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
>> ***********************************************
>>
>>
>>