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HR, HR-creep and everything around isn't my strong suit. Still, your
point is convincing, Ed. <br>
<br>
I can see that IP maximalists might prefer the generalized appeal
rather than a specific privacy/free flow/free expression add on. <br>
<br>
I can also see that a privacy/free flow/free expression add on might
also be of more positive practical use. Just for that I am tempted
to say that I stand convinced. However, I don't buy the IP creep or
the other (bad-)creeps.<br>
<br>
So, my question before was : are we impaling ourselves on the horns
of a false dilemma (the mission creep)? It just sounds unconvincing
that a generalized reference to HR will invite (bad) mission creep.
HR being, you know, kind of the opposite of evil, I figured that the
creeping will may be, on the whole, rather not tilted too
dramatically on the side of evil ... <br>
<br>
That being said, now my question is: is it really important to
"honor" HR? Shouldn't we just go with what's practically best for
protecting the issues we can readily identify? isn't the more
forceful instrument the one that address specifically privacy/free
flow/free expression?<br>
<br>
That said, wanting the specific P/FF/FE insn't the same as obtaining
it. Still, the mission creep (false dilemma?) arguments could be
brought to bear to shoot down a generalized honoring of HR in favor
of a more practical P/FF/FE approach. <br>
<br>
Might be worth pursuing even with little chance of success. It is
something we can also barter and drop, so just for that it has more
value than the generalized appeal IMHO.<br>
<br>
Nicolas<br>
<br>
<div class="moz-cite-prefix">On 2015-09-05 7:07 AM, Edward Morris
wrote:<br>
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<div>Hi everyone,</div>
<div> </div>
<div>I'm sorry I haven't been very active on the
list lately. About a week and a half ago I was
taken ill and have been battling a few
problems in-patient here at a hospital in
Edinburgh. Slowly things have been getting better
and I hope to be out of here very soon and able to
resume full activity on list and online. Until
then I don't have real time internet access and am
dependent upon a friend to upload and download
things for me on a daily basis. I've read with
interest many of the discussions here,
particularly those related to the DIDP and
transparency within ICANN. These are things very
close to my heart and I'm deeply gratified with
what I've been reading and thank so many of you
for your support in these efforts. I look forward
to joining that discussion shortly, at a time when
I can access the internet in real time. I should
assure people that I did get the DIDP
Reconsideration motion submitted on time, thanks
to a dear friend who took my dictation and some
great nurses who allowed it to happen. I write, or
more accurately dictate my thoughts, today on
something unrelated to that topic but one that is
generating much discussion on list: the language
desired for inclusion in ICANN's Bylaws related to
human rights.</div>
<div> </div>
<div>First, the fact we're even having this
discussion here and in the CCWG is due largely to
the determination of one person: Avri Doria. She
forced this discussion through a single minded
bullheaded determination that I continue to be in
awe of. We all owe Avri a great deal for her work
in this area.</div>
<div> </div>
<div>I do want to go on record as supporting Brett's
view, below, that a specific reference to free
expression and the free flow of information is
superior to a generalised reference to human
rights and is to be preferred. I do so for reasons
different than that expressed by Brett and Paul,
though: I believe our objectives for a free and
open internet can better be achieved through
specific reference to free speech and free flow of
information than it can by a reference to a
generalised commitment to human rights.</div>
<div> </div>
<div>My preference is based upon practice and
practicality rather than any deeply
held theoretical construct. One of the defining
characteristics of the NCSG and our policy
positions is that we have been the standard
bearers for those opposed to intellectual property
maximalists within ICANN. It should be noted that
one of the leading advocates within the CCWG for
the shift away from the more narrowly defined
"free expression / free flow" to a more
generalised "human rights" language has been Greg
Shatan, President of the Intellectual Property
