Thanks for the reminder and the draft, my goodness there is a lot of work on our plates! STephanie Perrin On 2014-08-29, 10:02, Gabrielle Guillemin wrote: > 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 >>>> *********************************************** >>>> >>>> >>>>