Yes, if the disagreement is not over mission creep, but over whether
ICANN should or should not act in accordance w/all human rights, I
believe it should. Rough consensus makes sense.
Very quickly to Ed's point about IPRs and 'free expression/free flow',
neither of those are any prophylactic against IPR excess. For one thing,
free flow of information is not a human right, freedom of expression is.
For another, other comparable instruments include both of those
commitments and IPR excess in the same breadth. Finally, many have
argued (quite successfully in some jurisdictions) that IPR protection
does not even factor into free expression, whether IPRs are protected by
property/reputation rights or not. The same can be said for other types
of free expression restrictions. All of which to say, we will face these
arguments regardless of whether all human rights are included or just one.
Finally, I think trying to draft and define our own list of human rights
to be protected is highly inadvisable, but in any case I don't think it
will bring us any closer to consensus. I can see already that many would
object to the inclusion of rights that ICANN must, in my view, respect
like privacy, non-discrimination, association, due process, etc.
Best,
Tamir
On 9/5/2015 9:07 AM, Paul Rosenzweig wrote:
> That was all I was suggesting .... I know we are in the minority on this and as I said at the outset I was not trying to relitigate or reopen the discussion -- just trying to preserve our viewpoint.
>
> Cheers
> Paul
>
> Paul Rosenzweig
> [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: James Gannon [mailto:[log in to unmask]]
> Sent: Saturday, September 5, 2015 3:59 AM
> To: [log in to unmask]
> Subject: Re: CCWG comments last call
>
> Might a note to the effect of "some NCSG members have submitted comments in their individual capacities to the CCWG please refer to those comments for their adopted positions” work for Heritage and others who may not agree fully with the points made?
>
> -James
>
>
>> On 5 Sep 2015, at 03:16, Schaefer, Brett <[log in to unmask]> wrote:
>>
>> Carlos,
>>
>> I'm not certain about that. My position certainly has not moved. Perhaps we were never in agreement. Also, since there are two text options in the draft, perhaps consensus is not as clear as you portray it to be.
>>
>> Brett
>>
>>
>>
>> On Sep 4, 2015, at 9:04 PM, Carlos Raúl Gutiérrez <[log in to unmask]<mailto:[log in to unmask]>> wrote:
>>
>> Dear Brett
>>
>> slowly but certainly your are moving away form the CCWG consensus. This is not anymore distance only to the NCSG, but to the overall CCWG rough consensus that we would include HR.
>>
>> Carlos Raúl Gutiérrez
>>
>> ________________________________
>> 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/>
>>
>> _____________________
>>
>> email: [log in to unmask]<mailto:[log in to unmask]>
>> Skype: carlos.raulg
>> +506 8837 7173 (cel)
>> +506 4000 2000 (home)
>> +506 2290 3678 (fax)
>> _____________________
>> Apartado 1571-1000
>> San Jose, COSTA RICA
>>
>>
>>
>>
>>
>>
>>
>> On Sep 4, 2015, at 12:57 PM, Schaefer, Brett <[log in to unmask]<mailto:[log in to unmask]>> wrote:
>>
>> No. As I mentioned in my earlier note, I have no confidence that the mission would remain narrow if a broad, undefined human rights commitment were adopted. There are simply too many human rights that tangentially touch on ICANN's mission that would provide opportunities for mission creep. I would prefer no mention of human rights at all to a broad commitment to 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: Tamir Israel [mailto:[log in to unmask]]
>> Sent: Friday, September 04, 2015 2:49 PM
>> To: Schaefer, Brett;
>> [log in to unmask]<mailto:[log in to unmask]>
>> Subject: Re: CCWG comments last call
>>
>> But this definitely excludes several important and relevant human rights that ICANN would need to consider in its mission (privacy, freedom of association, others). It also includes 'free flow of information' which is not actually a human right.
>>
>> Would it not make more sense to simply reference established human rights as a whole, but add a strong statement for staying on mission so that the downstream activities you mention are avoided?
>>
>> Best,
>> Tamir
>>
>> On 9/4/2015 2:46 PM, Schaefer, Brett wrote:
>> 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:paul.rosenzweig@redbran
>> chconsulting.com>
>> 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
>>
>>
>>
>>
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