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.
 
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).
 
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.
 
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.
 
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.
 
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.
 
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.
 
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.
 
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.
 
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.
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.
 
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.
 
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
***********************************************