On Sep 4, 2016, at 15:19, Edward Morris <[log in to unmask]> wrote:Hi Bill,Thanks for this.
From: "William Drake" <[log in to unmask]>
It seems there’s been a disconnect and that the normative expectation that Councilors communicate openly and transparently with each other and members about their thinking and upcoming voting on key issues didn’t happen in this case, at least not enough or presumably Milton wouldn't have asked and we wouldn’t be here. So please help me out:
Could you please just state what position you enunciated on the transition to members and fellow Councilors in the lead up to the Marrakech meeting, as well as at the meeting? Was it support for the transition now, in keeping with the collective process? Or was it more like the Heritage position of support for the transition at some unspecified future date under another US administration? I alas can’t recall what you were advocating in advance and so was puzzled by what you appeared to be doing at the Marrakech Council meeting. Please help me to understand, “just the facts” as they say, and then we can move on together? If you have a URL or two to places where you laid this out, that’d be even better.My apologies to yourself and everyone else for my delay in getting back to you. As I noted to you privately, and later posted on the list publicly, mid to late August is when I earn a substantial part of my yearly income. As professors and students often disappear from the list during exam season at other parts of the year, I become an ICANN minimalist during these few weeks of summer. During this time of year I'm spending most of my time living in tents, often covered in mud, helping put on various music festivals throughout the UK and Ireland. As Council takes August off that usually is not a problem, but with the various controversies surrounding the election this year it seems it has become one. Again, my apologies. It is this irregular nature of my income stream that allows me to often spend 20+ hours a week on ICANN matters during the rest of the year and to spend up to a month yearly in hotels away from home at F2F ICANN meetings. It would be a shame if academics and students were the only true volunteers, one's not paid through grants or by employment to be active here, able to function in key roles in the new ICANN. My fear is that is becoming the future.I will note that despite my job responsibilities, I have largely been able to meet my commitments at ICANN during this period. I attended all Council related events, was up at 6 am Tuesday for a CCWG call and for most of the RPM call on Wednesday I was the only NCSG member among the 40+ attendees. I fear the day when none of us are there and the IPC lawyers can do what they want unencumbered by those of us committed to representing noncommercial registrants and their interests. Meeting my current ICANN commitments had to be a priority and was.Reading the hundreds of backlogged e-mails in my Inbox today I can't help but feel happy at the level of engagement on some issues yet saddened at the tone and negativity of many of the comments. I have a different take on NOTA than perhaps anyone else here, a legalistic one having to do with the Charter, but as things seemed settled I see no sense in bringing it up at this time. My sincere thanks to the EC and to those who put together the petition for working out their differences in a fairly rapid and largely civil fashion. Although Charter reform is needed (and I've proposed one such change that I hope the EC will consider presently: ( https://listserv.syr.edu/scripts/wa.exe?A2=ind1608&L=NCSG-DISCUSS&F=&S=&P=227294 ) the current EC can do much to make the Charter work better by establishing the many procedures and norms that the current Charter calls for. To do so would be pretty simple, rapid and wouldn't require ICANN approval. Perhaps this election controversy can serve as an impetus causing the current EC to address issues former EC's have largely ignored. One can hope so.As a volunteer, I'm sad at seeing some of the electioneering that has occurred while I've largely been attending to revenue producing aspects of my life. I have to admit, the personal nature of some of the electioneering is pretty hard to take and makes me wonder why I'm volunteering my time at no pay here when there are so many other places I could be spending my life. I see that despite being the NCSG member who has donated more hours on the transition project than any NCSG member not financially supported by ICANN, my commitment to the transition has been questioned. Questions about communication are directed at me, despite me being the only Councillor to give out his Skype address and offer to walk any of our 500+ members through the accountability reforms on a one on one basis. A Democratic political consultant in a past and likely future life, it's actually been implied that I'm conspiring with Republicans! Words don't exist to express how all of this makes me feel. I'm not sure what else will be next, but a song from a show I worked on Thursday may give folks some ideas: maybe it's time to Bring on the Dancing Horses to further confuse people about who I am and what I've done ( great song, with lyrics that pretty much express how I feel about a lot of this FUD: https://www.youtube.com/watch?v=pruy_8nqRV8 ).Bill, let me answer your questions directly. I'll then proceed to walk people through the Council vote in Morocco. Then hopefully we can move on from the events of six months ago.By the way, did anyone see the great work your current Councillors