Constituency. Greg knows "human rights" provides
the I.P.C. with multiple justifications for the
expansion of i.p. monopolies, be it through the
improper but often attempted use of Article 17 of
the UDHR applying property protections to
intellectual monopolies or through porting the
concept of droit d'auteur from copyright to
trademark law. Governments, some, such as Iran,
which also have written in favour of the broader
standard, may be keen to use "human rights" to
restrict speech they find offensive. There are
those who believe that human rights means
offensive speech, hate speech in European terms,
should be restricted. That might seem reasonable
until one recalls it was governments such as Saudi
Arabia in objections filed during the first round
of the new gtld program that found many proposed
domain lines we would be fine with (.catholic or
.gay, for example) to be offensive.</div>
<div> </div>
<div>Rather than the term "human rights", within
ICANN I prefer the use of specific terms denoting
specific rights. For me, this means free speech,
privacy and due process. Marilia posits that human
rights are indivisible by nature. That presumes
agreement on what exactly constitutes a human
right, something not in evidence either by state
practice or by treaty obligation. The right to
property, for example, is recognised in article 17
of the soft law Universal Declaration but is not
recognised in the hard law of either of the
International Covenants. It's use in regional
conventions tends to be limited and secondary to
other rights, such as that of free expression, in
application. We see a divide here that is often
replicated in the human rights community between
academics, who hold the UDHR in great reverence,
and litigators, who tend to care about the more
binding human rights instruments, used in
context. I have no great desire to argue on
Council, in a Reconsideration or in an IRP what
constitutes a human right. The minute that becomes
the basis of discussion I've lost. It's a bit like
"public interest": a term that has so many
meanings it really lacks any useful meaning in
application and becomes verbiage to be manipulated
rather than respected in practice.</div>
<div> </div>
<div>Due process is already part of the ICANN legal
acquis per the decision of the IRP in ICM v. ICANN
, in which it was decided that by virtue of
paragraph 4 of ICANN's Articles of Incorporation
(not the Bylaws, as has been stated elsewhere)
ICANN has an obligation to follow customary
international law, which does include due process.
Privacy was something that was briefly considered
and rejected by the CCWG. I disagreed with that
decision but am comforted by the fact that ICANN
will have to respect, whether it wants to or not,
the privacy protection offered by the
jurisdictions in which it operates. Certainly not
an ideal situation but workable in a practical
sense.</div>
<div> </div>
<div>If you give me or one of our other Members who
tend to do the Recons and challenges here at ICANN
a commitment to free expression and free flow of
information in the Bylaws it is something we can
easily use, citing precedent, to argue against
ICANN regulating content. If you give us a generic
commitment to human rights, in my view, it is
something that others can use to try to force
ICANN to regulate content and means our first step
in protecting free speech in litigation is to
prove it subsists under the generic human rights
ICANN Bylaws commitment. That is not automatic and
can, and will, be contested by our
opposition. Speech as property, domain names as
property, offensive speech, as determined by
someone, to be restricted....all of these are
dangers of an undefined generalized commitment to
human rights.</div>
<div> </div>
<div>In any event, as mentioned earlier I don't have
real time access to the internet in the hospital
and regrettably am unable to carry on a
conversation as normal on my views herewith. I do
offer them, though, to support the view that the
more specific the terms used in the Bylaws
concerning a commitment to specific human rights
are, the more useful they will be to us and, as
such, I join with Heritage, albeit for different
reasons, in supporting the more succinct and
practical Bylaws language ""to respect the
fundamental human rights of the exercise of free
expression and the free flow of information." In
fact, I'd quite happily delete "fundamental
human" from that statement. I want to note that I
do understand and respect the views of those
