[PC-NCSG] [NCSG-Discuss] COE Doc open to comments

[Rafik Dammak]

Hi everyone,

Comments were made on the document, can the PC proceed with review and
endorsement?
Thanks,

Rafik
On Sep 18, 2014 5:58 PM, "Gabrielle Guillemin" <gabrielle at article19.org>
wrote:

> Hi all
>
> Hope all is well. Here is an updated version of the comments on the COE
> report for your consideration.
>
>
> https://docs.google.com/document/d/1swluHqQOEC4RZSO38if3qpBlfCDIqXjoaChoYYmrBfo/edit
>
> All best,
>
> Gabrielle
> ________________________________________
> From: NCSG-Discuss [NCSG-DISCUSS at LISTSERV.SYR.EDU] on behalf of Avri
> Doria [avri at ACM.ORG]
> Sent: 10 September 2014 14:52
> To: NCSG-DISCUSS at LISTSERV.SYR.EDU
> Subject: Re: COE Doc open to comments
>
> Hi,
>
> I am currently doing a edit pass though the document.  By and large I
> agree with what it says and have made minor edits and comments.
>
> There is one section I am strongly opposed to:  ICANN Legal Status.
> this reads like an America overall forever clause.  I think that
> becoming an international organization has been studied, is feasible
> and could be done without fear of becoming an IGO.  I think it needs
> to be studied further especially once we have understood the
> parameters for ICANN accountability and NTIA Stewardship.
>
> I am also of two minds concerning the hate speech clause.  I think
> that this also needs further discussion to deal with the tussle among
> rights where the European trade-off falls differently than the US
> trade-off.  I recommend leaving this this out too.
>
> I strongly agree, very strongly agree, with the first objection
> concerning government roles and responsibilities. I think the stmt
> would be stronger standing alone without the debatable clauses being
> included in the doc.
>
> As it stands now, the document does not have my support.
>
> avri
>
>
> On 10-Sep-14 08:37, Robin Gross wrote:
> > Thanks, folks.  I made a few small edits, mostly to tighten up the
> > lingo on the doc.  The statement looks great to me and ready to go.
> > And I warmly thank the statement's drafters and editors!   Well
> > done!
> >
> > Thank you, Robin
> >
> >
> > On Sep 10, 2014, at 3:26 AM, Rafik Dammak wrote:
> >
> >> Hi Niels,
> >>
> >> thanks for asking, Gabrielle were asking for edits and comments
> >> and I think that is partly done. since were are late for
> >> submission NCSG policy committee should proceed swiftly so we can
> >> submit the comment. the comment link
> >>
> https://docs.google.com/document/d/1swluHqQOEC4RZSO38if3qpBlfCDIqXjoaChoYYmrBfo/edit
> >>
> >>
> >>
> >>
> @Joy @Robin @Avri can you please check the document quickly?
> >>
> >> Best,
> >>
> >> Rafik
> >>
> >> 2014-09-10 18:56 GMT+09:00 Niels ten Oever
> >> <lists at digitaldissidents.org>:
> >>
> > Dear Rafik,
> >
> > Has this been submitted?
> >
> > Best,
> >
> > Niels
> >
> > Niels ten Oever Head of Digital
> >
> > Article 19 www.article19.org
> >
> > PGP fingerprint = 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D
> > 68E9
> >
> > On 08/29/2014 05:26 PM, Rafik Dammak wrote:
> >>>>> Hi Gabrielle,
> >>>>>
> >>>>> thank you very much for this effort, that is coming at
> >>>>> perfect time just before IGF and the session there
> >>>>> organized by council of europe about the report (Details
> >>>>> shared by Bill few days ago)
> >>>>>
> >>>>> Best,
> >>>>>
> >>>>> Rafik
> >>>>>
> >>>>> 2014-08-29 23:02 GMT+09:00 Gabrielle Guillemin
> >>>>> <gabrielle at article19.org>:
> >>>>>
> >>>>>> Hi all
> >>>>>>
> >>>>>> Hope all is well. Just a quick note to say that I had a
> >>>>>> go at summarising the various comments that have been
> >>>>>> made by various NCSG members about the COE report on
> >>>>>> human rights. Here is a draft:
> >>>>>>
> >>>>>>
> >>>>>>
> >
> https://docs.google.com/document/d/1swluHqQOEC4RZSO38if3qpBlfCDIqXjoaChoYYmrBfo/edit
> >>>>>>
> >>>>>>
> >>>>>>
> >
> >
> Your comments / edits are welcome. Let me know if there is anything else I
> >>>>>> can do to help.
