[PC-NCSG] further to the discussion last week re the harassment policy

[Stephanie Perrin]

Colleagues
As discussed last week, I prepared comments on the harassment policy.  I 
shared them with the councillors via Skype, and sent them to the GNSO 
last night as we had a deadline of today which we received on the 15th 
from James Bladel.  I attach them here. Ed has commented (see below) but 
other than that, I have not received any further comments.  I know we 
are all very busy, but I do think it is worth thinking about this letter 
before it goes, lest we are not comfortable with what Akram produces 
later.  Jenn has proposed an extension of another day, so it is now or 
never....
Kind regards
Stephanie Perrin


James, all,
I am in receipt of Stephanie's comments on the proposed harassment 
letter. I encourage the Council to consider many of  these suggested 
changes to be the equivalent of hostile amendments to the work produced 
by our small Council working group and to reject most of them,  both on 
procedural and substantive grounds, The document produced by the small 
Council working group led by Jennifer is far superior to one 
incorporating changes proposed at the last minute by Stephanie and 
should be used as our references note going forward.
PROCEDURAL PROBLEMS
A note about how we have worked on this matter as a Council. At the 
Marrakech meeting I raised the issue of sexual harassment. A small 
working group was formed consisting of four Councillors from the NCSG - 
myself, Stefania, Marilia, David - and one Councillor from the 
Registrars in Jennifer. All Councillors were invited to join this group. 
Mary Wong kickstarted the group into action with an e-mail of March 
25th. Jennifer immediately took the lead and on March 28th produced the 
prototype of the document now before us. I immediately suggested a few 
minor changes to the document, which were accepted. There were 17 email 
exchanges amongst the members of the small working group and staff prior 
to release of the final document to the general Councll list.
Once on the Council  list suggestions and comments  made on a timely 
basis by Donna and Phil, were acknowledged by Jennifer, and incorporated 
into the document. Stephanie responded on April 6th with some general 
comments that I believe could are best summarised by this part of her post:
/"It is my view that we need a privacy policy more than a harassment 
policy because I feel that inappropriate conduct is already in fact 
covered by by our acceptable conduct policy"/
This represents a completely different view than that adopted by the 
small working group. I personally reject both the premise and the 
conclusion. Harassment is a specific type of conduct that has 
connotations beyond the term "inappropriate". It is not adequately 
covered by current policy. I should note that although 
Stephanie's  comments have been on list for twelve days, no one other 
Councillor has posted agreement with Stephanie's view that ICANN should 
deal with the situation at hand through it's acceptable conduct policy.
As Stephanie's suggestions were a bit different in format than the 
other comments and not as easy to adapt to the document at hand on 
April  6th Jennifer asked Stephanie to produce a red line version of her 
comments. On April 7th Stephanie agreed. This project had a completion 
deadline of April 14th. No other Councillor objected to the small group 
proposal on list between the 7th and 14th. Then on our monthly call 
  Stephanie verbally objected to our draft, the time frame was 
  extended and we waited through the weekend for her input. Finally, 
eleven days after she agreed to produce a red line document, four days 
after the initial project deadline, Stephanie has responded. Thank you 
for your input, Stephanie.
If this material had been produced in a timely manner it could have 
stimulated discussion on the list, it could have stimulated discussion 
on our call. Instead, I view this as no more than a  way of almost 
  hijacking the process, I'm sure without any malicious intent - 
Stephanie has impeccable integrity,  at the very end so in the end  the 
positions she espouses are adopted out of necessity rather than as a 
result of considered debate. I'm somewhat resentful that I now have to 
spend a few hours of my Monday responding to wholesale suggestions of 
change that were promised weeks earlier. If the Council is to allow this 
type of behaviour  then why would any of us join small working groups? 
Why not just wait until the end, past the deadline, of all projects and 
then object to things when you have the most leverage? I don't 
believe this is an optimal way to conduct our business, whatever the reason.
I also take exception to Stephanies claim that "I attach a markup 
version of both documents.  I have circulated them to the NCSG". As far 
and I can tell, that simply is not true. I have not seen these 
documents prior to this post to the Council list. I've checked both the 
NCSG discussion list and the archives of the NCSG policy committee list 
and no such "circulation" seems to have occurred. Those are our only two 
official mailing lists in the NCSG. I also note that the majority of 
NCSG Councillors were on the small team that Jennifer so aptly led. The 
NCSG had ample opportunity as a group to object to the proposed 
reference note in a timely manner and chose not to do so.
SUBSTANTIVE PROBLEMS
1. Stephanie has created at the outset a list of questions. Some of 
these have suggested outcomes that we did consider early in the small 
group and rejected, others would have been appropriate to consider at 
that time. Stephanie chose not to join this group and to challenge our 
decisions only at this late date.
-

 1. While events at ICANN55 focused on the need for a Conference
    Harassment Policy, would it not be prudent to create a Harassment
    Policy that covers all of ICANN?s activities?