did in Helsinki on your behalf? We managed to get the NCSG numerical superiority over the CSG and the entire CPH on the team that is transposing the accountability reforms into the GNSO. Arguably, the most important GNSO working group in many years and the NCSG has more appointees than any other group. Has that ever happened before? Pretty good, huh? That was your current, often maligned Council contingent , at work!It seems there’s been a disconnect and that the normative expectation that Councilors communicate openly and transparently with each other and members about their thinking and upcoming voting on key issues didn’t happen in this case, at least not enough or presumably Milton wouldn't have asked and we wouldn’t be here. So please help me out:Happy to. This supposition is completely not true and is an example of the electioneering (not by Milton, I should add) that so saddens me. The truth is actually the opposite of the allegation.I will refer you to the transcript of the NCSG meeting in Marrakech of 8 March. The link to it may be located here: https://meetings.icann.org/en/marrakech55/schedule/tue-ncsg .During the meeting each Councillor had the opportunity to state how he or she was going to vote on every recommendation before the Council concerning the transition. We heard from our member to the CCWG, Ms. Robin Gross. Others with strong opinions, such as those representing some of our institutional members, voiced their opinions. There were differences of opinion but those opinions certainly were communicated to and amongst each member. The transcript does not lie.By the way, which Councillor was responsible for ensuring that this session of open and transparent communication between Councillors and between Councillors and our Members occurred?Here is what Marilia Maciel, Chair of the NCSG Policy Committee, said at the outset of the meeting (page 2 of the transcript):"So the session of the GNSO tonight is supposed to diffuse any tensions or any surprises and make sure that we arrive in the voting tomorrow in a more collaborative way. And that is why it was suggested that maybe we examine at this moment some of the statements that the councilors want to put forward tomorrow to make sure that we are all comfortable and we are on the same page. In order to do this (Edward) had suggested that we hold a PC meeting inside this NCSG Open Meeting."That is correct. Me.Could you please just state what position you enunciated on the transition to members and fellow Councilors in the lead up to the Marrakech meeting, as well as at the meeting?I had been working to make the transition the best one possible since meeting one of the CCWG on 9 December 2014. That doesn't require having a position on the transition, but one can assume I'm not going to sacrifice a substantial portion of my waking hours working on something to oppose it.In Marrakech the NCSG meeting opened with the NCSG Chair characterising the CCWG accountability project as something "that's been messing up with everything in ICANN the past two years". My response (page 1 of the transcript of 8 March) best characterises my position then and my position now concerning the transition:"Thanks Tapani. I disagree with the characterization of accountability. I think it’s great because when it’s done for the first time really in world history we could have an organisation, if we do it right ,that’s going to be bottom-up multi-stakeholder running a global common resource. So I'm excited about it even though it’s been an incredibly large amount of work."I don't have a blog, Bill, and I'm not a voting member of the United Stares Congress. If I had to vote up and down on the transition in Marrakech I would have voted to approve it. I tend not to oppose things I'm excited about. If I had to do it today: same thing. I don't have that vote or that responsibility so it's not something I lose a lot of sleep over. I'll share a secret with you, though: No one cares what Ed Morris or Bill Drake thinks about the transition. Well, I do care about what you think Bill, although I may be the only one. :)What I can do is keep working to make the transition the best possible transition for myself and for our members. To make sure "we do it right". I'm doing that as rapporteur for the CEP subgroup, as a member of the Legal Executive, as a participant in the Ombudsman, Transparency and Jurisdiction subgroups. I can have a real impact there, to make this transition a good one that works. So that's what I do. I'll let other pontificate on the big issue. I'm just a worker bee and am quite happy with that status.Or was it more like the Heritage position of support for the transition at some unspecified future date under another US administration?Heritage may actually owe me some royalties on the delayed transition idea. I recall talking to Paul of Heritage in Istanbul, or maybe it was Paris - all of these conference rooms look alike - and trying to come up with a third way for those supportive of the transition but not confident in this particular transition. Better to have our opponents supporting a delay than opposing the transition overall. Paul told me at the time that the idea of a delay was not realistic. Times change.If you look through the thousands of pages of transcripts and recordings concerning the transition you will find absolutely no record of me calling for a delayed transition. There are only two reasons that would make sense: 1. If the other option was no transition at all, or, 2. if the Board could not be trusted to faithfully implement outcomes of the WS2. And, conditionally, if either of these reasons were in play at the time of a final decision. I do not believe either reason is a current concern. That was not always a given.The Board did not always act in good faith. A few examples:1. Milton and Paul wrote an interesting article about the Board's scuppering of the membership model with some last minute shenanigans: http://www.realclearpolicy.com/blog/2015/10/14/icann_internet_governance_transition_hijacked_1443.html .