Re: [council] Letter regarding Harassment / Conduct at ICANN Meetings

[Volker Greimann <vgreimann@xxxxxxxxxxxxxxx>]

Hi all,

a recent mail on a PDP WG reminded me that we should work on a more 
general policy. While the current plans would take care of one "flavor" 
of inappropriate behavior, there are many more that would not be 
addressed by a policy focussed only on sexual harrassment. For example 
religious proselytizing has no room within ICANN either.
Best,

Volker



Am 18.04.2016 um 14:57 schrieb Edward Morris:
> James, all,
> I am in receipt of Stephanie's comments on the proposed harassment 
> letter. I encourage the Council to consider many of  these suggested 
> changes to be the equivalent of hostile amendments to the work 
> produced by our small Council working group and to reject most of 
> them,  both on procedural and substantive grounds, The document 
> produced by the small Council working group led by Jennifer is far 
> superior to one incorporating changes proposed at the last minute by 
> Stephanie and should be used as our references note going forward.
> PROCEDURAL PROBLEMS
> A note about how we have worked on this matter as a Council. At the 
> Marrakech meeting I raised the issue of sexual harassment. A small 
> working group was formed consisting of four Councillors from the NCSG 
> - myself, Stefania, Marilia, David - and one Councillor from the 
> Registrars in Jennifer. All Councillors were invited to join this 
> group. Mary Wong kickstarted the group into action with an e-mail of 
> March 25th. Jennifer immediately took the lead and on March 
> 28th produced the prototype of the document now before us. I 
> immediately suggested a few minor changes to the document, which were 
> accepted. There were 17 email exchanges amongst the members of the 
> small working group and staff prior to release of the final document 
> to the general Councll list.
> Once on the Council  list suggestions and comments  made on a timely 
> basis by Donna and Phil, were acknowledged by Jennifer, and 
> incorporated into the document. Stephanie responded on April 6th with 
> some general comments that I believe could are best summarised by this 
> part of her post:
> /"It is my view that we need a privacy policy more than a harassment 
> policy because I feel that inappropriate conduct is already in fact 
> covered by by our acceptable conduct policy"/
> This represents a completely different view than that adopted by the 
> small working group. I personally reject both the premise and the 
> conclusion. Harassment is a specific type of conduct that has 
> connotations beyond the term "inappropriate". It is not adequately 
> covered by current policy. I should note that although 
> Stephanie's  comments have been on list for twelve days, no one other 
> Councillor has posted agreement with Stephanie's view that ICANN 
> should deal with the situation at hand through it's acceptable conduct 
> policy.
> As Stephanie's suggestions were a bit different in format than the 
> other comments and not as easy to adapt to the document at hand on 
> April  6th Jennifer asked Stephanie to produce a red line version of 
> her comments. On April 7th Stephanie agreed. This project had a 
> completion deadline of April 14th. No other Councillor objected to the 
> small group proposal on list between the 7th and 14th. Then on our 
> monthly call  Stephanie verbally objected to our draft, the time frame 
> was  extended and we waited through the weekend for her input. 
> Finally, eleven days after she agreed to produce a red line document, 
> four days after the initial project deadline, Stephanie has 
> responded. Thank you for your input, Stephanie.
> If this material had been produced in a timely manner it could have 
> stimulated discussion on the list, it could have stimulated discussion 
> on our call. Instead, I view this as no more than a  way of almost 
>  hijacking the process, I'm sure without any malicious intent - 
> Stephanie has impeccable integrity,  at the very end so in the end 
>  the positions she espouses are adopted out of necessity rather than 
> as a result of considered debate. I'm somewhat resentful that I now 
> have to spend a few hours of my Monday responding to wholesale 
> suggestions of change that were promised weeks earlier. If the Council 
> is to allow this type of behaviour  then why would any of us join 
> small working groups? Why not just wait until the end, past the 
> deadline, of all projects and then object to things when you have the 
> most leverage? I don't believe this is an optimal way to conduct our 
> business, whatever the reason.
> I also take exception to Stephanies claim that "I attach a markup 
> version of both documents.  I have circulated them to the NCSG". As 
> far and I can tell, that simply is not true. I have not seen these 
> documents prior to this post to the Council list. I've checked both 
> the NCSG discussion list and the archives of the NCSG policy committee 
> list and no such "circulation" seems to have occurred. Those are our 
> only two official mailing lists in the NCSG. I also note that the 
> majority of NCSG Councillors were on the small team that Jennifer so 