?
No.
Let's be clear: ICANN already has a variety of harassment policies. 
There is a harassment policy, required by California law, that covers 
employees. There is the Expected Standards of Behaviour which may or may 
not cover some forms of harassment. That policy was found to be flawed 
in the most recent highly publicised situation. I should note that both 
parties in that matter support the development of a conference sexual 
harassment policy.
ICANN is an outlier in not having a conference harassment policy. The 
International Association of Conference Centres recommends as standard 
industry practice that a "conference specific, clearly defined policy 
against harassment  be posted at prominent entry points". I see no 
reason for ICANN to reject standard industry practice in this regard.
Meetings introduce the concept of "clear and present danger" into the 
equation. The standards for behaviour of those in close physical 
proximity to one another may necessarily need to be  bit more stringent 
than that of a more general policy.
Harassment itself is also different than general conduct standards 
in that for harassment to occur it must be directed towards a specific 
individual. There is also a mens rea component of harassment not present 
in most of the items contained in the Expected Standards.
ICANN is best served by a conference specific harassment policy with 
clearly defined roles and responsibilities.
That said, I certainly would have no objection if a phrase akin to "we 
hope that the development of  a conference harassment policy is only the 
first step towards developing a wider policy against harassment in all 
of ICANN's activities and affairs" were added to the letter if that 
would meet with Stephanie's approval.
2.    If not, how does one deal with harassment that continues after an 
event, or starts online or through conference calls, meetings, etc. 
outside the actual face to face conferences?
Through normal processes. This is not an either / or situation. Some, 
including myself, believe that the lack of a conference specific policy 
is a hole in an otherwise satisfactory policy requiring civil behaviour. 
I should also note that ICANN is not a state. There are also 
opportunities to deal with these matters through normal channels. 
However, given that ICANN does hold meetings in countries where 
harassment may be permitted legally, a specific conference harassment 
policy does provide some de facto  assurance of some protection within 
the meeting site. It is a challenge. See, for 
example: http://www.dailymail.co.uk/news/article-3534495/US-woman-jailed-insulting-United-Arab-Emirates.html 
as to what we are facing going forward.
3. What is the purpose of a harassment policy, and how does it intersect 
with the existing standards of behavior policy?  
(https://meetings.icann.org/sites/default/files/icann-standards_of_behavior-jul14.pdf
The purpose of a conference harassment policy is to create policy which 
produces an environment in which all attendees are comfortable in and is 
one which attendees are free from harassment of any kind. It does so by 
delineating specific conduct that is prohibited and by establishing 
clear reporting obligations and requirements. This is far greater than 
the current ESB requirement that everyone act civilly towards one another.
I would also opine that the current policy does not work when applied to 
this type of incident   and the lack of a conference policy of a 
specific nature exposes ICANN legally.
4./How does one differentiate between inappropriate remarks or actions, 
and harassing, demeaning, and abusive behavior?  Many harassment 
policies scope the offensive activity or actions in terms of repeated 
behavior that forms a pattern, or if only a single event, an event that 
is of very significant proportions (eg physical contact).  A policy must 
be clear enough that when Implementation guidance and training is 
provided, our global multicultural audience will be able to understand 
clearly when conduct and speech are unwelcome or inappropriate, and when 
they are very offensive to normal sensibilities and constitute 
harassment. Defining normal will be challenging./
These question largely go to implementation and are beyond the scope of 
our current, initial, policy reference point.
Regarding Stephanies criticisms of specific points contained in the 
"ICANN Conference Harassment Policy - Key Points" distributed by James 
on 15 April at 22:55 UTC:
1. I support the text as written without any changes, although certainly 
believe it could be approved. Please remember this is a mere reference 
point.
2. As harassment by definition is directed at an individual I reject 
Stephanies concerns for the section beginning "inappropriate communication".
3. As Stephanie rightly notes ICANN as a private corporation has no 
control over whether an accused party seeks legal redress for any 
perceived harm. The prohibition against retaliation is a necessary 
clause that encourages victims to come forward but as with all policies 
written by a private corporation the effect of said policy is limited to 
the corporations remit. That is true of this entire document. I woulds 
not want to limit the language as operation of law already constrains 
it's reach and I would prefer that the anti-retaliatory language be as 
broad as legally possible. The current language meets that goal. I 
should note the same concerns have been expressed concerning 
whistleblower policies and have been  found to be lacking.
4. I reject Stephanie's assertion that you need to "train a couple of 
thousand conference attendees to recognise and prohibit this type of 
conduct". That is FUD. This policy empowers those who witness such 
behaviour to report it given that often the power relationship involved 
makes it impossible for the victim to report it. I note this is mere 
reporting; no judgement as to validity of the complaint is being made.
Although I would prefer to keep the language as is, I would have no 
objection to changing "should immediately" to "are encouraged to 
immediately" if that would address some of Stephanie's concerns.
5. I not only reject Stephanie's assumption that the Ombudsman is or 
should be the first line for reporting, our small group, at my request, 
deleted this concept from our proposal. First, the Ombudsman in not 
empowered by the ICANN Bylasws to conduct investigations into relations 
between parties that have no direct contractual relationship with ICANN. 
That he did in the most recent publicised incident is being considered 
for litigation (against ICANN) by one of the parties involved and has 
prompted me to write a letter to Steve Crocker asking for an explanation 
/ justification (response yet to be received). There are people within 
ICANN corporate in the human relations department who have expertise in 
this area and who I believe are far better qualified to handle these 
types of complaints than the Ombudsman. That said, I would prefer for 
ICANN corporate, not us,  to establish the reporting structure in line 
with other responsibilities and expertise of their employees.
6. The line "ICANN will protect the confidentiality of individual(s) 
reporting suspected violations of the incident(s) to the extent 
permissible and with due regard for procedural fairness" is good 
language and should be retained. Stephanie's proposed substitution is 
too limiting ('investigations and interviews conducted under this 
policy"), too defined ("confidential") and would expose ICANN to greater 
legal liability should a party be dissatisfied. The text in the proposed 
document is read as a "best effort" clause and would not expose ICANN 
legally except in the case of gross negligence.
7. I agree with the clause requiring staff members who become aware of 
"any form of harassment or potential incidents": to report them to the 
front line employee given responsibility for these matters. This is not 
just good policy in terms of stopping harassment, this is good policy in 
terms of limiting ICANN's exposure to lawsuits resulting from such 
incidents.
I do not believe putting links to nonspecific government harassment 
policies has any value whatsoever. ICANN is not a government, it is a 
private corporation. We are not trying to create, in this action, a 
comprehensive harassment policy, but rather a conference harassment 
policy. Links to specific conference harassment policies, of course, 
would be most welcome if anyone wants to spend the time to find and link 
to them.
As stated, I would prefer to keep the letter and reference document as 
written. I respectfully disagree with Stephanie on many of her comments 
and by timing her response so late there really isn't time to engage in 
a full conversation as would be desirable.
However, if it is deemed permissible for Stephanie's last minute changes 
to the proposed document to be accepted over my objection then I 
respectfully request the following additional changes be made:
- Addition of an opening clause
?This policy aims to strengthen and safeguard the ICANN working 
environment so that it is a welcoming and enabling diverse environment 
for stakeholders from all backgrounds.
- Change the word 'colour' to 'ethnicity'
- Exclude the word 'disability', as that term is now considered to be 
somewhat derogatory'; handicap should suffice
- change 'sex' in all instances to 'gender'; 'sex' has connotations that 
does not fully describe the wide array of possible sexual identification 
categories that 'gender' does;
-, include 'stalking' as a prohibited offense
Again, my preference would be to go with the document as is. I will 
remind everyone that this is merely a reference note to provide an 
example of what a policy might look like. There will be ample 
opportunity for the community to weigh in on the actual proposed policy 
at a later date.
I note also that Phil has made some additional recommendations today to 
  strengthen the proposal. My principle objection is timing (although in 
a different procedural environment I would consider them friendly 
amendments)  - I am generally in agreement , at least in part, with all 
but one of his proposed changes. I will note that Phil's earlier 
recommendations have been incorporated into the document. His current 
proposals and my responses:
/1. What procedural due process protections will be established for 
parties to the dispute, and what standard of proof shall be required for 
an adverse finding/.
I agree that this would be a useful addition to the accompanying letter 
as a bullet point.
/2. I believe we need a standard that requires some intent on the part 
of the alleged harasser to demean, denigrate, harass, etc./
Harassment by legal definition has a mens rea component. I would not 
object to making this clear in the policy document but do not believe it 
is necessary.
/3. policy needs to be further developed to make clear that conduct of a 
criminal nature (assault, indecent exposure, rape) is outside the scope 
of any harassment policy and is to be reported by ICANN to the proper 
authorities./
We need to be careful here. It may not be clear whether an activity is 
or is not illegal. I would not want to create any legal obligation for 
ICANN to report any alleged crime. I'd suggest that rather than put this 
in out policy proposal we add another bullet point to the letter akin to:
- We believe procedures need to be developed so that those matters that 
are  violations of law are reported immediately by ICANN or the 
complaining party to the proper authorities.
I think we need to note this but I would be hesitant in a rushed manner 
to come up with exact wording within the proposed "key points". I'm fine 
with a bullet point in the letter.
/- ?You should report any actions that you believe may violate this 
policy no matter how slight the actions might seem? I would suggest 
deleting everything after the word ?policy?, leaving more discretion to 
a target or witness to decide when to invoke whatever procedures may be 
created to deal with harassment./
I agree.

