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Hi Milton
some comments in line for you
Joy
On 6/05/2013 3:34 p.m., Milton L Mueller wrote:
> Joy, I disagree, the human rights analysis is sound, hope you'll
> have an open mind and reconsider.
Of course - and likewise that you will also be open to reconsider
> 
> First, the only so-called "rights-affirming" thing you cite is the 
> bit about community applications.

JL: not so - you are not looking at the negative space in the GAC
communique - namely what is not in it. For example, there are very few
objections to specific strings. that is a good thing imho and is
"rights affirming". I'm not over-stating it or saying we should be
grateful (on the contrary we should expect that), but it's better than
I anticipated in some (ok, only some, but yes, some) respects
This reads:
> 
> "in those cases where a community, which is clearly impacted by a
> set of new gTLD applications in contention, has expressed a
> collective and clear opinion on those  applications, such opinion
> should be duly taken into account, together with all other
> relevant information."
> 
> I am not sure what right this affirms that is not already
> contained in ICANN's community application guidelines.
JL: that does mean it is not rights affirming. for community
applications, such as dotgay this is a very helpful statement in my view.
This gives communities
> all kinds of priorities and rights to object, does it not? Can you 
> tell me what is missing there that the GAC communique improves?
> Can you give me an example of a community clearly negatively
> impacted by a "set of new gTLD applications" that does not, under
> the current procedures, have a right to express a collective and
> clear opinion, and have that opinion taken into account? Have you
> noticed the "together with all other relevant information"
> disclaimer? So in this case, the GAC is simply echoing what already
> exists.
> 
JL: that is not my point. My point is that GAC is supporting
communities' rights to have a say - that is rights affirming. The fact
that it is already in the guidebook isn't the point either.

> However, if you believe in individual as well as collective rights 
> you will also recognize that this contains some danger, some 
> undesirable elements regarding free expression rights. Because
> groups (and individuals) can always claim that they are "impacted"
> by an application simply because they don't like it, or think that
> it might be used to convey expression of speech critical of them.
> 
JL: there's always danger :-) one danger is that some groups in ICANN,
like trademark rights groups, will have more say or power than some
communities (we often complain about this in NCSG). But I think the
GAC communique refers to communities (group, not individual) does it not?
>> While I agree that there are some serious issues with other 
>> aspects, overall I think the draft comment really strikes the
>> wrong tone and won't be persuasive. I don't have the bandwidth to
>> look at this in
> 
> [Milton L Mueller] Actually there are people in the GAC who think 
> they have overreached and this will reinforce that sense. I know
> for a fact that there are also people on the board, and close to
> the board, who strongly agree. It will be persuasive to key members
> of the Board. And that is what matters. The GAC leadership is
> hopeless anyway. I don't care what they think, except that I want
> them to know that we are pushing back very strongly against what is
> essentially a takeover of the policy process.
JL: I agree we need to push back strongly. But tenor and tone are
important and i don't think as drafted you've got it right - the good
points you make are hidden by or detracted from by the way they are
delivered - there seem to be some other messages to that effect on the
list.
> 
>> 1. Get rid of the whole preamble and all the paras on GAC and
>> the multi- stakeholder process. it doesn't add anything
>> substantive to the specific advice comments.
> 
> [Milton L Mueller] Nope. That is the most important part of the 
> comments. I'm disappointed that we don't have a common
> understanding of the political environment, but I am pretty
> confident that I am right about this. There are geopolitical
> dangers here that you don't seem to appreciate.
JL: I do appreciate them - i just have a different way of responding
to them.
Ask yourself why ICANN is making this
> unprecedented request for public comment on GAC advice. We need to 
> raise the larger issue regarding the role of the GAC.
> 
JL: then to be effective, make the statement cogent and persuasive
instead of a tirade against the GAC - it is a statement on behalf of
the whole of NCSG.
>> 2. On the preamble - the first para made no sense to me: how
>> does asking for HR principles to be abided by make a mockery of
>> HR? suggest you make it clearer.
> 
> [Milton L Mueller] OK. Will try. But first, explain to me what you
> do not understand about the distinction between lip service and
> actual respect for rights?
JL: if you want to tell the GAC you don't believe them when they say
something, do so. But don't dress up your cynicism in the guise of
human rights jurisprudence which does not substantiate your argument.

Is it not incredibly obvious that those words
> about HR principles were thrown in as a kind of CYA (that means 
> "cover your ass" in American slang) to divert attention from or 
> provide cover for the actual requests that are being made?
> 
> The bad parts of the GAC advice are extremely specific. They 
> constitute clear instructions or recipes for systematic invasion
> of privacy, suppression of free expression, over-regulation of
> domain name registries and users. What you consider to be the
> "good" parts are general and provide no clear means of
> implementation. Which one do you think will win out?
> 
JL: i agree there are bad parts of the advice - which is why i noted
that in my original comments, noted the points i agreed with and
offered to help with some of the more woolly or problematic rhetorical
questions.
> If someone in a position of authority says: "take this man to 
> Guantanamo Bay, tie his ankles together at all times, put a hood
> over his head, beat him if he complains, deprive him of sleep at
> night by playing ugly music at 80 decibels" and then adds, "oh, and
> be sure to abide by all international conventions regarding human
> rights while you're at it" how rights-affirming would you consider
> that to be? Just asking.
> 
JL: well i certainly agree that the US govts record on human rights is
pretty bad in many respects and yes, how is that hunger strike going
down there in G Bay?
But again, you miss the point: what you are really saying is that you
don;t believe GAC members (presumably the US in particular) will
uphold human rights standards. fine. say that. the way you've couched
it means that a simple point is deeply buried...
and just because human rights are violated doesn't mean we don't have
them - it means they've been violated. some governments also do uphold
rights from time to time ....
>> 5. I don't agree with the statements on closed generics - and if 
>> we don't have a shared NCSG position i think better to leave out
>> or submit as personal comments together with those who want to
>> sign on.
> 
> [Milton L Mueller] There are no statements in favor of or against 
> closed generics in the statement as it stands.
There is an
> observation that the GAC is contradictory: demanding careful
> vetting and restrictions on who can register in so-called open
> TLDs, and then coming out against any restrictions or vetting when
> it is done privately and voluntarily. Interesting contradiction, I
> wonder how you justify it?
JL: i am happy to be corrected on that - I will look at the draft
again, once i can get back to it.

Try to look beyond your specific position on closed
> generics and focus on the more fundamental issue, which is "who 
> decides" and "how is this decided?" If you think that these kinds
> of process disruptions and random interventions by GAC are fine as
> long as one they end up supporting one or two of your favorite
> positions, then we are unlikely to ever agree.
JL: "unlikely to ever agree" - oh Milton no need to to generalise in
such overly dramatic ways, for goodness sake :-) i am sure there is
much we will agree on - including the need for a strong and persuasive
NCSG statement on the GAC advice  - and thanks again for your work on it.
> 
> 
> 
Joy
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