( Of course, while others were complaining, properly, about the big picture I was pounding the streets and the internet to insure that the Inspection right of membership was ported over to the new designator model. I succeeded. We all have roles to play here: I think this example illustrates how I view mine).2. After the conclusion of the final comment period for the final report the Board intervened inappropriately and against all agreed procedural norms to insist on some changes to the final proposal limiting government power. Many of us in the NCSG fought this impropriety but lost. http://mm.icann.org/pipermail/accountability-cross-community/2016-February/011374.htmlWork stream 2 issues are key to the NCSG and our members. Transparency, diversity, staff accountability, human rights...these are things we in the NCSG traditionally fight for. If I felt there was the slightest chance that post transition the Board would not largely implement our proposed changes in these areas...a delay would make sense. Without the WS2 reforms this is not a good transition for our members.There were times many of us, including the leaders of the CCWG, often at night in bars and restaurants, spoke to each other about either delaying the transition until WS2 was completed or finding some other way to compel Board acceptance. If we needed the hammer of the transition to get these reforms passed what my friends at Heritage propose would be something that should be considered, along with other options.We don't.The Board has changed since the early days of the CCWG effort. Personally getting the Board to accept Inspection opened my eyes to the possibility that change had occurred. Becky Burr, IMHO the community MVP on the transition, is now on the ICANN Board. When Becky tells me not to worry about getting WS2 reforms accepted I believe her. I'm also seeing great engagement by Board members on the WS2 subgroups. If they were going to reject the proposals I doubt they would be this active.My answer may not satisfy many. So be it. I've noticed that many academics view the world through a vision of purity, black / white thinking. I'm a lawyer by profession: I live in the world of grey. Lawyers are trained to explore all options and never close an option unless absolutely necessary. I'm always trying to think two steps ahead, trying to answer the question of 'what if' that clients often have and explore all possibilities to reaching the final goal. If suddenly the Board did something to make all of us seriously question whether they would implement WS2 reforms then...I'm sure all of us would be trying to figure a way forward. It's always helpful to play out scenarios as you progress to your desired outcome.And, as previously mentioned, transition timing has nothing to do with the work I'm doing in the five subgroups to make the transition a good one. The transition - you know, the one that will be occurring on October 1st. On time and greatly over budget. :)alas can’t recall what you were advocating in advance and so was puzzled by what you appeared to be doing at the Marrakech Council meeting. Please help me to understand, “just the facts” as they say, and then we can move on together?Bill, I'm going to have to lay this out step by step, for your benefit as well as mine. It was a long time ago. So I don't bore everyone and can answer your question, and respond to queries others have posed elsewhere, let me try to do this in a question and answer format. To wit:What were Councillors voting on Marrakech?Councillors were voting on 12 recommendations from the CCWG - Accountability. The recommendations may be found here: https://community.icann.org/pages/viewpage.action?pageId=58723827 .Why was there no vote on the entire package?The Charter was not designed to allow for an up down vote on the entire package. There was an attempt to have a vote approving all twelve recommendations at once. I objected to this proposal and using GNSO Council rules I forced votes on individual recommendations whenever at least one Councillor, from any group, indicated he or she did not wish to support the specific recommendation.Why did you do this?Our Stakeholder Group had led the way in the CCWG in opposing aspects of the transition that 1) empowered other SO/AC's to the perceived detriment of the GNSO, 2) empowered the Board to interfere in SG and Constituency matters without community involvement, and 3) increased GAC power within ICANN. Some of the recommendations contained things that continued to be problematic in this regard. As Robin Gross stated at the 8th March GNSO meeting (page 17 of the aforementioned transcript):" Now I'm not going to suggest you vote against the package -- not at all. But I think it is important that we register some descent on these issues in particular because this is a fundamental shift at ICANN. And I fear that it is taking Internet governance backwards in the wrong direction and will have a negative impact on the things that we care about like freedom of expression and privacy and openness. So it’s not all black and white for me."
