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