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

[Avri Doria]

Hi,

I went through it, changed the header from disagreements to concerns as
offered by Gabrielle and support NCSg endorsement.

avri


On 18-Sep-14 09:32, Marilia Maciel wrote:
> 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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