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