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
>> <[log in to unmask]>:
>> 
> 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 
>>>>> <[log in to unmask]>:
>>>>> 
>>>>>> 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:[log in to unmask]]
>>>>>> Sent: 29 July 2014 21:56 To: Gabrielle Guillemin; 
>>>>>> [log in to unmask] 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 [[log in to unmask]] on
>>>>>>>> behalf of joy [[log in to unmask]] Sent: 22 July 2014 22:03
>>>>>>>> To: [log in to unmask] 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 <[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 
>>>>>>>>> ***********************************************
>>>>>>>>> 
>>>>>>>>> 
>>>>>>>>> 
>>>>>>> 
>>>>>> 
>>>>>> 
>>>>> 
>>> 
>