Sub-group Members: Andreea Brambilla, Andrew Mack, Anne Aikman-Scalese, Cheryl Langdon-Orr, David McAuley, Greg Shatan, Griffin Barnett, Herb Waye, Janet Shih Hajek, John Laprise, Kavouss Arasteh, Markus Kummer, Niels ten Oever, Paul McGrady, Tatiana Tropina   (15)

Observers/Guests:  Beth Bacon, Mark Carvell, RLC   (3)

Staff: Berry Cobb, Bernie Turcotte, Brenda Brewer, Elizabeth Andrews, Karen Mulberry, Nathalie Vergnolle   (6)

Apologies:  Matthew Shears, Jorge Cancio

** If your name is missing from attendance or apology, please send note to **




  1. Administrivia - Roll call, absentees, SoIs, etc

      2. The way forward

  a. summary of e-mail exchanges

  b. revise the FoI (before/after public comment)?

  c. one or two documents (FoI/suggestions)?

  d. response to the CCWG / co-chairs

     3. AOB

Notes (including relevant portions of chat):

1. Administrivia

Roll call will be taken from the AC room.

No participants on audio

Apologies: Matthew Shears, Jorge Cancio, Tatiana Tropina

No updates to SOI.

Review of agenda - Greg: suggest to review the bullet points in annex 12 point by point. Greg will send a slide to display in this call.

2. The way forward

Niels provided summary of email exchanges with co-chairs, and summary of mailing list discussion.

•  Kavouss: we should not open the discussion again, but mandate the small group who drafted the FoI to flag if anything is missing from Annex 12.

•  John Laprise: I would suggest to open up for public comment now, and take it from there.

•  Greg: the co-chairs have asked us to confirm if we have covered Annex 12, so we should go through each bullet point against the FoI, and determine if each point has been taken in consideration. The drafting team did a textual analysis of the bylaw, our understanding was that the consideration of all bullet points was a separate task. We need to confirm that we are done before going to public comment.

•  Niels: I am not sure if the Annex 12 mandates 1 or 2 documents.

•  David: agree with Greg, we should take the time to consider the different points. There could be 2 documents if necessary.  

•  Kavouss: I agree we should verify that the FoI considers all points of Annex 12, but suggest it should be done by the drafting team or another team, and not leave it to public comment.

•  Anne: I agree that we may not have considered all the points in Annex 12 while developing the FoI, and these points need to be discussed more in depth.

•  Niels: let's go through the bullets one by one, and see where we are.

Review of bullet points of Annex 12:

bullet #1:

Consider which specific Human Rights conventions or other instruments, if any, should be used by ICANN in interpreting and implementing the Human Rights Bylaw.

•  Greg: I think we did consider this bullet but we have not concluded.

•  David: I agree.

•  Anne Aikman-Scalese: I think we have considered the first bullet point.

•  David McAuley (RySG): I don't se it a a non-answer given that the bylaw 1.2(b)(viii) has to be read with this and it does point to applicable law

•  Tatiana Tropina:  we didn't consider it while drafting

•  David McAuley (RySG): this might highlight one aspect of making "suggestions" - we could perhaps suggest HR instruments ICANN might consider but not say "should" in FOI

•  Greg Shatan: The question is which instruments should ICANN use?  What is our answer?

•  Tatiana: We have not considered these bullet points, we have done a textual analysis of the bylaws. I don't believe this FoI is ready for public comment.

•  Kavouss: opposed to any other course of action than the one I previously indicated

•  Niels: there are different possible ways forward.

•  Greg: I support the suggestion of Kavouss. I think it would be premature to send out the FoI to Public Comment. When we consider the different bullets of Annex 12, we might want to modify what we have writtent in the FoI. The co-chairs have asked us if we have considered Annex 12, and we have not.

•  Anne: I agree that the discussion should be kept at the level of the subgroup, and we should answer to the co-chairs that we have not considered all the bullet points of Annex 12.

•  Niels: we don't have to answer everything right away. Suggest to continue the discussion next week, and consider next steps then.

•  David: how about we designate a leader for each bullet point to kick off discussions on each topic?

•  Several voice opinion in favor of forming a group to prepare the discussion.

•  Niels: we will form a small group and the group can start working on considering the bullets before our next meeting next week. 

