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

[Marilia Maciel]

Thank you Rafik and thank you very much Gabrielle and all who worked on the
drafting.
I endorse this document. I only made one minor suggestion regarding
consistency.
Best,
Mar?lia

On Thu, Sep 18, 2014 at 6:04 AM, Rafik Dammak <rafik.dammak at gmail.com>
wrote:

> 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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>


-- 
*Mar?lia Maciel*
Pesquisadora Gestora - Centro de Tecnologia e Sociedade - FGV Direito Rio
Researcher and Coordinator - Center for Technology & Society - FGV Law
School
http://direitorio.fgv.br/cts

DiploFoundation associate - www.diplomacy.edu
PoliTICs Magazine Advisory Committee - http://www.politics.org.br/
Subscribe "Digital Rights: Latin America & the Caribbean" -
http://www.digitalrightslac.net/en
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