<div dir="ltr">Hi Niels,<div><br></div><div>thanks for asking, Gabrielle were asking for edits and comments and I think that is partly done. </div><div>since were are late for submission NCSG policy committee should proceed swiftly so we can submit the comment. the comment link <a href="https://docs.google.com/document/d/1swluHqQOEC4RZSO38if3qpBlfCDIqXjoaChoYYmrBfo/edit">https://docs.google.com/document/d/1swluHqQOEC4RZSO38if3qpBlfCDIqXjoaChoYYmrBfo/edit</a> </div><div><br></div><div>@Joy @Robin @Avri can you please check the document quickly?</div><div><br></div><div>Best,</div><div class="gmail_extra"><br clear="all"><div><div dir="ltr">Rafik <br></div></div>
<br><div class="gmail_quote">2014-09-10 18:56 GMT+09:00 Niels ten Oever <span dir="ltr"><<a href="mailto:lists@digitaldissidents.org" target="_blank">lists@digitaldissidents.org</a>></span>:<br><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex">-----BEGIN PGP SIGNED MESSAGE-----<br>
Hash: SHA1<br>
<br>
Dear Rafik,<br>
<br>
Has this been submitted?<br>
<br>
Best,<br>
<br>
Niels<br>
<br>
Niels ten Oever<br>
Head of Digital<br>
<br>
Article 19<br>
<a href="http://www.article19.org" target="_blank">www.article19.org</a><br>
<br>
PGP fingerprint = 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9<br>
<div><div class="h5"><br>
On 08/29/2014 05:26 PM, Rafik Dammak wrote:<br>
> Hi Gabrielle,<br>
><br>
> thank you very much for this effort, that is coming at perfect time<br>
> just before IGF and the session there organized by council of<br>
> europe about the report (Details shared by Bill few days ago)<br>
><br>
> Best,<br>
><br>
> Rafik<br>
><br>
> 2014-08-29 23:02 GMT+09:00 Gabrielle Guillemin<br>
> <<a href="mailto:gabrielle@article19.org">gabrielle@article19.org</a>>:<br>
><br>
>> Hi all<br>
>><br>
>> Hope all is well. Just a quick note to say that I had a go at<br>
>> summarising the various comments that have been made by various<br>
>> NCSG members about the COE report on human rights. Here is a<br>
>> draft:<br>
>><br>
>><br>
>> <a href="https://docs.google.com/document/d/1swluHqQOEC4RZSO38if3qpBlfCDIqXjoaChoYYmrBfo/edit" target="_blank">https://docs.google.com/document/d/1swluHqQOEC4RZSO38if3qpBlfCDIqXjoaChoYYmrBfo/edit</a><br>
>><br>
>><br>
>><br>
Your comments / edits are welcome. Let me know if there is anything else I<br>
>> can do to help.<br>
>><br>
>> All the best,<br>
>><br>
>> Gabrielle<br>
>><br>
>><br>
>><br>
>> -----Original Message----- From: joy [mailto:<a href="mailto:joy@apc.org">joy@apc.org</a>] Sent:<br>
>> 29 July 2014 21:56 To: Gabrielle Guillemin;<br>
>> <a href="mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU">NCSG-DISCUSS@LISTSERV.SYR.EDU</a> Subject: Re: COE Doc open to<br>
>> comments<br>
>><br>
>> Hi all - just a note to advise that I checked with Lee Hibbard at<br>
>> Council of Europe on the deadline for comments. He's noted they<br>
>> are aiming for a compilation of comments by 8 September. We<br>
>> should try to finalise sooner if we can, though, and I'll aim to<br>
>> take another look at the shared document later this week. Cheers<br>
>> Joy On 25/07/2014 8:34 a.m., joy wrote:<br>
>>> Thanks so much Gabrielle I am not actually sure when the<br>
>>> comments are due - but will check. Regards Joy On 23/07/2014<br>
>>> 10:40 p.m., Gabrielle Guillemin wrote:<br>
>>>> Hi all<br>
>>>><br>
>>>> Hope all is well. Thanks very much for all the comments on<br>
>>>> the COE<br>
>> document. As Marilia said, I'd be happy to contribute too but I<br>
>> won't be able to do so until mid-/late August.<br>
>>>><br>
>>>> In the meantime, I thought it might help to get us going if<br>
>>>> we have a<br>
>> document that others can start working on based on comments<br>
>> already received, so here is a link to a googledoc where I have<br>
>> just reproduced Ed, Joy and Milton's contributions.<br>
>>>><br>
>>>> <a href="https://docs.google.com/document/d/1swluHqQOEC4RZSO38if3qpBlfCDIqXjoa" target="_blank">https://docs.google.com/document/d/1swluHqQOEC4RZSO38if3qpBlfCDIqXjoa</a><br>
>>>><br>
>>>><br>
ChoYYmrBfo/edit?usp=sharing<br>
>>>><br>
>>>> Do get in touch if there are any technical problems with the<br>
>>>> document.<br>
>>>><br>
>>>> Hope that helps.<br>
>>>><br>