> >>>>>>
> >>>>>> All the best,
> >>>>>>
> >>>>>> Gabrielle
> >>>>>>
> >>>>>>
> >>>>>>
> >>>>>> -----Original Message----- From: joy [mailto:joy at apc.org]
> >>>>>> Sent: 29 July 2014 21:56 To: Gabrielle Guillemin;
> >>>>>> NCSG-DISCUSS at LISTSERV.SYR.EDU Subject: Re: COE Doc open
> >>>>>> to comments
> >>>>>>
> >>>>>> Hi all - just a note to advise that I checked with Lee
> >>>>>> Hibbard at Council of Europe on the deadline for
> >>>>>> comments. He's noted they are aiming for a compilation of
> >>>>>> comments by 8 September. We should try to finalise sooner
> >>>>>> if we can, though, and I'll aim to take another look at
> >>>>>> the shared document later this week. Cheers Joy On
> >>>>>> 25/07/2014 8:34 a.m., joy wrote:
> >>>>>>> Thanks so much Gabrielle I am not actually sure when
> >>>>>>> the comments are due - but will check. Regards Joy On
> >>>>>>> 23/07/2014 10:40 p.m., Gabrielle Guillemin wrote:
> >>>>>>>> Hi all
> >>>>>>>>
> >>>>>>>> Hope all is well. Thanks very much for all the
> >>>>>>>> comments on the COE
> >>>>>> document. As Marilia said, I'd be happy to contribute too
> >>>>>> but I won't be able to do so until mid-/late August.
> >>>>>>>>
> >>>>>>>> In the meantime, I thought it might help to get us
> >>>>>>>> going if we have a
> >>>>>> document that others can start working on based on
> >>>>>> comments already received, so here is a link to a
> >>>>>> googledoc where I have just reproduced Ed, Joy and
> >>>>>> Milton's contributions.
> >>>>>>>>
> >>>>>>>>
> https://docs.google.com/document/d/1swluHqQOEC4RZSO38if3qpBlfCDIqXjoa
> >>>>>>>>
> >>>>>>>>
> >
> >>>>>>>>
> ChoYYmrBfo/edit?usp=sharing
> >>>>>>>>
> >>>>>>>> Do get in touch if there are any technical problems
> >>>>>>>> with the document.
> >>>>>>>>
> >>>>>>>> Hope that helps.
> >>>>>>>>
> >>>>>>>> All best,
> >>>>>>>>
> >>>>>>>> Gabrielle ________________________________________
> >>>>>>>> From: NCSG-Discuss [NCSG-DISCUSS at LISTSERV.SYR.EDU] on
> >>>>>>>> behalf of joy [joy at APC.ORG] Sent: 22 July 2014 22:03
> >>>>>>>> To: NCSG-DISCUSS at LISTSERV.SYR.EDU Subject: Re: COE
> >>>>>>>> Doc open to comments
> >>>>>>>>
> >>>>>>>> Hi Ed - thanks so much for this additional work
> >>>>>>>> through of the document in detail - that is extremely
> >>>>>>>> helpful! Shall we start a shared document and begin
> >>>>>>>> building the submission based on these and
> >>>>>> other inputs?
> >>>>>>>> anyone else have time to comment? We should try and
> >>>>>>>> develop a response soon .. also, i am still mulling
> >>>>>>>> over your points, Ed, but a few responses below ....
> >>>>>>>> thanks again! Joy
> >>>>>>>>
> >>>>>>>> On 21/07/2014 10:44 a.m., Edward Morris wrote:
> >>>>>>>>> Thanks to Joy for her usual comprehensive and
> >>>>>>>>> erudite analysis. A few things I?d like to offer
> >>>>>>>>> for consideration, in response both to Joy?s post
> >>>>>>>>> and to the CoE document itself:
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>> 1.  Ordinarily I would be strongly supportive of
> >>>>>>>>> Joy?s recommendation that ICANN be prodded to join
> >>>>>>>>> the Global Network Initiative (GNI). I probably
> >>>>>>>>> still am. However, I?m a bit concerned about the
> >>>>>>>>> resignation of the Electronic Frontiers Foundation
> >>>>>>>>> (EFF)
> >>>>>> from the GNI in October of last year.
> >>>>>>>>> Before proceeding with a recommendation that ICANN
> >>>>>>>>> join the GNI, I?d suggest that we reach out to our
> >>>>>>>>> EFF members and determine their views on the
> >>>>>>>>> matter, given the action of their parent
> >>>>>>>>> organization.
> >>>>>>>>>
> >>>>>>>> That's a great idea - would you like to do that? I
> >>>>>>>> can also ask Katitza Rodriguez
> >>>>>>>>> 2. Lee, Monika and Thomas should be thanked both
> >>>>>>>>> for their work on this report and for the overall
> >>>>>>>>> effort of the CoE in promoting the inclusion of
> >>>>>>>>> human rights considerations within internet
> >>>>>>>>> governance generally, and within ICANN
> >>>>>>>>> specifically. There is a lot of good in this
> >>>>>>>>> report. I want to particularly commend the authors
> >>>>>>>>> on recognizing that domain names such as .sucks
> >>>>>>>>> ?ordinarily come within the scope of protection
> >>>>>>>>> offered by the right of freedom of
> >>>>>> expression?(?117).
> >>>>>>>>>
> >>>>>>>> +1
> >>>>>>>>> 3. I agree with the author?s suggestion that a
> >>>>>>>>> human rights advisory panel be created within ICANN
> >>>>>>>>> (?134). NCSG member Roy Balleste has done some
> >>>>>>>>> excellent work in this area and I?d suggest he be
> >>>>>>>>> consulted as to whether the specific composition of
> >>>>>>>>> the panel suggested in this report is an optimal
> >>>>>>>>> one.
