afnic.fr>; 'thomas at rickert.net' <thomas at rickert.net>; 'León Felipe Sánchez Ambía' <leonfelipe at sanchez.mx>; 'accountability-cross-community at icann.org' <accountability-cross-community at icann.org>; 'acct-staff at icann.org' <acct-staff at icann.org>
Cc: Sidley ICANN CCWG <sidleyicannccwg at sidley.com>; Greeley, Amy E. <AGreeley at sidley.com>; Grapsas, Rebecca <rebecca.grapsas at sidley.com>; 'ICANN at adlercolvin.com' <ICANN at adlercolvin.com>; (john.jeffrey at icann.org) <john.jeffrey at icann.org>
Subject: Re: [CCWG-ACCT] Report on Lawyers Call re Human Rights

Thank you Holly.

One concern I have with the suggested red language is that it presupposes that the FOI will allow for HR claims to be brought before IRP. That appears logical because if we have an HR commitment in bylaws then presumably an HR violation by ICANN would violate that bylaw.

But in my personal opinion it seems possible that an FOI could conclude that HR violations are proper matters for courts alone to decide, especially given the bylaw language regarding “applicable law” (in my view an essential part of this bylaw).

There are avenues open today to remedy HR violations in the courts. One HR, for example under UDHR, is the right to freedom from arbitrary interference with one’s privacy.  There are plenty of privacy laws around the world and courts are experienced in applying them. So, for example, if someone wants to claim that WHOIS violates his or her privacy the door is open to make the claim in court, either where they live or where ICANN operates.

Do we want an IRP panel to be developing HR law as a separate body of law? It doesn’t make sense to me - we will be standing up an IRP panel focused on DNS, not on HR.

So I see possible merit in the Board’s concerns as summarized by you as potentially creating:

“a slew of IRP challenges that have little actual merit from a legal perspective, placing the IRP panel (which may be comprised of persons without significant human rights law understanding) in a position of arbitrating a wide range of issues that may be driven by divergent  interests that have little relevance to ICANN.”

In my opinion, we should at least allow WS2 to consider these concerns fully, without appearing to lock in the result that IRP will hear these matters.

Thank you

David McAuley

From: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Gregory, Holly
Sent: Wednesday, January 20, 2016 9:41 PM
To: 'Mathieu Weill'; 'thomas at rickert.net'; 'León Felipe Sánchez Ambía'; 'accountability-cross-community at icann.org'; 'acct-staff at icann.org'
Cc: 'ICANN at adlercolvin.com'; (john.jeffrey at icann.org<mailto:john.jeffrey at icann.org>); Sidley ICANN CCWG; Greeley, Amy E.; Grapsas, Rebecca
Subject: [CCWG-ACCT] Report on Lawyers Call re Human Rights

Dear CCWG-ACCT Co-Chairs, Members, Participants and ICANN Staff,

We had a good discussion  with ICANN lawyers (Sam and John) and with Kevin Espinola of Jones Day today as was certified to us regarding the Board’s understanding of the Human Rights language that we had proposed (set forth below).     As we now understand the Board’s concern, while the language we proposed would not create any additional responsibilities beyond what currently exists in applicable law, providing a Human Rights commitment  in the Bylaws  opens the range of human rights topics to IRP challenge where Board action or inaction is perceived by someone to be out of line with human rights obligations under applicable law.   Without benefit of the further definition around the scope of ICANN’s human rights obligations (the Framework for Interpretation) planned for Work Stream 2, in the interim there could be a slew of IRP challenges that have little actual merit from a legal perspective, placing the IRP panel (which may be comprised of persons without significant human rights law understanding) in a position of arbitrating a wide range of issues that may be driven by divergent  interests that have little relevance to ICANN.  This could result in a significant use of ICANN time and attention and scarce IRP resources with little actual added value in holding ICANN accountable.
This is a legitimate concern.   One solution that is in line with the discussion around options from the last CCWG call is to assure that the IRP process is not available until the Work Stream 2 effort to further articulate the human rights Framework for Interpretation is finished.

The CCWG may wish to consider including in the Bylaws something along the following lines (the language in red is new; the language in black is essentially what we had proposed originally) :

Within its Mission and in its operations, ICANN will respect internationally recognized Human Rights. This commitment shall  not in any way create an obligation for ICANN, or any entity having a relationship with ICANN, to protect or enforce Human Rights beyond what may be required by applicable law. In particular, this does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision is not a valid basis for, and shall not give rise to, any IRP process until a Framework of Interpretation is developed as part of “Work Stream 2” by the CCWG-Accountability or another Cross Community Working Group chartered for such purpose by one or more Supporting Organizations or Advisory Committees. ICANN shall  support the establishment and work of such a Group to facilitate development of the Framework of Interpretation as promptly as possible.

Note that if the CCWG decides to move in this direction, Annex 12 (Work Stream 2) should include a reference to the commitment in the last sentence.

Kind regards,

Holly and Rosemary

Partner and Co-Chair
Global Corporate Governance & Executive Compensation Practice
Sidley Austin LLP
+1 212 839 5853
holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>

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