>>>> All best,<br>
>>>><br>
>>>> Gabrielle ________________________________________ From:<br>
>>>> NCSG-Discuss [<a href="mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU">NCSG-DISCUSS@LISTSERV.SYR.EDU</a>] on behalf of<br>
>>>> joy [<a href="mailto:joy@APC.ORG">joy@APC.ORG</a>] Sent: 22 July 2014 22:03 To:<br>
>>>> <a href="mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU">NCSG-DISCUSS@LISTSERV.SYR.EDU</a> Subject: Re: COE Doc open to<br>
>>>> comments<br>
>>>><br>
>>>> Hi Ed - thanks so much for this additional work through of<br>
>>>> the document in detail - that is extremely helpful! Shall we<br>
>>>> start a shared document and begin building the submission<br>
>>>> based on these and<br>
>> other inputs?<br>
>>>> anyone else have time to comment? We should try and develop<br>
>>>> a response soon .. also, i am still mulling over your points,<br>
>>>> Ed, but a few responses below .... thanks again! Joy<br>
>>>><br>
>>>> On 21/07/2014 10:44 a.m., Edward Morris wrote:<br>
>>>>> Thanks to Joy for her usual comprehensive and erudite<br>
>>>>> analysis. A few things I’d like to offer for consideration,<br>
>>>>> in response both to Joy’s post and to the CoE document<br>
>>>>> itself:<br>
>>>>><br>
>>>>><br>
>>>>> 1. Ordinarily I would be strongly supportive of Joy’s<br>
>>>>> recommendation that ICANN be prodded to join the Global<br>
>>>>> Network Initiative (GNI). I probably still am. However, I’m<br>
>>>>> a bit concerned about the resignation of the Electronic<br>
>>>>> Frontiers Foundation (EFF)<br>
>> from the GNI in October of last year.<br>
>>>>> Before proceeding with a recommendation that ICANN join the<br>
>>>>> GNI, I’d suggest that we reach out to our EFF members and<br>
>>>>> determine their views on the matter, given the action of<br>
>>>>> their parent organization.<br>
>>>>><br>
>>>> That's a great idea - would you like to do that? I can also<br>
>>>> ask Katitza Rodriguez<br>
>>>>> 2. Lee, Monika and Thomas should be thanked both for their<br>
>>>>> work on this report and for the overall effort of the CoE<br>
>>>>> in promoting the inclusion of human rights considerations<br>
>>>>> within internet governance generally, and within ICANN<br>
>>>>> specifically. There is a lot of good in this report. I want<br>
>>>>> to particularly commend the authors on recognizing that<br>
>>>>> domain names such as .sucks “ordinarily come within the<br>
>>>>> scope of protection offered by the right of freedom of<br>
>> expression”(§117).<br>
>>>>><br>
>>>> +1<br>
>>>>> 3. I agree with the author’s suggestion that a human rights<br>
>>>>> advisory panel be created within ICANN (§134). NCSG member<br>
>>>>> Roy Balleste has done some excellent work in this area and<br>
>>>>> I’d suggest he be consulted as to whether the specific<br>
>>>>> composition of the panel suggested in this report is an<br>
>>>>> optimal one.<br>
>>>> Great - I'd love to see this - also we did an NCUC submission<br>
>>>> about 18months ago on human rights and ICANN - it's still<br>
>>>> relevant imho.<br>
>>>>> 4. The authors incorrectly suggest that the GAC is the<br>
>>>>> “sole voice of human rights” within ICANN (§125). We should<br>
>>>>> politely remind the Council of Europe that the leading<br>
>>>>> voice for human rights within ICANN has never been GAC but<br>
>>>>> rather has been the NCSG, it’s predecessor, and it’s member<br>
>>>>> constituencies.<br>
>>>>><br>
>>>> quite right - it might be the sole voice for governments,<br>
>>>> but certainly not for human rights!<br>
>>>>> 5. The authors may be partially correct in stating the<br>
>>>>> American Bill of Rights do not apply to ICANN (§9). As a<br>
>>>>> corporation, it is likely that ICANN is not obligated to<br>
>>>>> follow the precepts of the Bill of Rights in it’s<br>
>>>>> relationships with others. I say likely, because if ICANN<br>
>>>>> were construed by the courts to be a U.S. government<br>
>>>>> contractor, which in some ways it currently is, ICANN could<br>
>>>>> be construed as participating in state action and then<br>
>>>>> would be obligated to act as if it were a state actor vis a<br>
>>>>> vis third parties. In this case, the Bill of Rights would<br>
>>>>> apply to ICANN in its<br>
