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/1swluHqQOEC4RZSO38if3qpBlfCDIqXjoaChoYYmrBfo/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
>>> ***********************************************
>>>
>>>
>>>
>