-----BEGIN PGP SIGNED MESSAGE-----
Hash: SHA256

Dear Ed,

Very sorry to hear about your sudden and intense hospital visit, good
to hear you're on the bettering hand. Please find my response inline:

On 09/05/2015 01:07 PM, Edward Morris wrote:
> Hi everyone,
> 
> I'm sorry I haven't been very active on the list lately. About a
> week and a half ago I was taken ill and have been battling a few 
> problems in-patient here at a hospital in Edinburgh. Slowly things
> have been getting better and I hope to be out of here very soon and
> able to resume full activity on list and online. Until then I don't
> have real time internet access and am dependent upon a friend to
> upload and download things for me on a daily basis. I've read with
> interest many of the discussions here, particularly those related
> to the DIDP and transparency within ICANN. These are things very
> close to my heart and I'm deeply gratified with what I've been
> reading and thank so many of you for your support in these efforts.
> I look forward to joining that discussion shortly, at a time when I
> can access the internet in real time. I should assure people that I
> did get the DIDP  Reconsideration motion submitted on time, thanks
> to a dear friend who took my dictation and some great nurses who
> allowed it to happen. I write, or more accurately dictate my
> thoughts, today on something unrelated to that topic but one that
> is generating much discussion on list: the language desired for
> inclusion in ICANN's Bylaws related to human rights.
> 
> First, the fact we're even having this discussion here and in the
> CCWG is due largely to the determination of one person: Avri Doria.
> She forced this discussion through a single minded bullheaded
> determination that I continue to be in awe of. We all owe Avri a
> great deal for her work in this area.
> 
> I do want to go on record as supporting Brett's view, below, that
> a specific reference to free expression and the free flow of
> information is superior to a generalised reference to human rights
> and is to be preferred. I do so for reasons different than that
> expressed by Brett and Paul, though: I believe our objectives for a
> free and open internet can better be achieved through specific
> reference to free speech and free flow of information than it can
> by a reference to a generalised commitment to human rights.
> 
> My preference is based upon practice and practicality rather than
> any deeply held theoretical construct. One of the defining
> characteristics of the NCSG and our policy positions is that we
> have been the standard bearers for those opposed to intellectual
> property maximalists within ICANN. It should be noted that one of
> the leading advocates within the CCWG for the shift away from the
> more narrowly defined "free expression / free flow" to a more
> generalised "human rights" language has been Greg Shatan, President
> of the Intellectual Property Constituency. Greg knows "human
> rights" provides the I.P.C. with multiple justifications for the 
> expansion of i.p. monopolies, be it through the improper but often 
> attempted use of Article 17 of the UDHR applying property
> protections to intellectual monopolies or through porting the
> concept of droit d'auteur from copyright to trademark law.
> Governments, some, such as Iran, which also have written in favour
> of the broader standard, may be keen to use "human rights" to
> restrict speech they find offensive. There are those who believe
> that human rights means offensive speech, hate speech in European
> terms, should be restricted. That might seem reasonable until one
> recalls it was governments such as Saudi Arabia in objections
> filed during the first round of the new gtld program that found
> many proposed domain lines we would be fine with (.catholic or
> .gay, for example) to be offensive.
> 

I think this is actually a misrepresentation of the discussion. Greg
Shatan never supported a general commitment to human rights, this is
only a recent development after long work and hard discussion.
Depicting human rights as a trojan horse for the IPC is in my humble
opinion a wrong depiction.


> Rather than the term "human rights",  within ICANN I prefer the use
> of specific terms denoting specific rights. For me, this means free
> speech, privacy and due process. Marilia posits that human rights
> are indivisible by nature. That presumes agreement on what exactly 
> constitutes a human right, something not in evidence either by
> state practice or by treaty obligation. The right to property, for
> example, is recognised in article 17 of the soft law Universal
> Declaration but is not recognised in the hard law of either of the
> International Covenants. It's use in regional conventions tends to
> be limited and secondary to other rights, such as that of free
> expression, in application.  We see a divide here that is often
> replicated in the human rights community between academics, who
> hold the UDHR in great reverence, and litigators, who tend to care
> about the more binding human rights instruments, used in context. I
> have no great desire to argue on Council, in a Reconsideration or
> in an IRP what constitutes a human right. The minute that becomes
> the basis of discussion I've lost. It's a bit like "public
> interest": a term that has so many meanings it really lacks any
> useful meaning in application and becomes verbiage to be 
> manipulated rather than respected in practice.
> 

I have to support Marilia on this point, one cannot cherry pick rights
because they seem more appropriate, human rights are indivisible. And
as you remark later, there is already an indirect commitment to human
rights via Art 4 of the articles of incorporation, so am not sure
there is an extension of scope here.