>> relationship with others.<br>
>>>>><br>
>>>>> I think it is also important to note that under American<br>
>>>>> law ICANN is considered a person, albeit a non-natural<br>
>>>>> person, and does benefit from the protections offered by<br>
>>>>> Bill of Rights. It is bound to the Bill of Rights in this<br>
>>>>> way. Further, ICANN is also protected from government<br>
>>>>> interference through the Declaration of Rights of the<br>
>>>>> Constitution of the State of California (article 1), one of<br>
>>>>> the most comprehensive statutory grants of rights that<br>
>>>>> exist in the world. These are important considerations as<br>
>>>>> we debate the future<br>
>> legal status and location of ICANN corporate.<br>
>>>> at the risk of stirring the constitutional law dragons, i<br>
>>>> think a key question is also how the international<br>
>>>> obligations of the US goverment relate to a corporation such<br>
>>>> as ICANN<br>
>>>>> 6. The suggestion that a legal model other than trademark<br>
>>>>> law be considered to “address speech rights” (§117) is<br>
>>>>> welcome, with the caveat that any such model must expand<br>
>>>>> freedom of expression and not further restrict it. As bad<br>
>>>>> as the trademark maximalist model we now have is, there are<br>
>>>>> many legal models far more dangerous for ICANN to adhere<br>
>>>>> to, and open-ended recommendations in this regard should<br>
>>>>> best be avoided lest they be used by those favoring a more<br>
>>>>> restrictive<br>
>> speech model.<br>
>>>> hhmmm - maybe we could toss around some more ideas here ...<br>
>>>> via the shared doc?<br>
>>>>> 7. The authors recognize the difficulty defining and<br>
>>>>> actualizing in policy the term “public interest” (§115). As<br>
>>>>> they acknowledge, it is a vague term “providing neither<br>
>>>>> guidance nor constraint on ICANN’s<br>
>> actions”<br>
>>>>> (§115). They then suggest we need to “flesh out the<br>
>>>>> concept” of global public interest to strengthen<br>
>>>>> accountability and transparency within ICANN (§115).<br>
>>>>><br>
>>>>> I’d suggest we move away from use of the term “public<br>
>>>>> interest” in all regards, as it’s imprecise definition<br>
>>>>> leads to more problems than it solves. I’m particularly<br>
>>>>> nonplused by the positioning of the concepts of<br>
>>>>> accountability and transparency as a seeming subset of<br>
>> “public interest”<br>
>>>>> (115).<br>
>>>>><br>
>>>>> Accountability and transparency are practices ICANN needs<br>
>>>>> to embrace regardless of the “public interest”, whatever it<br>
>>>>> is. These twin concepts strengthen both the ICANN community<br>
>>>>> and ICANN corporate. An attitude that transparency and<br>
>>>>> accountability are something that must be done to<br>
>>>>> strengthen ICANN externally (e.g. in the public interest)<br>
>>>>> should be rejected in favor of an acknowledgement that such<br>
>>>>> processes strengthen ICANN internally.<br>
>>>>><br>
>>>>> Any benefit to the nebulous “public interest” is welcome,<br>
>>>>> but the principle reason for ICANN to conduct it’s affairs<br>
>>>>> in a transparent and accountable manner is that it<br>
>>>>> strengthens both ICANN the institution and ICANN the<br>
>>>>> community. It is self-interest, not public interest, which<br>
>>>>> should drive ICANN to function in a manner as transparent<br>
>>>>> and accountable as possible.<br>
>>>>><br>
>>>>> We need to reject any suggestion that accountability and<br>
>>>>> transparency are dependent variables subject to whatever it<br>
>>>>> is that “public interest” is determined to be. They stand<br>
>>>>> on their own.<br>
>>>>><br>
>>>> I do think ICANN should be as transparent and accountable as<br>
>>>> possible and I agree that transparency and accountability<br>
>>>> should not be dependent variables, but I don't have the same<br>
>>>> negative reaction to "public interest" - on the contrary, I<br>
>>>> find it a useful concept, especially in administrative law as<br>
>>>> a way to counter the power imbalances between private<br>
>>>> interests and those of the wider communit(ies) which States<br>
>>>> have obligations to protect - also because the notion of<br>
>>>> public law and State obligations in the public arena is a<br>