If we had stayed united I believe we may have been able to have force changes that would have made the transition a better one for our members. We probably could have forced at least one of the recommendations, most likely recommendation ten, to be re-situated as a work stream 2 project. With six NCSG votes I believe we could have found the others needed to do so.During our recent candidate call I supported binding our Councillors on certain high profile votes. My belief is that binding would empower our Member, in this case Robin, in negotiations within the working group and empower our Stakeholder Group overall. I respect others who disagree with this position, there are many layers to the arguments involved, but our lack of unity on the CCWG vote has led to my view on this option.In retrospect, still believe there was value in allowing for the votes on individual recommendations. Although it did not affect the outcome, it did show that there were areas of the transition we had concerns about. Democracy, transparency and openness is usually, although at times a bit messy, a good thing!What do NCSG Councillors consider when making their voting choices?I can only speak for myself in this regard. The NCSG Charter is very clear in giving us instructions:"Each NCSG GNSO Council Representative shall represent, within the GNSO Council, ICANN and its activities, the goals and priorities of the NCSG to the best of his/her ability and in accordance with the principle of consensus building. Since the NCSG will represent many different noncommercial viewpoints, the NCSG Council Representatives will not be bound in their GNSO Council votes to any specific NCSG established policy"As best I'm able, I attempt to sort what our Members want, try to determine whether there is a significant minority position within our membership that should be considered and see how the positions that could be taken fits with the mission statement and goals of our group, as stated in the NCSG Charter.It's not always easy. One of my favourite former NCSG Councillors, Wendy Seltzer, made a comment in an NCUC video ( at about 1:20 here: https://www.youtube.com/watch?v=Y8PwgToGU20 ) that I've found very true: the loudest at ICANN are usually the one's who are listened to. This troubles me a bit, which is why I support both Tapani's and Rafik's recent proposals to reach out to members through polling or some more advanced membership engagement options. We need some mechanism to learn how every one of our members feel about key issues, rather than hearing only the opinions of the loudest and most active members.I did try to make a special effort to reach out to all our members on the CCWG-Accountabilityfinal report. On 23 February I made a post to the NCSG Discuss list that included the following offer:This Report is in the hundreds of pages and it is not easy reading. I'd like to offer to help. If you have any questions about the Final Report please ask them here. One of our many CCWG participants will be sure to see it and will answer it. If not I pledge to go through this list every 24 hours and if there is an unanswered question about our Report here I will either answer it or I will find someone who can. If you'd prefer to ask me something privately my e-mail address is [log in to unmask]. You can reach me on the Wire app using the address t[log in to unmask]. You can Skype me at ejmorris. I want each and every one of you to have every opportunity to view, understand and question any aspect of this Final Report that is of interest to you. This is the most important change in ICANN in over a decade. I want our members to be the best informed of any group in this community.I spoke to just under a dozen members individually, one on one, as a result of this post. Those talks did inform my vote and I'm grateful to the NCSG Members who took the time to reach out and speak with me.Do NCSG Councillors usually diverge in their votes?No. We usually vote as a block. In fact, the only motion other than those to do with the CCWG where there was any divergence this year was on final passage of the RPM Charter, where I dissented. As one of very few NCSG members active on the RPM and currently working under that Charter: that was a good vote. It's not a very good Charter for our interests, although the initial proposal was far worse than what we wound up with. I should note that I voted in the negative in that instance only after consultation with our senior I.P. specialist, Kathy Kleiman.Complete voting records of all Councillors from the current year may be located here: https://community.icann.org/display/gnsononcomstake/NCSG+Councilor+votes+on+GNSO+motions .Did all NCSG Councillors have equal knowledge of and experience with the CCWG?No. I was the only Councillor of the six intensely involved in the CCWG.In workstream 1 I attended 62 CCWG plenary sessions. One of our Councillors attended 4 sessions, one Councillor attended 3 sessions, two Councillors attended 1 session each, and one Councillor was not a member of the CCWG