[CCWG-ACCT] Notes, recordings and transcript for WS2 Human Rights Subgroup Meeting # 9 | 11 October

[MSSI Secretariat]

Hello all,

The notes, recordings and transcripts for CCWG Accountability WS2 Human Rights Subgroup Meeting #9 – 11 October 2016 will be available here:  https://community.icann.org/x/cwi4Aw

A copy of the action items and notes may be found below.

Thank you.

With kind regards,
Brenda Brewer
MSSI Projects & Operations Assistant
ICANN - Internet Corporation for Assigned Names and Numbers

Action Items:

·         Staff to contact ICANN legal regarding their interpretation of applicable law and their comments on the sub-group’s proposed definition.

·         Staff to post transcript of last call of sub-group as soon as possible.
Notes
Notes (including relevant parts of chat):
1. Administrivia, Roll call, absentees, SoIs, etc
2. Discussion on Working Methods

·         Niels ten Oever: Google Document is messy but is a testament to the work going on.

·         Tatiana Tropina: Leave the Google doc as a main drafting tool and then hold a Skype (or other) call and take notes and then go back to the document.

·         Greg Shatan: Google doc is being stretched but still think it is a good tool for us. Maybe just need to manage our inputs better using the various functions available. Everyone should work in Suggestion mode.

·         Tatiana Tropina: Wiki no please not for this task.

·         Rudi Daniel: yes,  so far Google docs works as well as a tool.

·         Tijamni Ben Jemaa: Google docs is not usable everywhere in the world. Experience using the Wiki was better (audio cutting out).

·         Tatiana Tropina: (sorry for being so direct, I just can't use wiki for this type of drafting).

·         Niels ten Oever: Have checked with ICANN staff and there are currently no additional tools available for this in the Wiki at this time.

·         Kavous Arasteh: Not in support of Google docs. Difficult to use. Many of the comments in the Google doc are not useful.

·         Stefania Milan: It seems to me that Greg's proposal to accept minor editorial changes, and especially to create historical versions, is very logical and easy to implement

·         Cheryl Langdon-Orr (CLO): I support the wiki as archive and connections to various more collaborative tools though

·         Avri Doria: any confusion in the drive doc is due to confusion in the group, not a tool problem. yes, wiki is good storage and archival tool.
3. Analysis and discussion of proposed definition of applicable law

·         David McAuley: I have provided my input on Applicable Law and then have provided a boiled down version. Applicable Law is discernable if there is a question on the floor but not if there is not.

·         Matthew Shears: David - your suggestions were very helpful

·         Nigel Roberts: I disagree with that definition. The term would be construed strictly by any court interpreting the by law.

·         Kavous Arasteh: Recommend people should comment on the written document in writing on the list.

·         Nigel Roberts: Human rights law only applies to public actors UNLESS we voluntarily adopt particular instruments.

·         Tatiana Tropina: Nigel it can be also some other laws, not only HR + HR is for the states, but it gets translated to the laws and regulations, I can come up with many examples how it is translated in the national law and binds any actors.

·         Nigel Roberts: There is no applicable HR law to ICANN unless we voluntary adopt parts of things like Ruggie.

·         Rudi Daniel: This definition makes more sense IMO.....Applicable law is a specific concept of private international law and refers to the national law that governs a given question of law in an international context. A court hearing an action does not necessarily apply its national law to settle the dispute.

·         Greg Shatan: There are laws that apply to entities and individuals via the state wrt HR.

·         Nigel Roberts: Human rights law only applies to public actors UNLESS we voluntarily adopt particular instruments.

·         Tatiana Tropina: There is no applicable HR law, but there many laws that contain the elements related to HR. Criminal prohibition on slavery is one of the obvious examples.

·         David McAuley (RySG): I stand by my thoughts in my longer and shorter emails - I also think HR principles work their way into laws that apply to ICANN and I think the twice reference in the bylaw makes this important.

·         Nigel Roberts: What applicable law applies to ICANN in the matter of free expression? The First Amendment doesn't

·         Matthew shears: + 1 Tatiana, Greg and David

·         Tatiana Tropina: Nigel, you want ICANN to create this law on it's own? Or create its own rules on FOE that it will be enforcing? It directly contradicts the bylaw

·         Niels ten Oever 2: @greg - that seems out of scope, or at least outside of our capacity.

·         Jorge Cancio: thanks to DM. This is a good basis but have some concerns wrt NR has raised. Would be good to compare our definition vs the definition of ICANN legal.

·         David McAuley (RySG): putting bylaw language aside for a moment, what would apply? Hard to ask as the bylaws language is what it is.

·         Nigel Roberts: I wish people would actually read the remarks of the learned judge in .XXX v ICANN IRP.

·         Tatiana Tropina: I lowered my hand, because Greg said everything I wanted to say. The onlt thing I would still like to reiterate is my thanks to David. This definition suggested by him reflects the scope of the term and the changing nature of laws and regulations.

·         Nigel Roberts: Nothing applies by default. Agree that the core value is very important

·         David McAuley (RySG): I think ICANN's commitment to respect HR is significant

·         Avri Doria: I thought the commitment was meant to be empty from the beginning.  certainly was always an empty phrase.

·         Greg Shatan: Applicable law is not that malleable and elusive.

·         Chris LaHatte: if nothing applies by default then we reach consensus on what we want, that seems logic

·         Nigel Roberts: It BECOMES applicable when ICANN voluntarily agrees to it.

·         Tatiana Tropina: I disagree

·         Greg Shatan: That's not how applicable law works.

·         Nigel Roberts: Anything else is domestic black letter law.