>>>> core component of the international human rights framework<br>
>>>> (which distinguishes between public and private law for<br>
>>>> example). So I would not want to negate it in the context of<br>
>>>> responding to the CoE paper nor in thinking through how this<br>
>>>> is relevant to ICANN.<br>
>>>><br>
>>>>> 8. I am concerned about the attempt of the authors to<br>
>>>>> position “hate speech” as an accepted derogation from free<br>
>>>>> expression norms. This is not something that is generally<br>
>>>>> accepted in the human rights community, but rather is a<br>
>>>>> controversial notion that provokes rather heated and<br>
>>>>> emotional argumentation amongst erstwhile allies.<br>
>>>>><br>
>>>>> We need to reject any notion that ICANN, in the guise of<br>
>>>>> obeying human rights norms, should police speech or in any<br>
>>>>> way deny domain name applications because they may run<br>
>>>>> afoul of ‘hate speech’<br>
>> principles.<br>
>>>>> This is in keeping with the longstanding tradition of this<br>
>>>>> SG to oppose efforts of ICANN to regulate content or<br>
>>>>> speech.<br>
>>>>><br>
>>>>> My personal view is that hate speech laws are not<br>
>>>>> justifiable in any society or institution with any sort of<br>
>>>>> serious commitment to the principles of free speech. I know<br>
>>>>> that there are many within our SG supportive of my views in<br>
>>>>> this regard; I suspect there may be members that differ.<br>
>>>>> Regardless of specific views on the issue, I hope we can<br>
>>>>> all agree that ICANN is not the institution that should be<br>
>>>>> determining what ‘hate speech’ is and then enforcing its<br>
>> determination.<br>
>>>>><br>
>>>>> The authors acknowledge that “despite its frequent use,<br>
>>>>> there is no clear or unique understanding of what is ‘hate<br>
>>>>> speech’, and the definitions and conceptions vary in<br>
>>>>> different countries” (§45). They then recognize that the<br>
>>>>> European Court of Human Rights has not defined the term in<br>
>>>>> order that it’s reasoning, “is not confined within<br>
>>>>> definitions that could limit its action in future<br>
>>>>> cases”(§46). Given the complexity of the issues, the<br>
>>>>> authors suggest that ICANN needs to regularly consult with<br>
>>>>> the Council of Europe (§46). I’d suggest that ICANN should<br>
>>>>> only do so if the same opportunity is given to<br>
>>>>> intergovernmental organizations from all the<br>
>> world’s regions. Europe should not receive special<br>
>> consideration.<br>
>>>>><br>
>>>>> The authors should be credited with attempting to create<br>
>>>>> unity out of the plurality of opinions and views relating<br>
>>>>> to the proposed hate speech derogation from the universally<br>
>>>>> recognized right of free expression. Upon close scrutiny,<br>
>>>>> though, they cannot be said to have<br>
>> accomplished their goal.<br>
>>>>> Take, for example, their references to Article two of the<br>
>>>>> Additional Protocol to the Budapest Convention on<br>
>>>>> Cybercrime, as they attempted to define some portion of<br>
>>>>> ‘hate crime’.<br>
>>>>><br>
>>>>> The Additional Protocol cannot be considered part of the<br>
>>>>> universal human rights acquis. The numbers are pretty<br>
>>>>> stark: Of the seventeen non Council of Europe signatories<br>
>>>>> to the Cybercrime Convention only two have ratified the<br>
>>>>> Additional Protocol. Of even greater significance, of the<br>
>>>>> forty-seven members of the Council of Europe only twenty<br>
>>>>> have signed the Additional Protocol (§45).<br>
>>>>><br>
>>>>> Rather than demonstrating acceptance of the ‘hate speech’<br>
>>>>> derogation, the lack of ratification of the Additional<br>
>>>>> Protocol suggests severe reservations about the concept.<br>
>>>>> Certainly the proposed definition is suspect. This is true<br>
>>>>> even in Europe, the area of the world where the hate speech<br>
>>>>> derogation appears to have its greatest popularity, and<br>
>>>>> within the Council of Europe itself.<br>
>>>>><br>
>>>>> Despite this, while recognizing there should be a<br>
>>>>> “balancing” test, the authors recommend that ICANN “should<br>
>>>>> ensure that ‘hate speech’ is not tolerated in the<br>