at any time.Of course, the other Councillors were involved in many areas of ICANN where I was not. I just wanted to note that we had vastly different levels of experience with the CCWG subject matter, not that there was anything unusual in the attendance differential. We all have different areas of interest and expertise. The CCWG was, and is, one of mine.How did you personally determine the NCSG consensus position on the CCWG-Accountability recommendations?As we were not directed as to how to vote by the NCSG Policy Committee, on the final report I looked primarily to two sources of official / semi-official NCSG policy:1) public comments to previous versions of the CCWG recommendations, the substance of which was largely unchanged ( https://forum.icann.org/lists/comments-draft-ccwg-accountability-proposal-30nov15/pdficTkYnzo21.pdf) and2) advice of the official NCSG appointed member to the CCWG, Ms. Robin Gross (please see transcript of 8 March NCSG meeting).There appeared to be support in the NCSG comments, without objection from Robin, for recommendations 3, 4, 5, 6, 7, 8, 9 and 12.Although some of the recommendation numbers changed between the second and third draft reports, there appeared to be opposition in the NCSG comments to recommendations 1, 2, 10, 11.Robins comments on 8 March indicated opposition to recommendations 1, 10 and 11.As such, I feel that it is reasonable to assert the following:NCSG guidance supported recommendations 3, 4, 5, 6, 7, 8, 9 and 12.NCSG guidance opposed recommendations 1, 10, 11.NCSG guidance was not available or was split for recommendation 2.How did NCSG Councillors vote on these recommendations?All NCSG Councillors supported recommendations 3,4,5,7,8,9,12.Recommendation 1 (available NCSG guidance suggested a NO vote): NO; Ed, David. YES: Amr, Stephanie, Stefania, Marilia.Recommendation 2 (available NCSG guidance inconclusive): NO: Ed, Stefania. YES: Amr, David, Stephanie, MariliaRecommendation 6 (available NCSG guidance suggested a YES vote): ABSTAIN: Ed, YES: David, Amr, Stephanie, Stefania, Marilia.Recommendation 10: (available NCSG guidance suggested a NO vote): NO: Ed, Marilia. YES: David, Amr, Stephanie, Stefania.Recommendation 11: (available NCSG guidance suggested a NO vote): NO: Ed, Stefania. YES: David, Amr, Stephanie, Marilia.Are you attempting to criicize your fellow Councillors in posting this data?Absolutely not.I respect each and every one of my colleagues. Everyone approached these votes differently, with serious and considered intent.What I do wish to point out is that despite an attempt by some engaging in electioneering to portray my votes as undisciplined or contrary to NCSG positions, my votes tracked closer to the stated pubic NCSG positions on these recommendations than those of any other Councillor.I opposed the effort to give the GAC and governments more power within ICANN (recommendations 1 and 11).I opposed thresholds that could prove unworkable and neuter community power should some SOAC's decide not to participate in the community mechanism (recommendation 2).I opposed exempting the GAC from periodic external reviews and I opposed allowing the Board to conduct SO/AC reviews independent of the community input (recommendation 10).I should note that his was our last chance to push back against increased government power within ICANN. Although we succeeded in the CCWG in negating a lot of what the GAC wanted to do, and obtained the GAC carve out on certain issues, I did not join the NCSG to vote favourably on a specific line item that grants, for the first time ever, governments power to override the will of both the community and of a majority of the ICANN Board in certain instances.So I did not. No stakeholder should have powers superior to that of all other stakeholders combined. It's a matter of principle for me.Why did you oppose human rights?I didn't.I abstained from voting on a recommendation that was poorly designed and ill defined that without correction in work stream two could endanger the public interest rights the NCSG has traditionally campaigned for: free speech, fair use, privacy and due process.Of note, I do have extensive education and experience in the field. I've earned postgraduate diploma's in human rights from both the Irish Centre for Human Rights in Galway, Ireland and the Institute for Human Rights at Abo Akademi in Turku, Finland. I've done some work in the area. I have a pretty decent level of knowledge of this field.I should also note, that as Marilia pointed out in her post supporting my nomination, "he gave support to our colleagues who were fighting hard to introduce human rights provisions into ICANN’s bylaws." ( https://listserv.syr.edu/scripts/wa.exe?A2=ind1608&L=NCSG-DISCUSS&F=&S=&P=96631 ). I am supportive of including human rights provisions in the ICANN Bylaws, but the inclusion must be done properly and with great care. My goal is to introduce human rights into ICANN's bylaws in away that promotes the traditional enumerated rights the NCSG has traditionally supported. It can