Human rights impact assessment

Thu Nov 5 10:56:20 CET 2009

Dear all,
Apologies for getting a bit late in this discussion, but in between the STI, writing a book and teaching, I am very slow with email at the time. At the STI face-to-face meeting in Seoul, NSCG suggested that we sunset the URS and in the meantime suggest a close and structured review of the UDRP. I am personally very much in favour of seeing the UDRP being amended for various reasons. The UDRP is now more than 10 years old and since its creation it has not been subjected to any sizeable amendment. This for me is highly problematic as its case-law is used as precedent and with zero checks and balances mistakes (both substantive and procedural) get replicated - a vicious circle. I have already started selling the idea for amending the UDRP and, surprisingly enough, I do not see much objection. Of course, each constituency will seek to promote its own interests, but at the bottom line, it seems like an amendment is welcome.
To answer Milton's excellent question: for me, I believe that at this stage the fast-track process proposed by WIPO is the worst that can happen. We have to remember that when it comes to UDRP services, WIPO is not acting as an intergovernmental organization, but as an ICANN accredited centre. This means that WIPO should follow processes and rules as directed by ICANN and cannot venture in this by itself. The ICANN process follows the bottom-up model according to its charter and rules, whilst WIPO seems to have consulted only the biased panellists that currently decide on its case law. (I explain all the issues I believe are problematic in the CircleId post). The fact that only WIPO is undertaking this process (in the midst of ICANN's own process) is highly problematic for registrants as well as the other providers - I am really surprised that the other 3 accredited centres have not been vocal on this. Trademark owners - and this is based on the experience over the past ten years - will definitely go for the WIPO process, which by custom will definitely replace the UDRP. If WIPO was an easy way for the trademark community to get the domain names they have their eyes on (remember that WIPO has the highest number of cases in favour of the complainant), then with this fast-track process WIPO is in it big time. It might overshadow STI's work or it may not - in any case it clouds the whole ICANN/STI process, which is representative and transparent (yes I know!!!)
So, I really suggest that we suggest a review of the UDRP. As Mary said and I agree, we can wait and see what will happen with the STI after this week and then we can discuss it extensively in our list. But, I personally and I am not speaking as STI, NCSG, believe that we need to move fast to an amendment of the UDRP.
Best
Konstantinos

From: Non-Commercial User Constituency [mailto:NCUC-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of Milton L Mueller
Sent: Tuesday, November 03, 2009 5:05 PM
To: NCUC-DISCUSS at LISTSERV.SYR.EDU
Subject: Re: Human rights impact assessment

Mary:
WIPO's recent move to create a "fast track UDRP" in which they show they are competing with a prospective URS in terms of shortcutting respondent's rights provides an opening to do this

I see that Konstantinos is all over it:
http://www.circleid.com/posts/20091102_wipo_fast_track_udrp_process_flawed/

For our trademark experts, I have a question: which is worse, the proposed URS or the fast track UDRP? Can the latter be used to get rid of the former?

Milton Mueller
Professor, Syracuse University School of Information Studies
XS4All Professor, Delft University of Technology
------------------------------
Internet Governance Project:
http://internetgovernance.org<http://internetgovernance.org/>

________________________________
From: Non-Commercial User Constituency [mailto:NCUC-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of Mary Wong
Sent: Tuesday, November 03, 2009 11:13 AM
To: NCUC-DISCUSS at LISTSERV.SYR.EDU
Subject: Re: [NCUC-DISCUSS] Human rights impact assessment
The other issue to think about, as regards bringing it up for at least a spot on the Council's priority work list for the following year, is a possible revision of the UDRP. Our community thus needs to decide whether to bring up both issues, or just one, or perhaps more than two (if there are other issues members feel strongly that the Council should take up over the next year).

Our STI team (Wendy, Robin, Kathy & Konstantinos) can let us know whether a UDRP revision is something they'd like for NCSG Councillors to bring up, probably after the November 6 deadline for SG submissions regarding the Board letter to the GNSO on trademark protections in new gTLDs.