>>>>> applied-for gTlds” (§60).<br>
>>>>><br>
>>>>> We need to vociferously oppose this recommendation.<br>
>>>>><br>
>>>>> ICANN should not be in the business of regulating speech.<br>
>>>>> It certainly should not be in the business of deciding what<br>
>>>>> is or is not hate speech, a concept with limited<br>
>>>>> international acceptance and a variable definition, and<br>
>>>>> then prohibiting it.<br>
>>>>><br>
>>>>> We cannot and should not accept any proposal that puts<br>
>>>>> ICANN in the position of being a censor. This particular<br>
>>>>> recommendation within this Council Of Europe report does<br>
>>>>> just that and needs to be rejected.<br>
>>>> The debate on hate speech also has a strong feminist<br>
>>>> critique, some of which supports your arguments, some of<br>
>>>> which does not - we could talk more offlist about it. I agree<br>
>>>> on the 'ICANN not being a censor' point, but this begs the<br>
>>>> question of how should human rights, ALL rights, be balanced<br>
>>>> in the decision-making - on this I would point back to the<br>
>>>> need for a rigorous policy making process (getting the rights<br>
>>>> arguments looked at there and getting GAC members involved<br>
>>>> in that process, which is one of our longstanding SG<br>
>>>> positions). maybe there are other ideas here as well ...<br>
>>>>> 9. In the strongest terms possible I oppose any suggestion<br>
>>>>> of giving ICANN “international or quasi-international<br>
>>>>> status” (§136) and I hope others will join me, as an SG and<br>
>>>>> individually, in this<br>
>> opposition.<br>
>>>>><br>
>>>>> Joy “shudders’” at the authors suggestion that the<br>
>>>>> international legal status of the Red Cross / Red Crescent<br>
>>>>> societies should serve as a “source of inspiration” for<br>
>>>>> ICANN’s future organizational legal position (§137). I<br>
>>>>> shudder with her. Joy then suggests that the ILO might “be<br>
>>>>> a better model”. It might be, but if ICANN received a<br>
>>>>> status similar to that of the ILO I respectfully suggest<br>
>>>>> that shudder rather than support would still be an<br>
>>>>> appropriate response.<br>
>>>> actually I am not suggesting ILO as a model, i was simply<br>
>>>> surprised that the CoE paper did not even mention it - I know<br>
>>>> some governments are looking at the ILO becuase it is<br>
>>>> tri-partite (government, employers and worker representation)<br>
>>>> - and therefore using it to try and persuade other<br>
>>>> governments that other multi-stakeholder options do exist<br>
>>>> internationally<br>
>>>>> With international legal status come a set of privileges<br>
>>>>> and legal immunities. The ILO is actually a pretty good<br>
>>>>> place to see what these entail. As a specialized agency of<br>
>>>>> the United Nations the ILO benefits from the 1947<br>
>>>>> Convention on Privileges and Immunities which grants,<br>
>>>>> amongst other benefits:<br>
>>>>><br>
>>>>><br>
>>>>> 1. Immunity from legal process for the organization and for<br>
>>>>> its officials in its official acts, with even greater<br>
>>>>> immunity for executive officials,<br>
>>>>><br>
>>>>> 2. The inviolability of the organizations physical<br>
>>>>> premises, assets and archives as well as special protection<br>
>>>>> for its communications,<br>
>>>>><br>
>>>>> 3. Restriction from financial controls,<br>
>>>>><br>
>>>>> 4. Exemption from taxation of the organization and its<br>
>>>>> employees,<br>
>>>>><br>
>>>>> 5. Certain privileges similar to that given diplomats for<br>
>>>>> those attending organizational meetings.<br>
>>>>><br>
>>>>><br>
>>>>> The Red Cross receives similar privileges. The agreement<br>
>>>>> between the ICRC and the Swiss Federal Council mandates<br>
>>>>> that the Red Cross receives, amongst other benefits:<br>
>>>>><br>
>>>>><br>
>>>>> 1. Immunity from legal process and prosecution. This<br>
>>>>> immunity extends to both the organization and to officials<br>
>>>>> and continues with respect to officials even after they<br>
>>>>> leave office,<br>
>>>>><br>
>>>>> 2. Inviolability of its premises and archives,<br>
>>>>><br>
>>>>> 3. Exemption from taxation,<br>
>>>>><br>
>>>>> 4. Special customs privileges,<br>