> >>>>>>>> Great - I'd love to see this - also we did an NCUC
> >>>>>>>> submission about 18months ago on human rights and
> >>>>>>>> ICANN - it's still relevant imho.
> >>>>>>>>> 4. The authors incorrectly suggest that the GAC is
> >>>>>>>>> the ?sole voice of human rights? within ICANN
> >>>>>>>>> (?125). We should politely remind the Council of
> >>>>>>>>> Europe that the leading voice for human rights
> >>>>>>>>> within ICANN has never been GAC but rather has been
> >>>>>>>>> the NCSG, it?s predecessor, and it?s member
> >>>>>>>>> constituencies.
> >>>>>>>>>
> >>>>>>>> quite right - it might be the sole voice for
> >>>>>>>> governments, but certainly not for human rights!
> >>>>>>>>> 5. The authors may be partially correct in stating
> >>>>>>>>> the American Bill of Rights do not apply to ICANN
> >>>>>>>>> (?9). As a corporation, it is likely that ICANN is
> >>>>>>>>> not obligated to follow the precepts of the Bill of
> >>>>>>>>> Rights in it?s relationships with others. I say
> >>>>>>>>> likely, because if ICANN were construed by the
> >>>>>>>>> courts to be a U.S. government contractor, which in
> >>>>>>>>> some ways it currently is, ICANN could be construed
> >>>>>>>>> as participating in state action and then would be
> >>>>>>>>> obligated to act as if it were a state actor vis a
> >>>>>>>>> vis third parties. In this case, the Bill of Rights
> >>>>>>>>> would apply to ICANN in its
> >>>>>> relationship with others.
> >>>>>>>>>
> >>>>>>>>> I think it is also important to note that under
> >>>>>>>>> American law ICANN is considered a person, albeit a
> >>>>>>>>> non-natural person, and does benefit from the
> >>>>>>>>> protections offered by Bill of Rights. It is bound
> >>>>>>>>> to the Bill of Rights in this way. Further, ICANN
> >>>>>>>>> is also protected from government interference
> >>>>>>>>> through the Declaration of Rights of the
> >>>>>>>>> Constitution of the State of California (article
> >>>>>>>>> 1), one of the most comprehensive statutory grants
> >>>>>>>>> of rights that exist in the world. These are
> >>>>>>>>> important considerations as we debate the future
> >>>>>> legal status and location of ICANN corporate.
> >>>>>>>> at the risk of stirring the constitutional law
> >>>>>>>> dragons, i think a key question is also how the
> >>>>>>>> international obligations of the US goverment relate
> >>>>>>>> to a corporation such as ICANN
> >>>>>>>>> 6. The suggestion that a legal model other than
> >>>>>>>>> trademark law be considered to ?address speech
> >>>>>>>>> rights? (?117) is welcome, with the caveat that any
> >>>>>>>>> such model must expand freedom of expression and
> >>>>>>>>> not further restrict it. As bad as the trademark
> >>>>>>>>> maximalist model we now have is, there are many
> >>>>>>>>> legal models far more dangerous for ICANN to
> >>>>>>>>> adhere to, and open-ended recommendations in this
> >>>>>>>>> regard should best be avoided lest they be used by
> >>>>>>>>> those favoring a more restrictive
> >>>>>> speech model.
> >>>>>>>> hhmmm - maybe we could toss around some more ideas
> >>>>>>>> here ... via the shared doc?
> >>>>>>>>> 7. The authors recognize the difficulty defining
> >>>>>>>>> and actualizing in policy the term ?public
> >>>>>>>>> interest? (?115). As they acknowledge, it is a
> >>>>>>>>> vague term ?providing neither guidance nor
> >>>>>>>>> constraint on ICANN?s
> >>>>>> actions?
> >>>>>>>>> (?115). They then suggest we need to ?flesh out
> >>>>>>>>> the concept? of global public interest to
> >>>>>>>>> strengthen accountability and transparency within
> >>>>>>>>> ICANN (?115).
> >>>>>>>>>
> >>>>>>>>> I?d suggest we move away from use of the term
> >>>>>>>>> ?public interest? in all regards, as it?s imprecise
> >>>>>>>>> definition leads to more problems than it solves.
> >>>>>>>>> I?m particularly nonplused by the positioning of
> >>>>>>>>> the concepts of accountability and transparency as
> >>>>>>>>> a seeming subset of
> >>>>>> ?public interest?
> >>>>>>>>> (115).
> >>>>>>>>>
> >>>>>>>>> Accountability and transparency are practices ICANN
> >>>>>>>>> needs to embrace regardless of the ?public
> >>>>>>>>> interest?, whatever it is. These twin concepts
> >>>>>>>>> strengthen both the ICANN community and ICANN
> >>>>>>>>> corporate. An attitude that transparency and
> >>>>>>>>> accountability are something that must be done to
> >>>>>>>>> strengthen ICANN externally (e.g. in the public
> >>>>>>>>> interest) should be rejected in favor of an
> >>>>>>>>> acknowledgement that such processes strengthen
> >>>>>>>>> ICANN internally.