Cheers
Mary

Mary W S Wong
Professor of Law & Chair, IP Programs
Franklin Pierce Law Center
Two White Street
Concord, NH 03301
USA
Email: mwong at piercelaw.edu<mailto:mwong at piercelaw.edu>
Phone: 1-603-513-5143
Webpage: http://www.piercelaw.edu/marywong/index.php
Selected writings available on the Social Science Research Network (SSRN) at: http://ssrn.com/author=437584

>>> Avri Doria <avri at LTU.SE> 11/3/2009 9:46 AM >>>
Hi,

If this is something we want on the priority list, should it not be
brought up at the time the priority list is being made?  even if at
the moment it is forced to the bottom of the list by the others
because they do not wish to support human rights, it gets on the list
as something that needs attention some time in the future.

If it doesn't get brought up now, it gets lost because then they can
ask, with justification,  why it was not brought up during the
priority setting exercise - and ends up dead for a least a year.

But yes, forming a team to flush it out is a good idea.

a.

On 3 Nov 2009, at 01:48, William Drake wrote:

> Hi,
>
> Like Mary, I like the concept in principle but have questions about
> its near-term feasibility in practice.  For example, the council's
> agenda is packed; the process of digesting and adjusting to
> restructuring is really just getting underway; NCUC participation in
> the existing work program (working groups, drafting teams etc) is
> low and uneven, which affects the optics; and the one item we
> pressed onto the agenda in recent months---the issue report on
> vertical integration---already encountered resistance in part on
> capacity grounds, and has been delayed because the staff is maxed
> out.  So if we go into the council and propose a new work item that
> isn't precisely specified and doesn't point to clear and tractable
> action lines, I imagine it would be a tough sell, and it's not
> obvious which if any of the other stakeholder groups would support
> the initiative.  (There is also some question about how this would
> play given the perception/allegation in some circles that NCUC is
> sort of a single-issue freedom of expression group that doesn't
> engage sufficiently on other issues like consumer protection etc.)
>
> My suggestion is that people who are particularly interested in the
> concept form a team to flesh it out, e.g. by clearly specifying the
> problems that need to be addressed and the means by which this could
> be done, and work up a proposal.  We could then have some dialogue
> to fine tune and then take a hard look at the council's calendar and
> think about the best time and way to introduce it and who we might
> be able to get to support it.
>
> Best,
>
> Bill
>
>
> On Nov 2, 2009, at 11:04 PM, Mary Wong wrote:
>
>> Rebecca and everyone, doing a human rights impact assessment is an
>> excellent suggestion that should definitely be included in the
>> public comments to the current DAG. Perhaps the NCSG (or NCUC) can
>> also include in its public comments a statement of support for the
>> idea?
>>
>> As to bringing it up to and within the GNSO Council process, I'd be
>> glad to except that I am not sure at this time when and how would
>> be the best method. It's not just that the Council has tons on its
>> plate at the moment (as many of you know), which would likely mean
>> little enthusiasm for taking on something new that probably is not
>> a priority item for some of the other Councillors and SGs; it's
>> also the question of what "action item" we (NCSG/NCUC) would be
>> requesting of the Council.
>>
>> Would NCSG/NCUC be requesting a statement of support from the
>> Council or a policy action? Or something else? Each possibility
>> requires a different process (and possibly a different strategy).
>>
>> [NOTE: A policy development process (PDP) may be initiated by the
>> Board, an Advisory Committee (AC) or the Council. It first requires
>> an Issues Report be prepared by ICANN Staff that will include a
>> recommendation as to whether the issue is properly within the scope
>> of the GNSO Council's mandate. The Council then votes on whether to