3. AOB

Next subgroup call: Tuesday, February 7th, 19:00 UTC.


Action Items

Documents Presented

Chat Transcript

Brenda Brewer: (1/31/2017 12:28) Good day all and welcome to the Human Rights Subgroup Meeting #18 on 31 January 2017 @ 19:00 UTC!

  David McAuley (RySG): (13:00) Hi Brenda, 4154 here

  Brenda Brewer 2: (13:00) Thank you David!

  Kavouss Arasteh 2: (13:00) Hi Every Body

  Herb Waye Ombuds: (13:07) Greetings all...

  Greg Shatan: (13:08) Bullet Point slide sent to list and staff.

  David McAuley (RySG): (13:09) got it, thanks Greg

  Paul McGrady: (13:18) Sounds like we either need to tell the co-chairs we won't follow the instructions or we actually need to plow through all of these prior to publication.  

  Paul McGrady: (13:18) Agree we need the framework up as well.

  Anne Aikman-Scalese: (13:19) I aslo thought and in fact believe it will show in the minutes that the bullet points - especially those in Annex 6 - were to be considered later.  I  believe I was told consideration of these was premature and would be done later..  This was because I  inisting on analysis of existing ICANN protocols and processes.

  Greg Shatan: (13:19) The bullets in 6 and 12 are the same.  It's just the intro that's the same.

  Anne Aikman-Scalese: (13:20) Good point Greg - I thought I was seeing the same language

  Greg Shatan: (13:20) If we view it as 2 documents, that's inconsistent with the Co-Chair's statement that we go by Annex 12.

  Greg Shatan: (13:20) We won't know until we go through the bullet points.

  Cheryl Langdon-Orr (CLO): (13:24) going through point by point is important...  yes

  Paul McGrady: (13:24) +1 Cheryl

  Paul McGrady: (13:26) Can we have the FOI up on the screen as well?

  Paul McGrady: (13:27) They have to be read together.

  Brenda Brewer 2: (13:27) One moment

  Greg Shatan: (13:28) Might consider putting the bullets in the notes.

  Greg Shatan: (13:28) So we can put the FOI full-screen.

  David McAuley (RySG): (13:30) I agree with Niels, we consider4ed this bullet

  David McAuley (RySG): (13:32) agree with Greg as well

  Tatiana Tropina: (13:33) Hi all

  Tatiana Tropina: (13:33) Agree with Greg

  Anne Aikman-Scalese: (13:33) I think we have considered the first bullet point.

  Bernard Turcotte Staff Support: (13:33) time check - 27 minutes left in call

  David McAuley (RySG): (13:36) I don't se it a a non-answer given that the bylaw 1.2(b)(vii) has to be read with this and it does point to applicable law

  David McAuley (RySG): (13:36) that is (viii)

  Tatiana Tropina: (13:37) Not me

  Tatiana Tropina: (13:37) Two of penholders think it's not been done and reflected

  Niels ten Oever: (13:38) Hello Tatiana

  Tatiana Tropina: (13:38) Hi

  Niels ten Oever: (13:38) Let's not distinguish between different members of the subgroup

  Mark Carvell  UK GAC rep: (13:39) Having considered and identified some possibles, it seems appropriate now to await responses in the public comment period on intruments that may be relevant - other ones may be suggested.  Group does not need to do anything more on this bullet at this time.

  Tatiana Tropina: (13:39) Niels I don't distinguish I just say that we didn't consider it while drafting

  David McAuley (RySG): (13:39) this might highlight one aspect of making "suggestions" - we could perhaps suggest HR instruments ICANN might consider but not say "should" in FOI

  Greg Shatan: (13:40) The question is which instruments should ICANN use?  What is our answer?

  Anne Aikman-Scalese: (13:40) AGree with David re the verb "should"

  David McAuley (RySG): (13:40) which instruments, if any

  Greg Shatan: (13:40) Is the answer none, David?

  Tatiana Tropina: (13:40) Even if none we have to consider and give an answer

  Anne Aikman-Scalese: (13:41) Agree with Mark's comments  that public comment is valuable.  I would be interested in public comment as to "should".

  David McAuley (RySG): (13:41) it could be none although I thought we agreed on UDHR, not exactly certyain - otherwise it is applicable law itslef to be considered

  Tatiana Tropina: (13:42) We ask for input that is the job of this group to do?

