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

[William Drake]

FWIW so do I

On Sep 19, 2014, at 10:43 PM, Avri Doria <avri at ACM.ORG> wrote:

> 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
>>>>>>>>>>>>> ***********************************************
>>>>>>>>>>>>> 
>>>>>>>>>>>>> 
>>>>>>>>>>>>> 
>>>>>>>>>>> 
>>>>>>>>>> 
>>>>>>>>>> 
>>>>>>>>> 
>>>>>>> 
>>>>> 
>>>> 
>>> 
>>> _______________________________________________
>>> PC-NCSG mailing list
>>> PC-NCSG at ipjustice.org
>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>> 
>>> 
>> 
>> 
>> 
>> 
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>> 
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg