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 <[log in to unmask]>
> To: [log in to unmask]
> 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,
> Marília
>
>
> On Tue, Jul 8, 2014 at 4:41 AM, joy <[log in to unmask]> 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 <[log in to unmask]> 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
> [log in to unmask] (direct), [log in to unmask] (lists),
>   www.williamdrake.org
> ***********************************************
>
>
>