Missing the Target: The Human Rights Push in ICANN goes off the rails

As part of the ICANN accountability reforms, civil society activists pushed to gain a commitment from the corporation to respect fundamental human rights. This appeared to be a promising part of the ICANN reforms.

IGP has always recognized that ICANN’s regulations on domain name users and registries can affect freedom of expression, free association, privacy, and due process online. Ideally, a commitment to fundamental human rights by ICANN could ensure that the organization does not pass domain name policies that violate or limit these fundamental rights. Our support for that agenda was strengthened by the fact that one of the leaders of the HR push in ICANN was the Article 19 organization, which has an excellent record in supporting freedom of expression both offline and online.

It is sad, therefore, to have to report that the human rights push in ICANN has become badly misdirected. If the current direction of Work Stream 2 continues, the HR effort will at best have no impact on ICANN’s policies and at worst could make ICANN into an even more controlling and intrusive regulatory force than it already is.

During the accountability reforms, there was significant debate over the wording of the commitment. Eventually, the recommendations on human rights proposed in the CCWG report were adopted as a Core Value using this bylaw language:

Text of the new Bylaws Core Value as adopted in May:

(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.[1]

The meaning of this core value required further interpretation as to what exactly the bylaw text means for ICANN’s policy and operations. And so Work Stream 2 of the reform process – the part that comes after the IANA transition – was mandated to come up with a “Framework of Interpretation” (FoI). The FoI would interpret different parts of the bylaw in order to translate the commitment into specific, implementable practices.

Since then, quite a few of the HR advocates within ICANN have focused their efforts upon getting ICANN to recognize something called the “Ruggie principles.” Ruggie Principles is shorthand for “The UN Guiding Principles on Business and Human Rights.” They were proposed by UN Special Representative on business & human rights John Ruggie, and endorsed by the UN Human Rights Council in June 2011. In essence, they are a set of guidelines for States and companies to prevent, address and remedy human rights abuses committed in business operations.

In other words, the Ruggie principles are focused on applying ethical standards to the supply chains, contractors and business operations of private companies. They are intended to promote a corporate obligation to avoid subcontractors or suppliers that use unpaid labor, child labor, or other abusive economic practices. They are designed to be applied to commercial producers, especially ones that sometimes have to operate in developing countries under sketchy conditions, like the oil industry, diamond miners and the like.

The Ruggie Principles are not relevant to ICANN’s substantive policies and regulations pertaining to domain names. They were not developed with organizations such as ICANN in mind. This is why all the discussions on their application to ICANN look like attempts to fit square pegs into round holes. After the workstream 2 HR team spent several calls trying to analyze their applicability, only a few parts of two of the Ruggie principles were considered as potentially applicable. Nevertheless, even now when a small part of drafting team is scheduled with the task to provide an alternative language for interpretation, there is a big push for the application of Ruggie from some members of the bigger HR group.

Domain name policies can subject domain name registrants to surveillance, rob people of the right to use generic words as domains, restrict the use of domains as forms of expression, and make domains more expensive than they need to be. That is what Human Rights advocates need to be focusing on.

Bait and switch? When human rights activists pushed their agenda in ICANN, we thought they meant an ICANN whose domain name policies do not violate or restrict fundamental human rights to free expression, privacy and due process. We were not asking that ICANN avoid the use of slave labor (aside from, ahem, its volunteers in the supporting organizations) or be turned into a body that devotes significant time and resources to investigating the business practices of its contracted parties, and possibly even non-contracted parties like ccTLD delegates.

The emphasis on the Ruggie principles diverts our attention away from ICANN policies. This diversion risks obligating ICANN to go beyond its narrow mission, and is likely to generate pushback from the industry because of the way it empowers ICANN to regulate or investigate the working conditions or subcontractors of thousands of registries and registrars. Worse, it takes all the pressure off ICANN’s policy making process. The HR focus shifts from the impact of policies to the business operations of contractors and associates or ICANN itself.

Domain name policies can subject domain name registrants to surveillance, rob people of the right to use generic words as domains, restrict the use of domains as forms of expression, and make domains more expensive than they need to be. That is what we need to be focusing on.

What HR activists should be concerned with is the need to impose constitutional limits on the policies and regulations ICANN passes, to ensure that they respect fundamental rights. As long as HR activists are using the Ruggie principles as their framework for interacting with ICANN, they are missing the target.

The best way for ICANN to respect fundamental human rights would be for all of its policies to be subjected to a human rights impact assessment before they can be implemented. HR Experts could take policies that are about to be passed and scrutinize them for their impact on privacy, freedom of expression and other internationally accepted fundamental rights. Policies that don’t meet those standards should be sent back for reconsideration.

It is to be hoped that the Workstream 2 working group on the human rights framework of interpretation can reorient itself, before all the mobilization around HR in ICANN is wasted.

[1] Full text of Section 27.2 as adopted:

“Section 27.2. HUMAN RIGHTS (a) The Core Value set forth in Section 1.2(b)(viii) shall have no force or effect unless and until a framework of interpretation for human rights (“FOI-HR”) is (i) approved for submission to the Board by the CCWG-Accountability as a consensus recommendation in Work Stream 2, with the CCWG Chartering Organizations having the role described in the CCWG-Accountability Charter, and (ii) approved by the Board, in each case, using the same process and criteria as for Work Stream 1 Recommendations. (b) No person or entity shall be entitled to invoke the reconsideration process provided in Section 4.2, or the independent review process provided in Section 4.3, based solely on the inclusion of the Core Value set forth in Section 1.2(b)(viii) (i) until after the FOI-HR contemplated by Section 27.2(a) is in place or (ii) for actions of ICANN or the Board that occurred prior to the effectiveness of the FOI-HR.