Hi all



Hope all is well. Just a quick note to say that I had a go at summarising the various comments that have been made by various NCSG members about the COE report on human rights. Here is a draft: 



https://docs.google.com/document/d/1swluHqQOEC4RZSO38if3qpBlfCDIqXjoaChoYYmrBfo/edit 



Your comments / edits are welcome. Let me know if there is anything else I can do to help.



All the best,



Gabrielle







-----Original Message-----

From: joy [mailto:[log in to unmask]] 

Sent: 29 July 2014 21:56

To: Gabrielle Guillemin; [log in to unmask]

Subject: Re: COE Doc open to comments



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/1swluHqQOEC4RZSO38if3qpBlfCDIqXjoa

>> ChoYYmrBfo/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

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

>>>

>>>

>>>

>