still happen and I hope to work with the Board and my fellow CCWG members and participants to ensure that it does.What exactly were you voting on? What was proposed in recommendation 6?The language read:“Within its Core Values, ICANN will commit to respect internationally recognized Human Rights as required by applicable law. This provision does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This Bylaw provision will not enter into force until (1) a Framework of Interpretation for Human Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus recommendation in Work Stream 2 (including Chartering Organizations’ approval) and (2) the FOI-HR is approved by the ICANN Board using the same process and criteria it has committed to use to consider the Work Stream 1 recommendations.”What is the difference between opposing a recommendation and abstaining on a vote in the GNSO Council??Per GNSO operating procedure §4.3.2 those casting an abstention vote are required to make a statement explaining the reasoning behind heir vote. I could have also made a statement voluntarily while supporting the recommendation, but I believed, correctly, that abstaining would give more notice to my concerns. My intent was to highlight my concerns regarding free speech limitations and the possibility that if the Framework of Interpretation did not include a statement akin to 'nothing in this Framework should be interpreted to involve ICANN in content regulation" the human rights bylaws clause could be used to do exactly that.So you did not oppose recommendation six?No. The recommendation was Incomplete. If the Framework is properly developed it could be the highlight of what we've done in the CCWG. If done improperly, it could torpedo the decades long work of many in the NCSG to keep ICANN away from content regulation. As well as allowing me to send a message concerning speech and content, I was very comfortable in abstaining from voting on something whose final form was yet unknown.If your vote had been decisive as to whether this recommendation passed how would you have voted?My comments at the 8 March NCSG meeting speak for themselves (transcript, page10):"If my vote is decisive I will vote in favor or Recommendation 6. If it is not, I will vote a volitional abstention"I certainly wanted the human rights efforts to progress. My vote to abstain in no way affected the progress of this effort or this recommendation. If it did, as stated, I would have supported the recommendation. My abstention allowed me to highlight my concerns , and those of several other NCSG members, regarding the possible worst case consequences concerning speech and content that a poorly developed Framework of Interpretation would allow for.What is the danger of recommendation 6?Intellectual property is a human right.I have trouble with that concept, many members of the NCSG community may have problems with this concept, but i.p. proponents and some in the human rights community believe that intellectual property is a human right that exists indivisible with all other rights (see, for example, some of the discussion here: http://www.wipo.int/edocs/pubdocs/en/intproperty/762/wipo_pub_762.pdf ).There is a reason that the Intellectual Property Constituency has been strong proponents for including the human rights provision in the ICANN Bylaws. It has nothing to do with free speech. It has everything to do with artistic and property rights.Section 1.1.C of the new ICANN Bylaws prohibits ICANN's involvement in online content regulation:ICANN shall not regulate (i.e., impose rules and restrictions on) services that use the Internet’s unique identifiers or the content that such services carry or provide, outside the express scope of Section 1.1(a). For the avoidance of doubt, ICANN does not hold any governmentally authorized regulatory authority.W?e all owe a great debt to Milton Mueller, who negotiated this language with Becky Burr over an extended period in the CCWG. The problem is that a poorly drafted Framework of Interpretation could allow the intellectual property community to largely invalidate this provision of the new ICNN Bylaws.If the Framework does not include a provision expressly prohibiting the human rights bylaws provision being used to involve ICANN in content regulation, the IPC, and others, could use human rights as a backdoor to getting involved in content regulation. Here is how:If allegedly infringing content is hosted online by an ICANN accredited Registrar that refuses to take it down (an instructive example here could be the rojaditecta matter involving a Spanish based website that hosted content that was held to be legal under Spanish law but whose website was seized by US authorities for 18 months for allegedly hosting infringing content under American law; see https://www.techdirt.com/articles/20120829/12370820209/oops-after-seizing-censoring-rojadirecta-18-months-feds-give-up-drop-case.shtml ) an aggrieved third party could ask ICANN to force the registrar to take down the allegedly infringing content.Would