  David McAuley (RySG): (13:42) and universally recognized HR as required by app law

  Tatiana Tropina: (13:42) There is none Greg

  Tatiana Tropina: (13:42) We didn't consider it while drafting

  Anne Aikman-Scalese: (13:43) My main concern here is actuallly to carefully define the duty of the Directors.  I do not want to create circumstances that lead to claims against them of violation of their fiduciary duties.

  David McAuley (RySG): (13:43) yes

  Greg Shatan: (13:43) Hear you well!

  David McAuley (RySG): (13:43) Tatiana, we hear what you are tallin us

  Tatiana Tropina: (13:44) Hehe

  Anne Aikman-Scalese: (13:48) In an in-depth analysis, we have not actually answered the question which instruments ICANN "should use".  We need to either specifically consider this or ask the question in the course of public comment.

  Paul McGrady: (13:50) Would this be delegated to a small group for speed purposes?  If we have the time, I think it makes sense to schedule the next few calls just to walk through these and note the consclusions  (or indeccision) that we reach on each.

  Anne Aikman-Scalese: (13:51) Agree with Paul that this is not an exercise that should be delegated to the small group.

  Kavouss Arasteh 2: (13:51) Could the people be concise and shorten their commentsz

  Greg Shatan: (13:52) Not for speed purposes, but more for deep dive purposes.  But I'm happy to do the deep dive in the full group.

  David McAuley (RySG): (13:52) since this involves reflection rather than drafting maybe full group is best

  Paul McGrady: (13:53) A small group is just one more call in a sea of calls that are all hard to make.  I'd rather plow through as a group than to delegate it to a small group only to then go through it as a full group RE: whether or not the small group got it right.

  Greg Shatan: (13:53) We can't discard the things we've been asked to Consider, just because it might take a very long time.  It doesn't have to.

  David McAuley (RySG): (13:53) "Sea of calls' - a good and accuratye term, there are plenty

  Greg Shatan: (13:54) Paul, I'm absolutely fine with that approach as well.

  Greg Shatan: (13:54) The small group didn't try to consider the bullet points, so it could not have "gotten it right."  That was not the point of the subgroup.

  Greg Shatan: (13:55) or small group rather.

  Tatiana Tropina: (13:55) Greg +1

  Tatiana Tropina: (13:55) We didn't consider

  Paul McGrady: (13:56) The can has been kicked as far as it can be kicked and now we need to go through Annex 12 ...

  Greg Shatan: (13:56) Correct, Paul.  100% agree,

  Greg Shatan: (13:57) Let's worry about drafting after we have the discussion and conclusions about what we need to draft.

  David McAuley (RySG): (13:57) Greg +1

  Paul McGrady: (13:57) +1 Greg.  

  Tatiana Tropina: (13:57) +1 Greg again

  Greg Shatan: (13:57) Seems fine to me, Niels.

  Anne Aikman-Scalese: (13:57) Drafting is not at all an issue right now.  Need to discuss.

  Anne Aikman-Scalese: (13:58) We are NOT at drafting stage.

  Tatiana Tropina: (13:58) Me

  David McAuley (RySG): (13:58) I would volunteer for one bullet

  Greg Shatan: (13:58) I will take a bullet.

  Greg Shatan: (13:59) I think we still discuss them ina  group.

  David McAuley (RySG): (13:59) im ok either way

  Tatiana Tropina: (13:59) I would rather discuss in a group

  Anne Aikman-Scalese: (13:59) In a group.

  Tatiana Tropina: (13:59) Me

  Paul McGrady: (13:59) I'm really confused now and hope that we haven't just given up our ability to talk through these as a group?

  David McAuley (RySG): (13:59) i wll join

  Anne Aikman-Scalese: (13:59) I will join that group .

  Tatiana Tropina: (14:00) Am sure they will

  David McAuley (RySG): (14:00) ok, thanks Niels

  David McAuley (RySG): (14:00) Thanks all, good bye

  Greg Shatan: (14:00) Bye all.

  Anne Aikman-Scalese: (14:00) THanks NIels and everyone

  Markus Kummer: (14:00) Bye all!

  Bernard Turcotte Staff Support: (14:00) bye all

  Brenda Brewer 2: (14:01) Thank you all for joining today's HR meeting.

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