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