> Due process is already part of the ICANN legal acquis per the
> decision of the IRP in ICM v. ICANN , in which it was decided that
> by virtue of paragraph 4 of ICANN's Articles of Incorporation (not
> the Bylaws, as has been stated elsewhere) ICANN has an obligation
> to follow customary international law, which does include due
> process. Privacy was something that was briefly considered and
> rejected by the CCWG. I disagreed with that decision but am
> comforted by the fact that ICANN will have to respect, whether it
> wants to or not, the privacy protection offered by the
> jurisdictions in which it operates. Certainly not an ideal
> situation but workable in a practical sense.
> 

Indeed there is a commitment to due process, but I think this is not
strong enough implemented by far. A commitment to human rights would
help us implement guidelines as defined by the UN Guideline Principles
on Business and Human Rights, which would severely help us in the
upcoming UDRP discussions, as well as come up with a proper CSR policy.

> If you give me or one of our other Members who tend to do the
> Recons and challenges here at ICANN a commitment to free expression
> and free flow of information in the Bylaws  it is something we can
> easily use, citing precedent,  to argue against ICANN regulating
> content. If you give us a generic commitment to human rights, in my
> view, it is something that others can use to try to force ICANN to
> regulate content and means our first step in protecting free speech
> in litigation is to prove it subsists under the generic human
> rights ICANN Bylaws commitment. That is not automatic and can, and
> will, be contested by our opposition. Speech as property, domain
> names as property, offensive speech, as determined by someone, to
> be restricted....all of these are dangers of an undefined 
> generalized commitment to human rights.
> 
> In any event, as mentioned earlier I don't have real time access to
> the internet in the hospital and regrettably am unable to carry on
> a conversation as normal on my views herewith. I do offer them,
> though, to support the view that the more specific the terms used
> in the Bylaws concerning a commitment to specific human rights are,
> the more useful they will be to us and, as such, I join with
> Heritage, albeit for different reasons,  in supporting the more
> succinct and practical Bylaws language ""to respect the fundamental
> human rights of the exercise of free expression and the free flow
> of information." In  fact, I'd quite happily delete "fundamental
> human" from that statement.  I want to note that I do understand
> and respect the views of those holding a different perspective on
> this matter- I certainly share your goals - but have a bit of a
> different take on how best to achieve increased respect for human
> rights in the ICANN context.
> 

You might be interested in reading our last two report on ICANN and HR
on this issue:

http://www.article19.org/data/files/medialibrary/37845/ICANN-PAPER-WEB.p
df

http://www.article19.org/data/files/medialibrary/38003/ICANN_report_A5-f
or-web.pdf


> I do not believe there is consensus here to support the broader 
> generalized  "human rights" language on offer and I hope our NCSG
> CCWG public comment reflects same.
> 
> I should also note that paragraph 4 of the Articles of
> Incorporation of ICANN already obligates the Corporation to carry
> out its operations "in conformity with relevant principles of
> international law and applicable international conventions",and I
> read that to already include relevant human rights conventions.
> Specifying free expression and the free flow of information, as
> well, in the Bylaws would remove any doubt about ICANN's commitment
> in those vital areas and make it easier to litigate in Recons and
> IRPs while still allowing those so inclined to argue for other
> general human rights obligations for ICANN  with no less authority 
> than if the generalised "human rights" term itself is included in
> the Bylaws.
> 
> Thanks to everyone doing all of the hard work and I hope to be with
> you again as soon as possible.

Hope you'll be back soon.