holding a different perspective on this matter- I
certainly share your goals - but have a bit of a
different take on how best to achieve increased
respect for human rights in the ICANN context.</div>
<div><br>
</div>
<div>I do not believe there is consensus here to
support the broader generalized "human rights"
language on offer and I hope our NCSG CCWG public
comment reflects same.</div>
<div> </div>
<div>I should also note that paragraph 4 of the
Articles of Incorporation of ICANN already
obligates the Corporation to carry out its
operations "in conformity with relevant principles
of international law and applicable international
conventions",and I read that to already include
relevant human rights conventions. Specifying free
expression and the free flow of information, as
well, in the Bylaws would remove any doubt about
ICANN's commitment in those vital areas and make
it easier to litigate in Recons and IRPs while
still allowing those so inclined to argue for
other general human rights obligations for ICANN
with no less authority than if the generalised
"human rights" term itself is included in the
Bylaws.</div>
<div> </div>
<div>Thanks to everyone doing all of the hard work
and I hope to be with you again as soon as
possible.</div>
<div> </div>
<div>Best,</div>
<div> </div>
<div>Ed</div>
<div> </div>
<hr align="center" size="2" width="100%">
<div><span style="font-family:
tahoma,arial,sans-serif; font-size: 10pt;"><b>From</b>:
"Schaefer, Brett" <<a moz-do-not-send="true"
href="mailto:Brett.Schaefer@HERITAGE.ORG">Brett.Schaefer@HERITAGE.ORG</a>><br>
<b>Sent</b>: Friday, September 4, 2015 7:47 PM<br>
<b>To</b>: <a moz-do-not-send="true"
href="mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU">NCSG-DISCUSS@LISTSERV.SYR.EDU</a><br>
<b>Subject</b>: Re: CCWG comments last call</span>
<div> </div>
That is why we would prefer the alternative option
-- "to respect the fundamental human rights of the
exercise of free expression and the free flow of
information." If that is too narrow, additions
could be suggested, but they should be clearly
defined to avoid confusion and mission creep.<br>
<br>
<br>
<br>
Brett Schaefer<br>
Jay Kingham Senior Research Fellow in
International Regulatory Affairs<br>
Margaret Thatcher Center for Freedom<br>
Davis Institute for National Security and Foreign
Policy<br>
The Heritage Foundation<br>
214 Massachusetts Avenue, NE<br>
Washington, DC 20002<br>
202-608-6097<br>
<a moz-do-not-send="true"
href="http://heritage.org">heritage.org</a><br>
<br>
-----Original Message-----<br>
From: Tamir Israel [<a moz-do-not-send="true"
href="mailto:tisrael@cippic.ca">mailto:tisrael@cippic.ca</a>]<br>
Sent: Friday, September 04, 2015 2:31 PM<br>
To: Schaefer, Brett; <a moz-do-not-send="true"
href="mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU">NCSG-DISCUSS@LISTSERV.SYR.EDU</a><br>
Subject: Re: CCWG comments last call<br>
<br>
On the other hand, we would want ICANN to adhere
to human rights in its own activities/mission. So
it must respect privacy when setting its WHOIS
policies. It must respect free expression when
setting its UDRP framework. It definitely should
adopt domain name registration policies that
enhance accessibility to domain names. So how do
we keep the good obligations while avoiding the
second order ones?<br>
<br>
Best,<br>
Tamir<br>
<br>
On 9/4/2015 2:24 PM, Schaefer, Brett wrote:<br>
> We would be OK with a tightly enumerated set
of human rights, but support of human rights
generically would invite mission creep.<br>
><br>
> “Internationally recognized human rights” or
just human rights is a very broad realm and this
formulation would, even if circumscribed by the
caveat of within the mission for ICANN, be an open
invitation for various ICANN constituencies and
governments to demand that the organization
involve itself in any number of human rights
activates tangentially related to its mission,
e.g. financing expanded broadband and connectivity
consistent with the right to development,
fulfilling the “right to the Internet” that is
being kicked around, or censoring content on the
Internet consistent with the right to be forgotten
or prohibitions on defamation of religion.<br>
><br>
> Regardless of whether these missions are
well-intentioned, they should be outside of the
ICANN remit. But I do not see any realistic
possibility of strict adherence to narrow ICANN
mission holding firm in the face of the political
pressure of pursuing these other human rights if