> >>>>>>>>>
> >>>>>>>>> Any benefit to the nebulous ?public interest? is
> >>>>>>>>> welcome, but the principle reason for ICANN to
> >>>>>>>>> conduct it?s affairs in a transparent and
> >>>>>>>>> accountable manner is that it strengthens both
> >>>>>>>>> ICANN the institution and ICANN the community.  It
> >>>>>>>>> is self-interest, not public interest, which should
> >>>>>>>>> drive ICANN to function in a manner as transparent
> >>>>>>>>> and accountable as possible.
> >>>>>>>>>
> >>>>>>>>> We need to reject any suggestion that
> >>>>>>>>> accountability and transparency are dependent
> >>>>>>>>> variables subject to whatever it is that ?public
> >>>>>>>>> interest? is determined to be. They stand on their
> >>>>>>>>> own.
> >>>>>>>>>
> >>>>>>>> I do think ICANN should be as transparent and
> >>>>>>>> accountable as possible and I agree that transparency
> >>>>>>>> and accountability should not be dependent variables,
> >>>>>>>> but I don't have the same negative reaction to
> >>>>>>>> "public interest" - on the contrary, I find it a
> >>>>>>>> useful concept, especially in administrative law as a
> >>>>>>>> way to counter the power imbalances between private
> >>>>>>>> interests and those of the wider communit(ies) which
> >>>>>>>> States have obligations to protect - also because the
> >>>>>>>> notion of public law and State obligations in the
> >>>>>>>> public arena is a core component of the international
> >>>>>>>> human rights framework (which distinguishes between
> >>>>>>>> public and private law for example). So I would not
> >>>>>>>> want to negate it in the context of responding to the
> >>>>>>>> CoE paper nor in thinking through how this is
> >>>>>>>> relevant to ICANN.
> >>>>>>>>
> >>>>>>>>> 8. I am concerned about the attempt of the authors
> >>>>>>>>> to position ?hate speech? as an accepted derogation
> >>>>>>>>> from free expression norms. This is not something
> >>>>>>>>> that is generally accepted in the human rights
> >>>>>>>>> community, but rather is a controversial notion
> >>>>>>>>> that provokes rather heated and emotional
> >>>>>>>>> argumentation amongst erstwhile allies.
> >>>>>>>>>
> >>>>>>>>> We need to reject any notion that ICANN, in the
> >>>>>>>>> guise of obeying human rights norms, should police
> >>>>>>>>> speech or in any way deny domain name applications
> >>>>>>>>> because they may run afoul of ?hate speech?
> >>>>>> principles.
> >>>>>>>>> This is in keeping with the longstanding tradition
> >>>>>>>>> of this SG to oppose efforts of ICANN to regulate
> >>>>>>>>> content or speech.
> >>>>>>>>>
> >>>>>>>>> My personal view is that hate speech laws are not
> >>>>>>>>> justifiable in any society or institution with any
> >>>>>>>>> sort of serious commitment to the principles of
> >>>>>>>>> free speech. I know that there are many within our
> >>>>>>>>> SG supportive of my views in this regard; I suspect
> >>>>>>>>> there may be members that differ. Regardless of
> >>>>>>>>> specific views on the issue, I hope we can all
> >>>>>>>>> agree that ICANN is not the institution that should
> >>>>>>>>> be determining what ?hate speech? is and then
> >>>>>>>>> enforcing its
> >>>>>> determination.
> >>>>>>>>>
> >>>>>>>>> The authors acknowledge that ?despite its frequent
> >>>>>>>>> use, there is no clear or unique understanding of
> >>>>>>>>> what is ?hate speech?, and the definitions and
> >>>>>>>>> conceptions vary in different countries? (?45).
> >>>>>>>>> They then recognize that the European Court of
> >>>>>>>>> Human Rights has not defined the term in order that
> >>>>>>>>> it?s reasoning, ?is not confined within definitions
> >>>>>>>>> that could limit its action in future cases?(?46).
> >>>>>>>>> Given the complexity of the issues, the authors
> >>>>>>>>> suggest that ICANN needs to regularly consult with
> >>>>>>>>> the Council of Europe (?46). I?d suggest that ICANN
> >>>>>>>>> should only do so if the same opportunity is given
> >>>>>>>>> to intergovernmental organizations from all the
> >>>>>> world?s regions. Europe should not receive special
> >>>>>> consideration.
> >>>>>>>>>
> >>>>>>>>> The authors should be credited with attempting to
> >>>>>>>>> create unity out of the plurality of opinions and
> >>>>>>>>> views relating to the proposed hate speech
> >>>>>>>>> derogation from the universally recognized right of
> >>>>>>>>> free expression. Upon close scrutiny, though, they
> >>>>>>>>> cannot be said to have
> >>>>>> accomplished their goal.
> >>>>>>>>> Take, for example, their references to Article two
> >>>>>>>>> of the Additional Protocol to the Budapest
> >>>>>>>>> Convention on Cybercrime, as they attempted to
> >>>>>>>>> define some portion of ?hate crime?.