>>>>><br>
>>>>> 5. Special protection for its communications.<br>
>>>>><br>
>>>>><br>
>>>>> It is easy to see why ICANN staff would be excited about<br>
>>>>> proposals to give it international status. It is less easy<br>
>>>>> to understand why anyone who is not a member of the ICANN<br>
>>>>> staff thinks that this is a<br>
>> good idea.<br>
>>>>><br>
>>>>> In justifying its support for granting ICANN international<br>
>>>>> legal status the authors write, “ICANN should be free from<br>
>>>>> risk of dominance by states, other stakeholders, or even<br>
>>>>> its own staff” (§136). I agree with the principle but fail<br>
>>>>> to see how granting ICANN international legal status does<br>
>>>>> anything but further entrench the growing hegemony of ICANN<br>
>>>>> staff, making their actions less<br>
>> transparent and less accountable.<br>
>>>> well, i don;t disagree there :)<br>
>>>>> As currently constituted, the three sources of definite<br>
>>>>> external accountability for ICANN are 1) the NTIA, 2) the<br>
>>>>> attorney general of the State of California (AG) and the 3)<br>
>>>>> courts, principally those located in California. As the<br>
>>>>> NTIA withdraws from oversight the two remaining sources of<br>
>>>>> external control over ICANN are the AG and the courts.<br>
>>>>> Should this CoE proposal for international status be<br>
>>>>> accepted, in lieu of other changes, there will be no<br>
>>>>> external control over ICANN. We cannot support this<br>
>>>>> proposition.<br>
>>>>><br>
>>>>> I believe ICANN is already properly structured as a<br>
>>>>> private, not for profit corporation. The authors<br>
>>>>> inadvertently recognize benefits that accrue to this<br>
>>>>> structure. In stating that ICANN has “flexibly” met the<br>
>>>>> “changing needs of the internet”(§1) the authors<br>
>>>>> implicitly recognize a value associated more with private<br>
>>>>> corporations than with those institutions accorded<br>
>>>>> international status. In using the .XXX decision as an<br>
>>>>> example where the values of free expression trumped<br>
>>>>> community and corporate objections (§57), it should be<br>
>>>>> noted that some observers, myself included, believe the<br>
>>>>> Board’s decision in this matter was caused by fear of<br>
>>>>> losing a lawsuit threatened by ICM Registry. Immunity from<br>
>>>>> legal process eliminates this control<br>
>> mechanism.<br>
>>>>><br>
>>>>> To support corporate structure does not necessarily mean<br>
>>>>> supporting ICANN’s continued corporate residence in<br>
>>>>> California. I reject the notion, though, that leaving<br>
>>>>> California necessarily would make things better from the<br>
>>>>> perspective of civil society or of the individual user. It<br>
>>>>> would depend upon the legal structure of the<br>
>> receiving jurisdiction.<br>
>>>>><br>
>>>>> As long as ICANN is situated in California there is a<br>
>>>>> corporate reorganization that would better help ICANN meet<br>
>>>>> the goals enunciated by the CoE authors: the cration of<br>
>>>>> membership within ICANN.<br>
>>>>><br>
>>>>> Changing ICANN’s corporate structure from that of a<br>
>>>>> California public benefit corporation without members to<br>
>>>>> that of a California public benefits corporation with<br>
>>>>> members, per §5310 - §5313 of the California Corporations<br>
>>>>> Code, would do a far better job of creating a truly<br>
>>>>> responsive and democratic ICANN than granting ICANN<br>
>>>>> international status would. A more comprehensive discussion<br>
>>>>> of this concept can be found in my 27 June post on<br>
>>>>> Accountability elsewhere on<br>
>> this list.<br>
>>>> thanks Ed - I'll take a look<br>
>>>>> I would also suggest that creating a special international<br>
>>>>> legal status for ICANN would somewhat entrench the<br>
>>>>> organization, and not in a good way. None of us know what<br>
>>>>> the communications landscape will<br>
>> look like in a decade.<br>
>>>>> There is certainly the possibility that block chain<br>
>>>>> technology, or technologies not yet dreamt of, will obviate<br>
>>>>> the need for a central naming and addressing authority. It<br>
>>>>> is reasonable to think that an entity with international<br>