the bylaws commit ICANN to respect the entire
universe of human rights.<br>
><br>
><br>
><br>
><br>
> Brett Schaefer<br>
> Jay Kingham Senior Research Fellow in
International Regulatory Affairs<br>
> Margaret Thatcher Center for Freedom Davis
Institute for National<br>
> Security and Foreign Policy The Heritage
Foundation<br>
> 214 Massachusetts Avenue, NE<br>
> Washington, DC 20002<br>
> 202-608-6097<br>
> <a moz-do-not-send="true"
href="http://heritage.org">heritage.org</a><br>
><br>
> -----Original Message-----<br>
> From: Mueller, Milton L [<a
moz-do-not-send="true"
href="mailto:milton.mueller@pubpolicy.gatech.edu"><a class="moz-txt-link-freetext" href="mailto:milton.mueller@pubpolicy.gatech.edu">mailto:milton.mueller@pubpolicy.gatech.edu</a></a>]<br>
> Sent: Friday, September 04, 2015 1:45 PM<br>
> To: Paul Rosenzweig; <a
moz-do-not-send="true"
href="mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU"><a class="moz-txt-link-abbreviated" href="mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU">NCSG-DISCUSS@LISTSERV.SYR.EDU</a></a><br>
> Cc: Schaefer, Brett<br>
> Subject: RE: CCWG comments last call<br>
><br>
> Is there any way to word it that would change
your dissent, or is the objection generic?<br>
><br>
>> -----Original Message-----<br>
>> From: Paul Rosenzweig<br>
>> [<a moz-do-not-send="true"
href="mailto:paul.rosenzweig@redbranchconsulting.com">mailto:paul.rosenzweig@redbranchconsulting.com</a>]<br>
>> Sent: Friday, September 4, 2015 1:39 PM<br>
>> To: Mueller, Milton L; <a
moz-do-not-send="true"
href="mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU"><a class="moz-txt-link-abbreviated" href="mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU">NCSG-DISCUSS@LISTSERV.SYR.EDU</a></a><br>
>> Cc: 'Schaefer, Brett'<br>
>> Subject: RE: CCWG comments last call<br>
>><br>
>> Milton/Colleagues<br>
>><br>
>> I think that the draft is quite fine and
for the main I agree with it.<br>
>> Without in any way seeking to relitigate
the issue, however, I know<br>
>> that the human rights language is one
from which Heritage would<br>
>> dissent. Is there some way of generically
making clear that the<br>
>> NCSG comments do not reflect the
agreement of all NCSG members?<br>
>><br>
>> Paul<br>
>><br>
>> Paul Rosenzweig<br>
>> <a moz-do-not-send="true"
href="mailto:paul.rosenzweig@redbranchconsulting.com">paul.rosenzweig@redbranchconsulting.com</a><br>
>> O: +1 (202) 547-0660<br>
>> M: +1 (202) 329-9650<br>
>> VOIP: +1 (202) 738-1739<br>
>> Skype: paul.rosenzweig1066<br>
>> Link to my PGP Key<br>
>><br>
>><br>
>> -----Original Message-----<br>
>> From: Mueller, Milton L [<a
moz-do-not-send="true"
href="mailto:milton.mueller@PUBPOLICY.GATECH.EDU"><a class="moz-txt-link-freetext" href="mailto:milton.mueller@PUBPOLICY.GATECH.EDU">mailto:milton.mueller@PUBPOLICY.GATECH.EDU</a></a>]<br>
>> Sent: Friday, September 4, 2015 12:43 PM<br>
>> To: <a moz-do-not-send="true"
href="mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU">NCSG-DISCUSS@LISTSERV.SYR.EDU</a><br>
>> Subject: CCWG comments last call<br>
>><br>
>> I have made some revisions. We seem to
have rough consensus that we<br>
>> are opposed to the proposed voting
allocations and consider them and<br>
>> two other things serious enough to raise
doubts about whether the<br>
>> CCWG- Accountability proposal enhances
ICANN's accountability. The<br>
>> comments now note that we are not
unanimous on this but do have a<br>
>> preponderance of opinion that would
constitute rough consensus. We<br>
>> all seem to be in agreement about our
discussion of the so-called<br>
>> "freedom to contract" section and the
section on advice from public<br>
>> authorities. We also now seem to have a
way forward on how to handle<br>
>> the HR commitment, though that has only
been floated a few minutes<br>
>> ago so it needs more review.<br>
>><br>
>> In reviewing these comments, please
refrain from the temptation to<br>
>> introduce minor wordsmithing - we really
don't have time for it at<br>
>> this point.<br>
>><br>
>> <a moz-do-not-send="true"
href="https://docs.google.com/document/d/1JGBXO5oOiN_FxivPFkHjz3Gc2w3AT2">https://docs.google.com/document/d/1JGBXO5oOiN_FxivPFkHjz3Gc2w3AT2</a><br>
>> PeJznrXPw2<br>
>> fJ4/edit<br>
>><br>
>> Dr. Milton L Mueller<br>
>> Professor, School of Public Policy<br>
>> Georgia Institute of Technology<br>
<br>
<br>
</div>
</div>
</div>
</div>
</div>
</div>
</div>
</div>
<div><br>
<br>
Sent from my iPhone</div>
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