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

Thu Jan 21 20:02:12 UTC 2016

I just want to point out that concern for Human Rights goes beyond the
enforcement issue.  In fact in my mind that has always been an ancillary
issue.

My prime concern with including respect for human rights was originaly,
and remains, is the possibility of including considerations of human
rights, including freedom of expression and for an open Internet, in
discussion of policy development.  At this point once the transition
occurs, assuming it does at some point, people will be able to claim
that as a private company human rights do not concern us. and therefore
are out of scope in policy development.  I think it important we avoid
that, and the by laws statement of respect for human rights is the stake
in the ground that allows human rights to remain relevant to ICANN.

It is this notion of support for human rights that I think we lose when
we put all of our concern on IRP and the courts. 

avri

On 21-Jan-16 13:28, Martin Boyle wrote:
>
> 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
>
>  
>
>  
>
>  
>
> *HOLLY J. GREGORY*
> 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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