>> initiate the PDP (unless it is a Board-initiated request). NCUC
>> has, in fact, recently requested an Issues Report on Registrar/
>> Registry integration, which should be finished and sent to the
>> Council later this month.]
>>
>> Perhaps the NCUC and/or the newly-established NCSG Executive
>> Committees can discuss what their preferred option would be, in
>> addition to making the suggestion in public comments to DAG-3? For
>> example, would ALAC be interested in making a joint request?
>>
>> (I'm not trying to be negative - far from it - but am hoping to
>> focus our discussions and actions to have the maximum impact
>> possible within ICANN's arcane processes and organizations.)
>>
>> Cheers
>> Mary
>>
>> Mary W S Wong
>> Professor of Law & Chair, IP Programs
>> Franklin Pierce Law Center
>> Two White Street
>> Concord, NH 03301
>> USA
>> Email: mwong at piercelaw.edu
>> Phone: 1-603-513-5143
>> Webpage: http://www.piercelaw.edu/marywong/index.php
>> Selected writings available on the Social Science Research Network
>> (SSRN) at: http://ssrn.com/author=437584
>>
>>
>> >>> Rebecca MacKinnon <rebecca.mackinnon at GMAIL.COM> 11/1/2009 9:19
>> AM >>>
>> Andrew, yes, Google is a founding member of the Global Network
>> Initiative and is working with GNI to develop a human rights
>> assessment process for Internet companies and hopefully the ICT
>> sector more broadly. Perhaps ICANN staff might be more willing to
>> listen to GNI members Google, Yahoo, and Microsoft than to non-
>> commercial users.
>>
>> Milton, glad you like the idea. If our GNSO councilors are
>> interested in bringing this up through the GNSO, or if anybody
>> participating in the various working groups wants to use the GNI
>> principles on privacy and free expression as a benchmark for
>> whether basic standards are being met on that front please let me
>> know what other contacts/info you need.
>>
>> Meanwhile I will plan to submit something with this suggestion in
>> the DAG public comments as well.
>>
>> Cheers,
>> Rebecca
>>
>> On Sun, Nov 1, 2009 at 9:13 PM, Andrew A. Adams <a.a.adams at reading.ac.uk
>> > wrote:
>> milton Mueller wrote:
>> > This is a fantastic idea, Rebecca.
>> > As you may know, some of us have been trying to get free
>> expression concerns
>> > as an officially recognized part of ICANN's agenda for some time
>> (back to
>> > the beginning, in fact).
>> > We learned during the new gTLD policy making process (e.g., the
>> "morality
>> > and public order" section) how difficult that will be and we have
>> learned
>> > that the U.S. government is completely indifferent, at least the
>> Commerce
>> > Department that controls relations with ICANN.
>>
>> I recently attended a talk by David Drummond, Chief Legal Officer
>> and Senior
>> VP at Google, on Technology and Freedom of Speech. He (and by
>> extension,
>> Google, since he was speaking officially for the company) have a
>> policy of
>> promoting freedom of speech quite broadly. They might be a useful
>> ally in
>> such an effort.
>>
>>
>>
>> --
>> IMPORTANT: My Hong Kong University e-mail (rmack at hku.hk) will stop
>> working in January. Please use my gmail instead (see below).
>>
>> Rebecca MacKinnon
>> Open Society Fellow | Co-founder, GlobalVoicesOnline.org
>> Assistant Professor, Journalism & Media Studies Centre, University
>> of Hong Kong
>>
>> UK: +44-7759-863406
>> USA: +1-617-939-3493
>> HK: +852-6334-8843
>> Mainland China: +86-13710820364
>>
>> E-mail: rebecca.mackinnon at gmail.com
>> Blog: http://RConversation.blogs.com
>> Twitter: http://twitter.com/rmack
>> Friendfeed: http://friendfeed.com/rebeccamack
>>
>
> ***********************************************************
> William J. Drake
> Senior Associate
> Centre for International Governance
> Graduate Institute of International and
>  Development Studies
> Geneva, Switzerland
> william.drake at graduateinstitute.ch
> www.graduateinstitute.ch/cig/drake.html
> ***********************************************************
>
>
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