> >>>>>>>>>
> >>>>>>>>> The Additional Protocol cannot be considered part
> >>>>>>>>> of the universal human rights acquis. The numbers
> >>>>>>>>> are pretty stark: Of the seventeen non Council of
> >>>>>>>>> Europe signatories to the Cybercrime Convention
> >>>>>>>>> only two have ratified the Additional Protocol. Of
> >>>>>>>>> even greater significance, of the forty-seven
> >>>>>>>>> members of the Council of Europe only twenty have
> >>>>>>>>> signed the Additional Protocol (?45).
> >>>>>>>>>
> >>>>>>>>> Rather than demonstrating acceptance of the ?hate
> >>>>>>>>> speech? derogation, the lack of ratification of the
> >>>>>>>>> Additional Protocol suggests severe reservations
> >>>>>>>>> about the concept. Certainly the proposed
> >>>>>>>>> definition is suspect. This is true even in Europe,
> >>>>>>>>> the area of the world where the hate speech
> >>>>>>>>> derogation appears to have its greatest popularity,
> >>>>>>>>> and within the Council of Europe itself.
> >>>>>>>>>
> >>>>>>>>> Despite this, while recognizing there should be a
> >>>>>>>>> ?balancing? test, the authors recommend that ICANN
> >>>>>>>>> ?should ensure that ?hate speech? is not tolerated
> >>>>>>>>> in the applied-for gTlds? (?60).
> >>>>>>>>>
> >>>>>>>>> We need to vociferously oppose this
> >>>>>>>>> recommendation.
> >>>>>>>>>
> >>>>>>>>> ICANN should not be in the business of regulating
> >>>>>>>>> speech. It certainly should not be in the business
> >>>>>>>>> of deciding what is or is not hate speech, a
> >>>>>>>>> concept with limited international acceptance and a
> >>>>>>>>> variable definition, and then prohibiting it.
> >>>>>>>>>
> >>>>>>>>> We cannot and should not accept any proposal that
> >>>>>>>>> puts ICANN in the position of being a censor. This
> >>>>>>>>> particular recommendation within this Council Of
> >>>>>>>>> Europe report does just that and needs to be
> >>>>>>>>> rejected.
> >>>>>>>> The debate on hate speech also has a strong feminist
> >>>>>>>> critique, some of which supports your arguments, some
> >>>>>>>> of which does not - we could talk more offlist about
> >>>>>>>> it. I agree on the 'ICANN not being a censor' point,
> >>>>>>>> but this begs the question of how should human
> >>>>>>>> rights, ALL rights, be balanced in the
> >>>>>>>> decision-making - on this I would point back to the
> >>>>>>>> need for a rigorous policy making process (getting
> >>>>>>>> the rights arguments looked at there and getting GAC
> >>>>>>>> members involved in that process, which is one of our
> >>>>>>>> longstanding SG positions). maybe there are other
> >>>>>>>> ideas here as well ...
> >>>>>>>>> 9. In the strongest terms possible I oppose any
> >>>>>>>>> suggestion of giving ICANN ?international or
> >>>>>>>>> quasi-international status? (?136) and I hope
> >>>>>>>>> others will join me, as an SG and individually, in
> >>>>>>>>> this
> >>>>>> opposition.
> >>>>>>>>>
> >>>>>>>>> Joy ?shudders?? at the authors suggestion that the
> >>>>>>>>> international legal status of the Red Cross / Red
> >>>>>>>>> Crescent societies should serve as a ?source of
> >>>>>>>>> inspiration? for ICANN?s future organizational
> >>>>>>>>> legal position (?137). I shudder with her. Joy then
> >>>>>>>>> suggests that the ILO might ?be a better model?. It
> >>>>>>>>> might be, but if ICANN received a status similar to
> >>>>>>>>> that of the ILO I respectfully suggest that shudder
> >>>>>>>>> rather than support would still be an appropriate
> >>>>>>>>> response.
> >>>>>>>> actually I am not suggesting ILO as a model, i was
> >>>>>>>> simply surprised that the CoE paper did not even
> >>>>>>>> mention it - I know some governments are looking at
> >>>>>>>> the ILO becuase it is tri-partite (government,
> >>>>>>>> employers and worker representation) - and therefore
> >>>>>>>> using it to try and persuade other governments that
> >>>>>>>> other multi-stakeholder options do exist
> >>>>>>>> internationally
> >>>>>>>>> With international legal status come a set of
> >>>>>>>>> privileges and legal immunities. The ILO is
> >>>>>>>>> actually a pretty good place to see what these
> >>>>>>>>> entail. As a specialized agency of the United
> >>>>>>>>> Nations the ILO benefits from the 1947 Convention
> >>>>>>>>> on Privileges and Immunities which grants, amongst
> >>>>>>>>> other benefits:
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>> 1. Immunity from legal process for the organization
> >>>>>>>>> and for its officials in its official acts, with
> >>>>>>>>> even greater immunity for executive officials,
> >>>>>>>>>
> >>>>>>>>> 2. The inviolability of the organizations physical
> >>>>>>>>> premises, assets and archives as well as special
> >>>>>>>>> protection for its communications,
> >>>>>>>>>
> >>>>>>>>> 3. Restriction from financial controls,
> >>>>>>>>>
> >>>>>>>>> 4. Exemption from taxation of the organization and
> >>>>>>>>> its employees,
> >>>>>>>>>
> >>>>>>>>> 5. Certain privileges similar to that given
> >>>>>>>>> diplomats for those attending organizational
> >>>>>>>>> meetings.