>>>>> legal status would be more likely to try to cling to it’s<br>
>>>>> ossified technology than would a private corporation<br>
>>>>> responsive to its members.<br>
>>>>><br>
>>>>> Thanks for considering my comments. Hopefully they will<br>
>>>>> provide a further basis for discussion.<br>
>>>>><br>
>>>> Indeed !<br>
>>>>> Best,<br>
>>>>><br>
>>>>> Ed <br>
>>>>><br>
>>>>> -----Original Message----- From: joy <<a href="mailto:joy@APC.ORG">joy@APC.ORG</a>> To:<br>
>>>>> <a href="mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU">NCSG-DISCUSS@LISTSERV.SYR.EDU</a> Date: Fri, 18 Jul 2014<br>
>>>>> 20:31:04 +1200 Subject: Re: COE Doc open to comments<br>
>>>>><br>
>>>>> Hi Marilia - definitely - here are my preliminary thoughts<br>
>>>>> after some discussion in APC<br>
>>>>><br>
>>>>> I think the paper is very interesting and basically saying<br>
>>>>> that ICANN (including GAC) is not fulfilling human rights<br>
>>>>> obligations and that private sector, intellectual property<br>
>>>>> and and law enforcement interests have been weighed too<br>
>>>>> heavily in the balance of decision-making to the detriment<br>
>>>>> of human rights and other stakeholders, including<br>
>>>>> vulnerable groups. These are all valid (if not entirely<br>
>>>>> new) points - some reflections for working up to a possible<br>
>>>>> submission: + I think this paper is evidence that discourse<br>
>>>>> is moving beyond<br>
>> "whether"<br>
>>>>> human rights apply to ICANN public policy making (the<br>
>>>>> previous paper I contributed to) and more specifically into<br>
>>>>> "how" in a very practical way - that is excellent and<br>
>>>>> should be welcomed - the clear link to human rights in<br>
>>>>> NETMundial and related documents seems to be tipping the<br>
>>>>> human rights discussion - that is also really positive +<br>
>>>>> the use of case studies to look at how HR apply in specific<br>
>>>>> ICANN + policy areas is good, showing up deficiencies in<br>
>>>>> both the standards and processes ICANN is using - The paper<br>
>>>>> does mention social and cultural rights but only in passing<br>
>>>>> in relation to the community application dotgay, so I think<br>
>>>>> this makes our own work on ICANN and cultural rights timely<br>
>>>>> and this CoE paper will be useful for it. + several parts<br>
>>>>> of the analysis and of the recommendations were + already<br>
>>>>> made by the Non Commercial Users Constituency in a<br>
>>>>> submission developed in 2013 (one<br>
>>>>><br>
>>>>> that we worked on and which NCUC submitted to ICANN on<br>
>>>>> human rights and new gTLDs) - but I do not see that paper<br>
>>>>> cited - we should point out this connection in making<br>
>>>>> comments + clearly governments are reaching for the human<br>
>>>>> rights framework to challenge the behaviour of other<br>
>>>>> governments (as in relation the law enforcement and the<br>
>>>>> registrar accreditation agreement) - so while the paper is<br>
>>>>> directed at ICANN, it is also squarely directed between<br>
>>>>> and among governments - it suggests there is a lot of<br>
>>>>> discussion going on behind GAC's closed doors on this.... I<br>
>>>>> really like the references to the UN resolutions internet<br>
>>>>> rights - it is good to see this jurisprudence emerging. +<br>
>>>>> there is inadequate focus on how the HR framework applies<br>
>>>>> to + business - not just business interests in ICANN<br>
>>>>> stakeholders, but also the contracted parties, such as<br>
>>>>> registrars and ICANN's role as a regulator - Anriette<br>
>>>>> raised these points and I think we need to think through<br>
>>>>> how to respond on this - especially on the human rights and<br>
>>>>> business rules that were developed in the UN + the analysis<br>
>>>>> and recommendations on community applications is very +<br>
>>>>> useful and I strongly support this aspect + the paper<br>
>>>>> recommends reconsideration of ICANN's legal basis to +<br>
>>>>> include human rights in its bylaws - that is good - but<br>
>>>>> they should also become a member of the GNI: Rafik Dammak<br>
>>>>> and others have been calling for this for 2 yrs but ICANN<br>
>>>>> board has actively opposed that step. so we can raise that<br>