/-Finally, I would suggest that the term ?ICANN Conference? needs to be 
clearly defined to make clear its breadth. That is, does it only cover 
incidents that occur  at the official meeting site or are other 
locations and activities covered; such as meeting sponsor social events, 
official meeting hotels, etc.?/
Good point. I would limit the policy to the meeting itself, I don't 
believe ICANN should limit the free expression rights of sponsoring 
organisation, but am open to other ideas.

**
*WAY FORWARD*
The GNSO is late in making this submission. We do need to act now.
My preference would to have had this conversation during the past few 
weeks these documents have been posted and open for participation.
I have no objection to changes in the documents to which there is no on 
list opposition. I have, however, objected to several of the changes 
proposed for substantive policy reasons. These documents have been 
available and open for comment for about two weeks. The deadline for 
this project was supposed to be last Thursday. Unless more widespread 
opposition is voiced, I would suggest the document as presented in James 
weekend e-mail be considered approved and sent. That said, I have no 
objection to requested changes by Stephanie and Phil that have not met 
with any opposition by EOB today to be incorporated in the final 
document. Where challenged, however, I believe we should stick with the 
original language in the absence of more widespread opposition.
I want to thank all my my colleagues for their work on this and, in 
particular, Jennifer, whose leadership and hard work have made this 
happen. I have very much enjoyed working with her.
Respectfully,
Ed
------------------------------------------------------------------------
*From*: "Stephanie Perrin" <stephanie.perrin at mail.utoronto.ca>
*Sent*: Monday, April 18, 2016 4:10 AM
*To*: "James M. Bladel" <jbladel at godaddy.com>, "GNSO Council List" 
<council at gnso.icann.org>
*Subject*: Re: [council] Letter regarding Harassment / Conduct at ICANN 
Meetings
Thanks for circulating this James.  I agree with Phil's recent comments, 
but I attach a markup version of both documents. I have circulated them 
to the NCSG, but I think it is fair to say there are divergent views on 
this topic, so these are my own personal comments.  As I have expressed, 
I think we are rushing into a complex area here and I do hope that once 
Akram comes up with a draft, there will be ample opportunity to discuss 
and refine the document.
Kind regards
Stephanie Perrin
On 2016-04-15 16:18, James M. Bladel wrote:
> Council Colleagues -
> As discussed during yesterday?s call, we intend to send a high-level 
> letter to ICANN (Akram) on behalf of the GNSO Council, thanking him 
> for his blog post and drawing his attention to statement from the NCUC 
> and the draft policy created by Jennifer and others.  (On this latter 
> point, I?ve edited the Key Points document to reflect the most recent 
> comments on the thread).
> If you have any comments or edits to the letter or ?Key Points? 
> document, please post these to the list by EOD Monday, 18 APR.  Edits 
> could include changes/additions to the language, as well as inclusion 
> of other materials or links to statements from other groups.
> The target is to post this letter by Tuesday, 19 APR.
> Thanks?
> J.


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