·         Greg Shatan: Or the law generally. Applicable law is the law that ICANN is subject to.

·         Nigel Roberts: Exactly, Greg. California law, for example.

·         Erich Schweighofer: Applicable law is a reality, different according to the jurisdiction. Human rights are determined by the applicable law that should comply with the international human rights obligations of the respective jurisdiction.

·         Nigel Roberts: Turkish law for example.

·         John Laprise: agreed

·         David McAuley (RySG): Thanks Niels - think it would be good to hear from ICANN legal on this

·         Tatiana Tropina: Agree about ICANN legal

·         Greg Shatan: Turkish law only applies in limited circumstances.  I would assume only to actions taken in Turkey.

·         Nigel Roberts: Probably.

·         Matthew Shears: good then we are all on the same page

·         Nigel Roberts: Point I was making is that many jurisdictions' law is applicable law where ICANN's actions have an effect in that jurisdiction. I could just as easily have said Belgian law, or DC law - all places where ICANN has offices and staff

·         Kavous Arasteh: Voluntary or mandatory is the key -

·         Niels ten Oever: We should move this to the list. Please read and comment.
4. Analysis and discussion on the progress of the drafting team working on the new proposal for FoI

·         Niels ten Oever: Let us go through this part by part and let us not do any wordsmithing.

·         Jorge Cancio (GAC Switzerland) 2: +1 Avri - there is however a principle in law (at least in continental Europe) that a provision has to be construed so as to give it a purpose, a meaning...

·         Nigel Roberts: Jorge - i totally agree - but don't expect ICANN to take a teleological view

·         Greg Shatan: This is a draft document at this point. Taking Ruggie as is, is not what should be done.

·         Avri doria: Ruggie should be seen and an integral piece, either we take all of it or walk away from it.

·         Matthew shears: I think we can find guidance in Ruggie at this stage.

·         Tatiana Tropina: I agree with Avri in general - they are integral piece and we shall use them as inspiration, but they are so much about implementation that it's impossible to use them as a piece

·         Matthew Shears: agree - the implementation is far beyond our mandate

·         David McAuley (RySG): Agree w Tatiana

·         Avri Doria: I am becoming convinced that it is an empty mandate.

·         Nigel Roberts: Can I propose, please, that we reiew secetion 58 of ICM Registry v ICANN please?? This deals with applicable international law. " ICANN voluntarily subjected itself to these general principles in its Articles of Incorporation, something that both California law permits and that is typical in international arbitrations, especially when public goods are at stake. "

·         Mathew Shears: Our mandate is to take this back what is required. The problem with Ruggie is that is goes into implementation which is beyond our mandate but we can be inspired by it. I don't think we have hashed out the various parts to go through it in detail

·         Niels ten Oever 2: @TT - Not in detail, high level, to see where the thinking is going.  And so we can profit from the ideas from people out side of the drafting team.

·         Lee Hibbard: have been following the last calls closely. Ruggie is a starting point for ICANN but should not be the only one. Council of Europe (where I work) will release shortly a document about the HR implications of many TLDs. We need to mindful of HR principles but we should not go into implementation.

·         Jorge Cancio: I agree with MS - Ruggie is good for guidance but they are not the right level vs WS1 recommendations. The drafters have been working intensively for the last 3 or 4 days. There is much common ground on general topics if not on specific wording. We all agree that the mission is a core boundary…….

·         Kavouss Arasteh: Jorge, these are already known and we need not to repeat them again

·         Brett Schaefer: Sorry, but we seem to be going in circles. Aside for applicable law, which has been clarified to some extent, this conversation is just reiterating what we discussed in the last few calls. We still do not seem any closer to defining respect for human rights, etc.

·         Avri Doria: I do not see any room for proposals as long as we are stuck with existing law. we are already covered by that and it adds nothing.

·         Brett Schaefer: Matthew and Tatiana, sorry, I don't see the progress. The same fundamental disagreements remain unresolved.

·         Tatiana Tropina: I didn't expect them to be resolved in one week.

·         Erich Schweighofer: There is applicable law and international human rights law (HRC, ECtHR etc.). ICANN has to position itself in this network. Neutral, supportive (Ruggie) or laissez-faire (States).

·         Tatiana Tropina: But I appreciate your feedback :) we will try harder :)

·         Nigel Roberts: Please refer ICM Registry v ICANN

·         Matthew Shears: Brett feel free to make suggestions

·         Avri Doria: WS1 did not work out because people want the fig leaf of HR, without any commitment to HR.  that is now quite obvious.

·         Niels ten Oever: Staff to ask ICANN legal for their interpretation of applicable law and comment on our draft one. Work on the drafting team should continue and new members are welcome to join.

·         Brett Schaefer: I have, they have been rejected. Part of the disagreements I mentioned. We need to narrow our focus to rights likely to be related to ICANN's work and clarify what ICANN's responsibilities are. But that would be "cherry picking".

·         Niels ten Oever 2: @Brett - we have been having a list of documents for quite a while.

·         Greg Shatan: We should not be cherry picking. Unfortunate the transcript of the last meeting has not been posted on the Wiki. Agree with BS. Until we get past simply applying Ruggie completely we will never progress.

·         Avri Doria: I find the blockage to existing law unhelpful. existing law adds NOTHING new.

·         John Laprise: +1 Avri

·         Cheryl Langdon-Orr (CLO): agree Avri

·         Chris LaHatte: Ruggie etc are a guide so we choose what we want

·         Greg Shatan: Ruggie cannot be the only guidance.  It's like going to a city and told there is only one guidebook.

·         Niels ten Oever: We have reached the end of the call. Looking forward to continuing the discussion online. Adjourned.


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