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>> The Red Cross receives similar privileges. The
> >>>>>>>>> agreement between the ICRC and the Swiss Federal
> >>>>>>>>> Council mandates that the Red Cross receives,
> >>>>>>>>> amongst other benefits:
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>> 1. Immunity from legal process and prosecution.
> >>>>>>>>> This immunity extends to both the organization and
> >>>>>>>>> to officials and continues with respect to
> >>>>>>>>> officials even after they leave office,
> >>>>>>>>>
> >>>>>>>>> 2.  Inviolability of its premises and archives,
> >>>>>>>>>
> >>>>>>>>> 3. Exemption from taxation,
> >>>>>>>>>
> >>>>>>>>> 4. Special customs privileges,
> >>>>>>>>>
> >>>>>>>>> 5. Special protection for its communications.
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>> It is easy to see why ICANN staff would be excited
> >>>>>>>>> about proposals to give it international status. It
> >>>>>>>>> is less easy to understand why anyone who is not a
> >>>>>>>>> member of the ICANN staff thinks that this is a
> >>>>>> good idea.
> >>>>>>>>>
> >>>>>>>>> In justifying its support for granting ICANN
> >>>>>>>>> international legal status the authors write,
> >>>>>>>>> ?ICANN should be free from risk of dominance by
> >>>>>>>>> states, other stakeholders, or even its own staff?
> >>>>>>>>> (?136). I agree with the principle but fail to see
> >>>>>>>>> how granting ICANN international legal status does
> >>>>>>>>> anything but further entrench the growing hegemony
> >>>>>>>>> of ICANN staff, making their actions less
> >>>>>> transparent and less accountable.
> >>>>>>>> well, i don;t disagree there :)
> >>>>>>>>> As currently constituted, the three sources of
> >>>>>>>>> definite external accountability for ICANN are 1)
> >>>>>>>>> the NTIA, 2) the attorney general of the State of
> >>>>>>>>> California (AG) and the 3) courts, principally
> >>>>>>>>> those located in California. As the NTIA withdraws
> >>>>>>>>> from oversight the two remaining sources of
> >>>>>>>>> external control over ICANN are the AG and the
> >>>>>>>>> courts. Should this CoE proposal for international
> >>>>>>>>> status be accepted, in lieu of other changes, there
> >>>>>>>>> will be no external control over ICANN. We cannot
> >>>>>>>>> support this proposition.
> >>>>>>>>>
> >>>>>>>>> I believe ICANN is already properly structured as
> >>>>>>>>> a private, not for profit corporation. The authors
> >>>>>>>>> inadvertently recognize benefits that accrue to
> >>>>>>>>> this structure. In stating that ICANN has
> >>>>>>>>> ?flexibly? met the ?changing needs of the
> >>>>>>>>> internet?(?1) the authors implicitly recognize a
> >>>>>>>>> value associated more with private corporations
> >>>>>>>>> than with those institutions accorded international
> >>>>>>>>> status. In using the .XXX decision as an example
> >>>>>>>>> where the values of free expression trumped
> >>>>>>>>> community and corporate objections (?57), it should
> >>>>>>>>> be noted that some observers, myself included,
> >>>>>>>>> believe the Board?s decision in this matter was
> >>>>>>>>> caused by fear of losing a lawsuit threatened by
> >>>>>>>>> ICM Registry. Immunity from legal process
> >>>>>>>>> eliminates this control
> >>>>>> mechanism.
> >>>>>>>>>
> >>>>>>>>> To support corporate structure does not necessarily
> >>>>>>>>> mean supporting ICANN?s continued corporate
> >>>>>>>>> residence in California. I reject the notion,
> >>>>>>>>> though, that leaving California necessarily would
> >>>>>>>>> make things better from the perspective of civil
> >>>>>>>>> society or of the individual user. It would depend
> >>>>>>>>> upon the legal structure of the
> >>>>>> receiving jurisdiction.
> >>>>>>>>>
> >>>>>>>>> As long as ICANN is situated in California there is
> >>>>>>>>> a corporate reorganization that would better help
> >>>>>>>>> ICANN meet the goals enunciated by the CoE authors:
> >>>>>>>>> the cration of membership within ICANN.
> >>>>>>>>>
> >>>>>>>>> Changing ICANN?s corporate structure from that of
> >>>>>>>>> a California public benefit corporation without
> >>>>>>>>> members to that of a California public benefits
> >>>>>>>>> corporation with members, per ?5310 - ?5313 of the
> >>>>>>>>> California Corporations Code, would do a far better
> >>>>>>>>> job of creating a truly responsive and democratic
> >>>>>>>>> ICANN than granting ICANN international status
> >>>>>>>>> would. A more comprehensive discussion of this
> >>>>>>>>> concept can be found in my 27 June post on
> >>>>>>>>> Accountability elsewhere on
> >>>>>> this list.