> aptly led. The NCSG had ample opportunity as a group to object to the 
> proposed reference note in a timely manner and chose not to do so.
> SUBSTANTIVE PROBLEMS
> 1. Stephanie has created at the outset a list of questions. Some of 
> these have suggested outcomes that we did consider early in the small 
> group and rejected, others would have been appropriate to consider at 
> that time. Stephanie chose not to join this group and to challenge our 
> decisions only at this late date.
> -
>
>  1. While events at ICANN55 focused on the need for a Conference
>     Harassment Policy, would it not be prudent to create a Harassment
>     Policy that covers all of ICANN’s activities?
>
> ?
> No.
> Let's be clear: ICANN already has a variety of harassment policies. 
> There is a harassment policy, required by California law, that covers 
> employees. There is the Expected Standards of Behaviour which may or 
> may not cover some forms of harassment. That policy was found to be 
> flawed in the most recent highly publicised situation. I should note 
> that both parties in that matter support the development of a 
> conference sexual harassment policy.
> ICANN is an outlier in not having a conference harassment policy. The 
> International Association of Conference Centres recommends as standard 
> industry practice that a "conference specific, clearly defined policy 
> against harassment  be posted at prominent entry points". I see no 
> reason for ICANN to reject standard industry practice in this regard.
> Meetings introduce the concept of "clear and present danger" into the 
> equation. The standards for behaviour of those in close physical 
> proximity to one another may necessarily need to be  bit more 
> stringent than that of a more general policy.
> Harassment itself is also different than general conduct standards 
> in that for harassment to occur it must be directed towards a specific 
> individual. There is also a mens rea component of harassment not 
> present in most of the items contained in the Expected Standards.
> ICANN is best served by a conference specific harassment policy with 
> clearly defined roles and responsibilities.
> That said, I certainly would have no objection if a phrase akin to "we 
> hope that the development of  a conference harassment policy is only 
> the first step towards developing a wider policy against harassment in 
> all of ICANN's activities and affairs" were added to the letter if 
> that would meet with Stephanie's approval.
> 2.    If not, how does one deal with harassment that continues after 
> an event, or starts online or through conference calls, meetings, etc. 
> outside the actual face to face conferences?
> Through normal processes. This is not an either / or situation. Some, 
> including myself, believe that the lack of a conference specific 
> policy is a hole in an otherwise satisfactory policy requiring civil 
> behaviour. I should also note that ICANN is not a state. There are 
> also opportunities to deal with these matters through normal channels. 
> However, given that ICANN does hold meetings in countries where 
> harassment may be permitted legally, a specific conference harassment 
> policy does provide some de facto  assurance of some protection within 
> the meeting site. It is a challenge. See, for 
> example: http://www.dailymail.co.uk/news/article-3534495/US-woman-jailed-insulting-United-Arab-Emirates.html 
> as to what we are facing going forward.
> 3. What is the purpose of a harassment policy, and how does it 
> intersect with the existing standards of behavior policy?  
> (https://meetings.icann.org/sites/default/files/icann-standards_of_behavior-jul14.pdf
> The purpose of a conference harassment policy is to create policy 
> which produces an environment in which all attendees are comfortable 
> in and is one which attendees are free from harassment of any kind. It 
> does so by delineating specific conduct that is prohibited and by 
> establishing clear reporting obligations and requirements. This is far 
> greater than the current ESB requirement that everyone act civilly 
> towards one another.
> I would also opine that the current policy does not work when applied 
> to this type of incident   and the lack of a conference policy of a 
> specific nature exposes ICANN legally.
> 4./How does one differentiate between inappropriate remarks or 
> actions, and harassing, demeaning, and abusive behavior?  Many 
> harassment policies scope the offensive activity or actions in terms 
> of repeated behavior that forms a pattern, or if only a single event, 
> an event that is of very significant proportions (eg physical 
> contact).  A policy must be clear enough that when Implementation 
> guidance and training is provided, our global multicultural audience 
> will be able to understand clearly when conduct and speech are 
> unwelcome or inappropriate, and when they are very offensive to normal 
> sensibilities and constitute harassment.  Defining normal will be 
> challenging./
> These question largely go to implementation and are beyond the scope 
> of our current, initial, policy reference point.
> Regarding Stephanies criticisms of specific points contained in the 