>>>>> + also recommends looking at the Red Cross as possible<br>
>>>>> inspiration + for a model - that made me shudder give how<br>
>>>>> the RC has behaved in policy making in<br>
>> ICANN.<br>
>>>>> A better model might be the ILO - but we must respond on<br>
>>>>> that specific<br>
>> point.<br>
>>>>> + finally, perhaps one of the more thorny and challenging<br>
>>>>> issues is + trying to define the public interest aspects of<br>
>>>>> ICANN's role and also GAC's responsibilities - i think it's<br>
>>>>> useful to raise this again and try to squarely address it<br>
>>>>> and there are some options (the paper recommends an expert<br>
>>>>> advisory group) - NCUC recommended a human rights impact<br>
>>>>> assessment of policy proposals - i think we could also<br>
>>>>> revive that idea.....<br>
>>>>><br>
>>>>><br>
>>>>><br>
>>>>><br>
>>>>> Joy<br>
>>>>><br>
>>>>> On 18/07/2014 1:01 a.m., Marilia Maciel wrote: Hi all,<br>
>>>>> Gabrielle from Article 19, myself and a few others<br>
>>>>> volunteered to work on a draft contribution with comments<br>
>>>>> and suggestions about CoE document. Joy, your involvement<br>
>>>>> is super important. Shall we start to get it going? Best,<br>
>>>>> Marília<br>
>>>>><br>
>>>>><br>
>>>>> On Tue, Jul 8, 2014 at 4:41 AM, joy <<a href="mailto:joy@apc.org">joy@apc.org</a>> wrote:<br>
>>>>><br>
>>>>> Hi Bill - what a good idea to suggest a comment period- and<br>
>>>>> great that they took it up. And a follow up event in LA<br>
>>>>> would be excellent - I am sure APC would want to support<br>
>>>>> it. I do hope it hasn't killed Thomas' chances completely!<br>
>>>>> Joy<br>
>>>>><br>
>>>>><br>
>>>>> On 8/07/2014 6:41 p.m., William Drake wrote: Hi Joy<br>
>>>>><br>
>>>>> I’m glad Lee did this, as it’s not COE’s normal procedure<br>
>>>>> at all. We suggested they try it at our meeting with them<br>
>>>>> in London. We also agreed to propose a follow up event for<br>
>>>>> LA. It’d be good to have our own position on paper prior.<br>
>>>>> Since the paper may have screwed Thomas’ campaign for GAC<br>
>>>>> chair he should have more time in LA :-( Cheers<br>
>>>>><br>
>>>>> Bill<br>
>>>>><br>
>>>>> On Jul 8, 2014, at 6:21 AM, joy <<a href="mailto:joy@APC.ORG">joy@APC.ORG</a>> wrote:<br>
>>>>><br>
>>>>> Hi Avri - thanks for sending the link through - sorry it<br>
>>>>> has taken me a while to get back on this, I've been away<br>
>>>>> from the office a while and it's taken a while to catch up<br>
>>>>> .... Thanks also Milton for your blog post about the paper<br>
>>>>> - I agree with most of your comments. There are quite a few<br>
>>>>> recommendations in the paper - was there any discussion at<br>
>>>>> the ICANN 50 meeting about an NCSG response? I note that<br>
>>>>> some of the points and recommendations in the paper were<br>
>>>>> previously covered in a submission by NCUC on new gTLDs in<br>
>>>>> 2013 and it would be worth connecting to that work in any<br>
>>>>> follow up (which I am happy to volunteer to help with).<br>
>>>>> Cheers Joy<br>
>>>>><br>
>>>>><br>
>>>>><br>
>>>>> On 7/07/2014 3:51 a.m., Avri Doria wrote: Hi,<br>
>>>>><br>
>>>>><br>
>>>>> Council of Europe triggers debate on ICANN & Human Rights<br>
>>>>><br>
>>>>> <a href="http://www.coe.int/t/informationsociety/icann-and-human-rights.asp" target="_blank">http://www.coe.int/t/informationsociety/icann-and-human-rights.asp</a><br>
>>>>><br>
>>>>><br>
>>>>><br>
Is on line and open to comments.<br>
>>>>><br>
>>>>> avri<br>
>>>>><br>
>>>>><br>
>>>>> *********************************************** William J.<br>
>>>>> Drake International Fellow & Lecturer Media Change &<br>
>>>>> Innovation Division, IPMZ University of Zurich,<br>
>>>>> Switzerland Chair, Noncommercial Users Constituency, ICANN,<br>
>>>>> <a href="http://www.ncuc.org" target="_blank">www.ncuc.org</a> <a href="mailto:william.drake@uzh.ch">william.drake@uzh.ch</a> (direct),<br>
>>>>> <a href="mailto:wjdrake@gmail.com">wjdrake@gmail.com</a> (lists), <a href="http://www.williamdrake.org" target="_blank">www.williamdrake.org</a><br>
>>>>> ***********************************************<br>
>>>>><br>
>>>>><br>
>>>>><br>
>>><br>
>><br>
>><br>
><br>
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