> >>>>>>>> thanks Ed - I'll take a look
> >>>>>>>>> I would also suggest that creating a special
> >>>>>>>>> international legal status for ICANN would somewhat
> >>>>>>>>> entrench the organization, and not in a good way.
> >>>>>>>>> None of us know what the communications landscape
> >>>>>>>>> will
> >>>>>> look like in a decade.
> >>>>>>>>> There is certainly the possibility that block
> >>>>>>>>> chain technology, or technologies not yet dreamt
> >>>>>>>>> of, will obviate the need for a central naming and
> >>>>>>>>> addressing authority. It is reasonable to think
> >>>>>>>>> that an entity with international legal status
> >>>>>>>>> would be more likely to try to cling to it?s
> >>>>>>>>> ossified technology than would a private
> >>>>>>>>> corporation responsive to its members.
> >>>>>>>>>
> >>>>>>>>> Thanks for considering my comments. Hopefully they
> >>>>>>>>> will provide a further basis for discussion.
> >>>>>>>>>
> >>>>>>>> Indeed !
> >>>>>>>>> Best,
> >>>>>>>>>
> >>>>>>>>> Ed ?
> >>>>>>>>>
> >>>>>>>>> -----Original Message----- From: joy <joy at APC.ORG>
> >>>>>>>>> To: NCSG-DISCUSS at LISTSERV.SYR.EDU Date: Fri, 18 Jul
> >>>>>>>>> 2014 20:31:04 +1200 Subject: Re: COE Doc open to
> >>>>>>>>> comments
> >>>>>>>>>
> >>>>>>>>> Hi Marilia - definitely - here are my preliminary
> >>>>>>>>> thoughts after some discussion in APC
> >>>>>>>>>
> >>>>>>>>> I think the paper is very interesting and basically
> >>>>>>>>> saying that ICANN (including GAC) is not fulfilling
> >>>>>>>>> human rights obligations and that private sector,
> >>>>>>>>> intellectual property and and law enforcement
> >>>>>>>>> interests have been weighed too heavily in the
> >>>>>>>>> balance of decision-making to the detriment of
> >>>>>>>>> human rights and other stakeholders, including
> >>>>>>>>> vulnerable groups. These are all valid (if not
> >>>>>>>>> entirely new) points - some reflections for working
> >>>>>>>>> up to a possible submission: + I think this paper
> >>>>>>>>> is evidence that discourse is moving beyond
> >>>>>> "whether"
> >>>>>>>>> human rights apply to ICANN public policy making
> >>>>>>>>> (the previous paper I contributed to) and more
> >>>>>>>>> specifically into "how" in a very practical way -
> >>>>>>>>> that is excellent and should be welcomed - the
> >>>>>>>>> clear link to human rights in NETMundial and
> >>>>>>>>> related documents seems to be tipping the human
> >>>>>>>>> rights discussion - that is also really positive +
> >>>>>>>>> the use of case studies to look at how HR apply in
> >>>>>>>>> specific ICANN + policy areas is good, showing up
> >>>>>>>>> deficiencies in both the standards and processes
> >>>>>>>>> ICANN is using - The paper does mention social and
> >>>>>>>>> cultural rights but only in passing in relation to
> >>>>>>>>> the community application dotgay, so I think this
> >>>>>>>>> makes our own work on ICANN and cultural rights
> >>>>>>>>> timely and this CoE paper will be useful for it. +
> >>>>>>>>> several parts of the analysis and of the
> >>>>>>>>> recommendations were + already made by the Non
> >>>>>>>>> Commercial Users Constituency in a submission
> >>>>>>>>> developed in 2013 (one
> >>>>>>>>>
> >>>>>>>>> that we worked on and which NCUC submitted to ICANN
> >>>>>>>>> on human rights and new gTLDs) - but I do not see
> >>>>>>>>> that paper cited - we should point out this
> >>>>>>>>> connection in making comments + clearly governments
> >>>>>>>>> are reaching for the human rights framework to
> >>>>>>>>> challenge the behaviour of other governments (as in
> >>>>>>>>> relation the law enforcement and the registrar
> >>>>>>>>> accreditation agreement) - so while the paper is
> >>>>>>>>> directed  at ICANN, it is also squarely directed
> >>>>>>>>> between and among governments - it suggests there
> >>>>>>>>> is a lot of discussion going on behind GAC's closed
> >>>>>>>>> doors on this.... I really like the references to
> >>>>>>>>> the UN resolutions internet rights - it is good to
> >>>>>>>>> see this jurisprudence emerging. + there is
> >>>>>>>>> inadequate focus on how the HR framework applies to
> >>>>>>>>> + business - not just business interests in ICANN
> >>>>>>>>> stakeholders, but also the contracted parties, such
> >>>>>>>>> as registrars and ICANN's role as a regulator  -
> >>>>>>>>> Anriette raised these points and I think we need to
> >>>>>>>>> think through how to respond on this - especially
> >>>>>>>>> on the human rights and business rules that were
> >>>>>>>>> developed in the UN + the analysis and
> >>>>>>>>> recommendations on community applications is very
> >>>>>>>>> + useful and I strongly support this aspect + the
> >>>>>>>>> paper recommends reconsideration of ICANN's legal
> >>>>>>>>> basis to + include human rights in its bylaws -
> >>>>>>>>> that is good - but they should also become a member
> >>>>>>>>> of the GNI: Rafik Dammak and others have been
> >>>>>>>>> calling for this for 2 yrs but ICANN board has
> >>>>>>>>> actively opposed that step. so we can raise that +
> >>>>>>>>> also recommends looking at the Red Cross as
> >>>>>>>>> possible inspiration + for a model - that made me
> >>>>>>>>> shudder give how the RC has behaved in policy
> >>>>>>>>> making in
> >>>>>> ICANN.
