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

[Avri Doria]

On 21-Jan-16 18:11, Andrew Sullivan wrote:
> Why isn't it better that the human rights
> considerations be part of the constraint on some or all of the various
> constituency groups, rather than part of the ICANN bylaws?  (In case
> it's not clear, I don't intend that as a rhetorical question.)

Good thing you included a note about this not being a rhetorical claim
against Human Rights commitment at ICANN, but a question.  I would have
reacted to it as  rhetoric and moved on. So thanks

In one sense you may have a point, why do we need any core value and
commitments in the ByLaws.  For example why do we need core values
dealing with market mechanisms and a competitive environment? Shouldn't
the stakeholders be able to bring that concern as part of the regular
tussle?  Why do we need any bylaws beyond the purely administrative?  
All of the core value fluff could be left subject to the tussle of
participants.  Yet we seem to have a continuing sense that reflecting
core values and commitments in the bylaws in important.  So why is a
commitment to rights such a hard commitment for ICANN to make?  I do not
accept that it just a fear of litigation tht has been shown to be
unfounded.  I do not presume to understand this ICANN aversion to
freedom of speech and an open Internet with free flow of information, I
can just be sure that nobody fights such a simple statement without some
intent.

NTIA requires that we show how we are going to maintain the openness of
the Internet including the freedom of expression and the free flow of
information.  Without the Human Rights commitment we have nothing that
show that.  We do not have a core value related to the open Internet,
freedom of expression and the free flow of information, nor a higher
level commitment that would include these concerns.   Today that
commitment is met by having a  public review by the NTIA every few years
to ascertain whether ICANN is keeping a commitment to freedom of
speech/expression, and can remove the contract to another IANA Function
Operator if we fail to do that or to live up to any of our other
obligations.  As a contractor to the government, ICANN is subject to the
government's fulfilling its obligation for human rights, and if we fail
we lose the contract.  After transition there is no such obligation or
check and blances, neither in law nor in our current bylaws.  Therefore,
the need for a commitment.

Some argue that we do not need a bylaw for a commitment.  I beg to
disagree.  Without a bylaw or a contract, ICANN  is not bound to any
commitment.  history shows us that.  They are just words that can be
ignored and postponed for as long as the corporation and its Board wish.
If we allow IANA to transition away from the US government without a
commitment to Human Rights, especially freedom of expression and the
free flow of information we are just as likely to forget about such
values in the hurly-burly of day to day business wheeling and dealing.

We can argue on whether NTIA and Congress could accept a transition that
does not guarantee freedom of speech/expression or the maintenance of a
open Internet or the free flow of information.  Perhaps we should test
with congress about how they would feel if we were to try and escape
that commitment by refusing to put such the commitment to repsect human
rights into the bylaws.   Personally I do not believe Congress will
accept anything that abandons the value of an open Internet, freedom of
speech/expression and the free flow of information.  As a citizen,  I
would certainly ask my congressional representatives to thwart such a
move. As a citizen I would prefer we continue to work past this election
until we can guarantee basic respect for human rights over abandoning
the commitment we currently have by virtue of the contract.  It is
better to continue being subject to a government contract that can be
removed if we start to infringe these rights. I personally trust NTIA
more than I trust ICANN without a commitment to human rights. If we need
a FOI in order to understand what it means to respect human rights when
making policy then we had better get that done before we try to move
on.  I do not think the FOI is necessary, but if others do, then we
better start working on it.

So no, it is not better to leave human rights up to the overwhelming
press of financial interests that rule ICANN without any method of
redress.  And without a bylaw, there will be no discussion of human
rights impact on the work we do.  It would be out of scope.

avri







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