Best,

Niels



> 
> Best,
> 
> Ed
> 
> ----------------------------------------------------------------------
- --
>
> 
*From*: "Schaefer, Brett" <[log in to unmask]
> <mailto:[log in to unmask]>> *Sent*: Friday, September 4,
> 2015 7:47 PM *To*: [log in to unmask]
> <mailto:[log in to unmask]> *Subject*: Re: CCWG comments
> last call
> 
> That is why we would prefer the alternative option -- "to respect
> the fundamental human rights of the exercise of free expression and
> the free flow of information." If that is too narrow, additions
> could be suggested, but they should be clearly defined to avoid
> confusion and mission creep.
> 
> 
> 
> Brett Schaefer Jay Kingham Senior Research Fellow in International
> Regulatory Affairs Margaret Thatcher Center for Freedom Davis
> Institute for National Security and Foreign Policy The Heritage
> Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 
> 202-608-6097 heritage.org <http://heritage.org>
> 
> -----Original Message----- From: Tamir Israel
> [mailto:[log in to unmask]] Sent: Friday, September 04, 2015 2:31
> PM To: Schaefer, Brett; [log in to unmask] 
> <mailto:[log in to unmask]> Subject: Re: CCWG comments
> last call
> 
> On the other hand, we would want ICANN to adhere to human rights in
> its own activities/mission. So it must respect privacy when setting
> its WHOIS policies. It must respect free expression when setting
> its UDRP framework. It definitely should adopt domain name
> registration policies that enhance accessibility to domain names.
> So how do we keep the good obligations while avoiding the second
> order ones?
> 
> Best, Tamir
> 
> On 9/4/2015 2:24 PM, Schaefer, Brett wrote:
>> We would be OK with a tightly enumerated set of human rights,
>> but
> support of human rights generically would invite mission creep.
>> 
>> “Internationally recognized human rights” or just human rights is
>> a
> very broad realm and this formulation would, even if circumscribed
> by the caveat of within the mission for ICANN, be an open
> invitation for various ICANN constituencies and governments to
> demand that the organization involve itself in any number of human
> rights activates tangentially related to its mission, e.g.
> financing expanded broadband and connectivity consistent with the
> right to development, fulfilling the “right to the Internet” that
> is being kicked around, or censoring content on the Internet
> consistent with the right to be forgotten or prohibitions on
> defamation of religion.
>> 
>> Regardless of whether these missions are well-intentioned, they
>> should
> be outside of the ICANN remit. But I do not see any realistic 
> possibility of strict adherence to narrow ICANN mission holding
> firm in the face of the political pressure of pursuing these other
> human rights if the bylaws commit ICANN to respect the entire
> universe of human rights.
>> 
>> 
>> 
>> 
>> Brett Schaefer Jay Kingham Senior Research Fellow in
>> International Regulatory Affairs Margaret Thatcher Center for
>> Freedom Davis Institute for National Security and Foreign Policy
>> The Heritage Foundation 214 Massachusetts Avenue, NE Washington,
>> DC 20002 202-608-6097 heritage.org <http://heritage.org>
>> 
>> -----Original Message----- From: Mueller, Milton L
>> [mailto:[log in to unmask]] Sent: Friday,
>> September 04, 2015 1:45 PM To: Paul Rosenzweig;
>> [log in to unmask]
> <mailto:[log in to unmask]>
>> Cc: Schaefer, Brett Subject: RE: CCWG comments last call
>> 
>> Is there any way to word it that would change your dissent, or is
>> the
> objection generic?
>> 
>>> -----Original Message----- From: Paul Rosenzweig 
>>> [mailto:[log in to unmask]] Sent: Friday,
>>> September 4, 2015 1:39 PM To: Mueller, Milton L;
>>> [log in to unmask]
> <mailto:[log in to unmask]>
>>> Cc: 'Schaefer, Brett' Subject: RE: CCWG comments last call
>>> 
>>> Milton/Colleagues
>>> 
>>> I think that the draft is quite fine and for the main I agree
>>> with it. Without in any way seeking to relitigate the issue,
>>> however, I know that the human rights language is one from
>>> which Heritage would dissent. Is there some way of generically
>>> making clear that the NCSG comments do not reflect the
>>> agreement of all NCSG members?
>>> 
>>> Paul
>>> 
>>> Paul Rosenzweig [log in to unmask]
> <mailto:[log in to unmask]>
>>> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202)
>>> 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
>>> 
>>> 
>>> -----Original Message----- From: Mueller, Milton L
>>> [mailto:[log in to unmask]] Sent: Friday,
>>> September 4, 2015 12:43 PM To: [log in to unmask]
>>> <mailto:[log in to unmask]> Subject: CCWG comments
>>> last call
>>> 
>>> I have made some revisions. We seem to have rough consensus
>>> that we are opposed to the proposed voting allocations and
>>> consider them and two other things serious enough to raise
>>> doubts about whether the CCWG- Accountability proposal enhances
>>> ICANN's accountability. The comments now note that we are not
>>> unanimous on this but do have a preponderance of opinion that
>>> would constitute rough consensus. We all seem to be in
>>> agreement about our discussion of the so-called "freedom to
>>> contract" section and the section on advice from public 
>>> authorities. We also now seem to have a way forward on how to
>>> handle the HR commitment, though that has only been floated a
>>> few minutes ago so it needs more review.
>>> 
>>> In reviewing these comments, please refrain from the temptation
>>> to introduce minor wordsmithing - we really don't have time for
>>> it at this point.
>>> 
>>> https://docs.google.com/document/d/1JGBXO5oOiN_FxivPFkHjz3Gc2w3AT2
>>>
>>> 
PeJznrXPw2
>>> fJ4/edit
>>> 
>>> Dr. Milton L Mueller Professor, School of Public Policy Georgia
>>> Institute of Technology
> 
> 
> 
> 
> 
> Sent from my iPhone

- -- 
Niels ten Oever
Head of Digital

Article 19
www.article19.org

PGP fingerprint    8D9F C567 BEE4 A431 56C4
                   678B 08B5 A0F2 636D 68E9
-----BEGIN PGP SIGNATURE-----
Version: GnuPG v2

iQEcBAEBCAAGBQJV7VPSAAoJEAi1oPJjbWjpv4sH/R8PweCnG9b6ZsMXwiahc8XB
qe8cMxSegbA7RPiOqFEQmjjDUQU2E1HguXCKckhhvHcyzQJW1KdalsryBkSE0VXe
gDZR2mJsdftPD2kddW7TGCUgPgssXGyvdEW+2l2nyYwIQWlPKyv3YqfvcwHJ5hEL
lTfgh4eRWzPllxeErSkSTT96uehTlIpIm/zyo1CTacR4Uw35w1m49tcaK23NuQ/l
ILxyBW2egRov7gklHodFAl7kkkCqGQ4RWsk+CCk0XzYc+mRhfexsW0mrWPL625XM
FFSpOAOfswucSynDRhBz7uL6AKKwZy5vkCpLJ+fMuV5jmFVp+z6hwaZhk56qWek=
=4A/c
-----END PGP SIGNATURE-----