> >>>>>>>>> A better model might be the ILO - but we must
> >>>>>>>>> respond on that specific
> >>>>>> point.
> >>>>>>>>> + finally, perhaps one of the more thorny and
> >>>>>>>>> challenging issues is + trying to define the public
> >>>>>>>>> interest aspects of ICANN's role and also GAC's
> >>>>>>>>> responsibilities - i think it's useful to raise
> >>>>>>>>> this again and try to squarely address it and there
> >>>>>>>>> are some options (the paper recommends an expert
> >>>>>>>>> advisory group) - NCUC recommended a human rights
> >>>>>>>>> impact assessment of policy proposals - i think we
> >>>>>>>>> could also revive that idea.....
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>> Joy
> >>>>>>>>>
> >>>>>>>>> On 18/07/2014 1:01 a.m., Marilia Maciel wrote: Hi
> >>>>>>>>> all, Gabrielle from Article 19, myself and a few
> >>>>>>>>> others volunteered to work on a draft contribution
> >>>>>>>>> with comments and suggestions about CoE document.
> >>>>>>>>> Joy, your involvement is super important. Shall we
> >>>>>>>>> start to get it going? Best, Mar?lia
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>> On Tue, Jul 8, 2014 at 4:41 AM, joy <joy at apc.org>
> >>>>>>>>> wrote:
> >>>>>>>>>
> >>>>>>>>> Hi Bill - what a good idea to suggest a comment
> >>>>>>>>> period- and great that they took it up. And a
> >>>>>>>>> follow up event in LA would be excellent - I am
> >>>>>>>>> sure APC would want to support it. I do hope it
> >>>>>>>>> hasn't killed Thomas' chances completely! Joy
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>> On 8/07/2014 6:41 p.m., William Drake wrote: Hi
> >>>>>>>>> Joy
> >>>>>>>>>
> >>>>>>>>> I?m glad Lee did this, as it?s not COE?s normal
> >>>>>>>>> procedure at all. We suggested they try it at our
> >>>>>>>>> meeting with them in London.  We also agreed to
> >>>>>>>>> propose a follow up event for LA.  It?d be good to
> >>>>>>>>> have our own position on paper prior. Since the
> >>>>>>>>> paper may have screwed Thomas? campaign for GAC
> >>>>>>>>> chair he should have more time in LA :-( Cheers
> >>>>>>>>>
> >>>>>>>>> Bill
> >>>>>>>>>
> >>>>>>>>> On Jul 8, 2014, at 6:21 AM, joy <joy at APC.ORG>
> >>>>>>>>> wrote:
> >>>>>>>>>
> >>>>>>>>> Hi Avri - thanks for sending the link through -
> >>>>>>>>> sorry it has taken me a while to get back on this,
> >>>>>>>>> I've been away from the office a while and it's
> >>>>>>>>> taken a while to catch up .... Thanks also Milton
> >>>>>>>>> for your blog post about the paper - I agree with
> >>>>>>>>> most of your comments. There are quite a few
> >>>>>>>>> recommendations in the paper - was there any
> >>>>>>>>> discussion at the ICANN 50 meeting about an NCSG
> >>>>>>>>> response? I note that some of the points and
> >>>>>>>>> recommendations in the paper were previously
> >>>>>>>>> covered in a submission by NCUC on new gTLDs in
> >>>>>>>>> 2013 and it would be worth connecting to that work
> >>>>>>>>> in any follow up (which I am happy to volunteer to
> >>>>>>>>> help with). Cheers Joy
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>> On 7/07/2014 3:51 a.m., Avri Doria wrote: Hi,
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>> Council of Europe triggers debate on ICANN & Human
> >>>>>>>>> Rights
> >>>>>>>>>
> >>>>>>>>>
> http://www.coe.int/t/informationsociety/icann-and-human-rights.asp
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>>
> >
> >>>>>>>>>
> Is on line and open to comments.
> >>>>>>>>>
> >>>>>>>>> avri
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>> ***********************************************
> >>>>>>>>> William J. Drake International Fellow & Lecturer
> >>>>>>>>> Media Change & Innovation Division, IPMZ University
> >>>>>>>>> of Zurich, Switzerland Chair, Noncommercial Users
> >>>>>>>>> Constituency, ICANN, www.ncuc.org
> >>>>>>>>> william.drake at uzh.ch (direct), wjdrake at gmail.com
> >>>>>>>>> (lists), www.williamdrake.org
> >>>>>>>>> ***********************************************
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>
> >>>>>>
> >>>>>>
> >>>>>
> >>>
> >
>
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