not section 1.1.C of the new ICANN Bylaws cause ICANN to refuse to get involved in this type of content regulation? We'd hope that would be the case, although there is no guarantee ICANN would act in this manner, but a refusal in this case to involve ICANN in content regulation would allow the I.P. rights holder to challenge ICANN's decision through the Independent Review Process as enumerated in §4.3 et. al. of the new ICANN Bylaws. The matter would then go to a three person IRP panel, per §4.3(k) of the new Bylaws. That panel would then have to decide the following:1. Do we accept the IP rights holders argument that intellectual property is a human right and, if so,2. Which Bylaws provision shall prevail:Section 1.1.C (see above), orSection 1.1.b.viii, which reads:(viii) Subject to the limitations set forth in Section 27.2, within the scope of its Mission and other Core Values, respecting internationally recognized human rights as required by applicable law. This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission, or beyond obligations found in applicable law. This Core Value does not obligate ICANN to enforce its human rights obligations, or the human rights obligations of other parties, against other parties.?Section 27.2 of the new ICANN Bylaws is the Framework of Interpretation.From a legal perspective the phrase "does not obligate" is a virtual nullity. I could also phrase this as "does not prevent". Were ICANN to chose initially to do as the IP rights holder requests, nothing in §1.1.b.viii would allow us to challenge it's use of this provision in our own IRP complaint.Bottom line: An IRP panel would determine the clash of competing bylaws. As someone committed to keeping ICANN out of content regulation that is a chance I am unwilling to take.How can this problem be fixed?By simply inserting into §27.2 of the new ICANN Bylaws the phrase "Nothing in this Framework should be constituted as involving ICANN to take actions otherwise prohibited by §1.1.C of these Bylaws" or something similar.Is it likely to be fixed?I hope so.My vote to abstain on recommendation 6 did create a bit of a stir and gave me the opportunity to express my concern to other members of the CCWG and to members of the ICANN Board. I believe there is general support for the type of restrictions concerning ICANN involvement in content, particularly at the ICANN Board level, that I am seeking to create.Of course, the easiest way to get this done would be to insert the limiting language cited above in the Framework that comes out of the work stream 2 subgroup. I appreciate assurances from Tatiana Tropina during the Accountability discussion of 16 August (transcript here: https://community.icann.org/display/gnsononcomstake/NCSG+Webinars ) that those NCSG members in the sub team are working to "hold" the line on content regulation as best they can. I wish them luck in this regard. However, when they are dealing with comments like the following from a member of the IPC, made during the 2nd meeting of their subgroup:"Ruggie principles state that business (ie. ICANN) should "not contribute to" human rights abuses. (See page 21.) Of course for
some, this may conflict with what they see as their free speech rights. For example, the Hague Criminal Court had testimony yesterday from the perpetrator of
crimes of destruction of cultural property in Mali. This destruction resulted from ISIL occupation and its statement against the culture in Mali that it viewed as
heretical. These videos are accessible on certain Internet sites. If ICANN permits sites to be used to show destruction of cultural property - or in a more extreme
case, to permit authorized Internet urls to be used to display beheadings, is ICANN contributing to human rights violations and failing to respect Human Rights?"I recognise their battle will be a long and difficult one.Bill, I'm sorry at the length of my response. It's easy to throw out allegations and to infer improper behaviour using bumper sticker slogans, catchy phrases and faulty assumptions. The truth, particularly in matters like these, often takes time, requires detail, links and detailed thought and prose. I take pride in my work here, take it seriously, and hope I've provided enough of later three for you. My only regret is my delay in responding. As noted, the work I do at this time of year largely pays my bills for the rest of the year. I have another week of heavy activity (I'm heading off to work once this is posted) and then things should return to normal.A reminder: people can still vote or change their votes in the NCSG elections for Chair and Councillor up until midnight UTC Sunday night. Look for correspondence from [log in to unmask] in your inbox to find your ballot. Only the final votes count. For those interested my candidate statement can be found here: https://listserv.syr.edu/scripts/wa.exe?A2=ind1608&L=NCSG-DISCUSS&F=&S=&P=298116 .Thanks everyone for considering my comments and thanks Bill for asking the questions that prompted my response.Kind Regards,Ed Morris