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

[McAuley, David]

Hi Avri,

While appreciating your typically well-considered point of view, I disagree with part of what you said.

I personally think the concern expressed by the board over HR is well-founded and so take respectful issue with some of those comment below.

You said:

"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."

Two concerns: First, ICANN hasn't been averse to an open Internet with free-flowing information insofar as I have seen. And we have no reason to fear that, IMO. In fact CCWG intends to clarify this as stated in the third draft proposal at paragraph 214 (in a Fundamental Bylaw, no less):

"Clarify that ICANN's Mission is limited to coordinating the development and implementation of policies that are designed to ensure the stable and secure operation of the Domain Name System and are reasonably necessary to facilitate its openness, interoperability, resilience, and/or stability."   

An open Internet is open to free expression - and that is ICANN's role.

Second, as to ". nobody fights such a simple statement ." 

Freedom of speech is a simple statement but not a simple concept. As just one example, over the past few days I have been reading a debate on the IRTF list about whether or not a DDoS attack might in some circumstances be an expression of free speech. It seems absurd and the debate seems largely settling on that conclusion but debate is nonetheless made - how could we even risk such an argument to come before IRP? 

That's why some of us want "applicable law" to be explicit as it invokes a body of law developed by courts and countries (not just in US) who are better equipped to grapple with these concepts. I think we can all envision the classic argument over where one's right of free expression ends vis-à-vis someone else's right to privacy - it could get complicated. Why should we risk embroiling ICANN in these disputes in an IRP - the panel is not designed for that, IMO, not to mention that absent a statement about "applicable law" we would be asking IRP panelists to develop new law, as they deem fit, applicable only to ICANN. 

You also said:

"And without a bylaw, there will be no discussion of human rights impact on the work we do.  It would be out of scope."

I just don't see it - there will be a fundamental bylaw as noted above and we will get to an HR FOI in WS2. 

David McAuley

-----Original Message-----
From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Avri Doria
Sent: Friday, January 22, 2016 9:29 AM
To: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Report on Lawyers Call re Human Rights



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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