[Ws2-jurisdiction] [CCWG-ACCT] Scope of mandate on HR FOI

matthew shears mshears at cdt.org
Fri Jan 27 20:49:55 UTC 2017 

Hi Greg - yes, see inline

On 27/01/2017 19:42, Greg Shatan wrote:
> I tend to agree for the most part with Tatiana.
>
> We have been asked to "confirm that [the Human Rights subgroup] it has 
> completed developing the Human Rights FOI per Annex 12."  This can't 
> be a rubber stamp.We need to satisfy ourselves that this FoI really 
> reflects /how/ and /that /we have considered each of the following:
>
> ·Consider which specific Human Rights conventions or other 
> instruments, if any, should be used by ICANN in interpreting and 
> implementing the Human Rights Bylaw.
>
> ·Consider the policies and frameworks, if any, that ICANN needs to 
> develop or enhance in order to fulfill its commitment to respect Human 
> Rights.
>
> ·Consistent with ICANN’s existing processes and protocols, consider 
> how these new frameworks should be discussed and drafted to ensure 
> broad multistakeholder involvement in the process.
>
> ·Consider what effect, if any, this Bylaw would have on ICANN’s 
> consideration of advice given by the Governmental Advisory Committee 
> (GAC).
>
> ·Consider how, if at all, this Bylaw will affect how ICANN’s 
> operations are carried out.
>
> ·Consider how the interpretation and implementation of this Bylaw will 
> interact with existing and future ICANN policies and procedures.
>
I agree we need to have this discussion.
>
>
> Do we want "consider" to be synonymous with "duly take into account" 
> which can be satisfied by reviewing and considering an element (say, a 
> public comment) and then ​deciding that nothing will be as a result of 
> that review?  At the very least, we need to make sure we did the 
> "review and consider" part.  If no changes need to be made in the FoI 
> on a given point, then we should be able to say why we came to that 
> conclusion.
Agree.  As I suggested in my e-mail.
>
> *We need to have a substantial discussion to determine whether the FoI 
> reflects that we have considered each of these elements, and reflects 
> the outcome of that consideration.*
>
> *Until we do this, I strongly question whether the Framework of 
> Interpretation document is ready for Public Comment.* If we decided 
> that separate documents/annexes/etc. were needed, then perhaps this 
> could be put out for comment. But I question that as well.  Those 
> really are parts of the FoI package, and would also need to be put out 
> for Public Comment before the Bylaw graduates from "dormant" status.  
> Wouldn't it be better to have the whole package out there at once?  As 
> an alternative, we could put the FoI out for a second set of comments 
> while putting the added pieces out for first comments (and possibly 
> only comments).
Preferably one time - anything else will be confusing.
>
> ​Also, the determination of the Co-Chairs​ was that we follow Annex 
> 12, rather than Annex 6.  Annex 12 calls for a single integrated 
> document reflecting all considerations.  Annex 6 calls for follow-on 
> documents. Since we are going with Annex 12 any additional material 
> needed to reflect our "consideration" *must be in the FoI itself.*
If it is appropriately considered and necessary, yes.
> *
> *
> One last point.  I think that the open-ended invitation to "
> develop suggestions for ICANN implementing the HR FOI
> ​"
>  goes beyond our mandate.  The only implementation advice we should be 
> giving would be as a result of "considering" the 6 bullet points 
> above. One could say there is an express or implied element of 
> implementation (or more accuerately "implementation guidance," which 
> is not quite the same thing)
> ​ in each of these bullet points.
Some of those bullets are clearly related to implementation - which is, 
while important to consider for the FoI, beyond our mandate.  Now, if we 
wished to go down that route that would be separate to the FoI.
> A textual analysis of the Bylaw, no matter how excellent it is, does 
> not satisfy any of these points.  And going beyond these points into 
> an unfettered discussion of suggestions for Implementation would be 
> going too far.
A delicate balance for sure, but one we can address.

Matthew
>
> So, I'm sorry to say, we're not there yet.
>
> Greg
>
>
> ​
> On Fri, Jan 27, 2017 at 1:15 PM, Seun Ojedeji <seun.ojedeji at gmail.com 
> <mailto:seun.ojedeji at gmail.com>> wrote:
>
>     Thanks, do find inline:
>
>     On Jan 26, 2017 2:11 PM, "León Felipe Sánchez Ambía"
>     <leonfelipe at sanchez.mx <mailto:leonfelipe at sanchez.mx>> wrote:
>
>         Dear all,
>
>
>         Considering these and other factors the Co-Chairs would
>         recommend that the Human Rights sub-group confirm that it has
>         completed developing the Human Rights FOI per Annex 12 of the
>         CCWG-Accountability WS1 Recommendations.
>
>
>     SO: Exact question that I have been asking as well, which also
>     implies that it's not helpful to put the draft FoI to public
>     comment without getting clear response on the point above!
>
>
>
>         Should the sub-group feel that it should develop suggestions
>         for ICANN implementing the HR FOI based on its work to date
>         the Co-Chairs would be amenable to this and would invite the
>         HR sub-group to submit any such suggestions to the plenary for
>         consideration by early May 2017, if there was no objection
>         from the plenary.
>
>
>     SO: May I ask the Co-Chairs to clarify what part of the WS1 report
>     mandates the HR subgroup to carry out the task above or is this
>     WS2 assigning a new task to the subgroup?. Like I have said, it
>     seem to me that all HR needed to produce was the FoI and they just
>     need to confirm if the draft they sent was done is consideration
>     of Annex 12 period!
>
>     Regards
>
>
>         Best regards,
>
>
>         Thomas, Mathieu and León
>
>
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-- 
------------
Matthew Shears
Global Internet Policy and Human Rights
Center for Democracy & Technology (CDT)
+ 44 771 2472987

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