> "ICANN Conference Harassment Policy - Key Points" distributed by James 
> on 15 April at 22:55 UTC:
> 1. I support the text as written without any changes, although 
> certainly believe it could be approved. Please remember this is a mere 
> reference point.
> 2. As harassment by definition is directed at an individual I reject 
> Stephanies concerns for the section beginning "inappropriate 
> communication".
> 3. As Stephanie rightly notes ICANN as a private corporation has no 
> control over whether an accused party seeks legal redress for any 
> perceived harm. The prohibition against retaliation is a necessary 
> clause that encourages victims to come forward but as with all 
> policies written by a private corporation the effect of said policy is 
> limited to the corporations remit. That is true of this entire 
> document. I woulds not want to limit the language as operation of law 
> already constrains it's reach and I would prefer that the 
> anti-retaliatory language be as broad as legally possible. The current 
> language meets that goal. I should note the same concerns have been 
> expressed concerning whistleblower policies and have been  found to be 
> lacking.
> 4. I reject Stephanie's assertion that you need to "train a couple of 
> thousand conference attendees to recognise and prohibit this type of 
> conduct". That is FUD. This policy empowers those who witness such 
> behaviour to report it given that often the power relationship 
> involved makes it impossible for the victim to report it. I note this 
> is mere reporting; no judgement as to validity of the complaint is 
> being made.
> Although I would prefer to keep the language as is, I would have no 
> objection to changing "should immediately" to "are encouraged to 
> immediately" if that would address some of Stephanie's concerns.
> 5. I not only reject Stephanie's assumption that the Ombudsman is or 
> should be the first line for reporting, our small group, at my 
> request, deleted this concept from our proposal. First, the Ombudsman 
> in not empowered by the ICANN Bylasws to conduct investigations into 
> relations between parties that have no direct contractual relationship 
> with ICANN. That he did in the most recent publicised incident is 
> being considered for litigation (against ICANN) by one of the parties 
> involved and has prompted me to write a letter to Steve Crocker asking 
> for an explanation / justification (response yet to be received). 
> There are people within ICANN corporate in the human relations 
> department who have expertise in this area and who I believe are far 
> better qualified to handle these types of complaints than the 
> Ombudsman. That said, I would prefer for ICANN corporate, not us,  to 
> establish the reporting structure in line with other responsibilities 
> and expertise of their employees.
> 6. The line "ICANN will protect the confidentiality of individual(s) 
> reporting suspected violations of the incident(s) to the extent 
> permissible and with due regard for procedural fairness" is good 
> language and should be retained. Stephanie's proposed substitution is 
> too limiting ('investigations and interviews conducted under this 
> policy"), too defined ("confidential") and would expose ICANN to 
> greater legal liability should a party be dissatisfied. The text in 
> the proposed document is read as a "best effort" clause and would not 
> expose ICANN legally except in the case of gross negligence.
> 7. I agree with the clause requiring staff members who become aware of 
> "any form of harassment or potential incidents": to report them to the 
> front line employee given responsibility for these matters. This is 
> not just good policy in terms of stopping harassment, this is good 
> policy in terms of limiting ICANN's exposure to lawsuits resulting 
> from such incidents.
> I do not believe putting links to nonspecific government harassment 
> policies has any value whatsoever. ICANN is not a government, it is a 
> private corporation. We are not trying to create, in this action, a 
> comprehensive harassment policy, but rather a conference harassment 
> policy. Links to specific conference harassment policies, of course, 
> would be most welcome if anyone wants to spend the time to find and 
> link to them.
> As stated, I would prefer to keep the letter and reference document as 
> written. I respectfully disagree with Stephanie on many of her 
> comments and by timing her response so late there really isn't time to 
> engage in a full conversation as would be desirable.
> However, if it is deemed permissible for Stephanie's last minute 
> changes to the proposed document to be accepted over my objection then 
> I respectfully request the following additional changes be made:
> - Addition of an opening clause
> ?This policy aims to strengthen and safeguard the ICANN working 
> environment so that it is a welcoming and enabling diverse environment 
> for stakeholders from all backgrounds.
> - Change the word 'colour' to 'ethnicity'
> - Exclude the word 'disability', as that term is now considered to be 
> somewhat derogatory'; handicap should suffice
> - change 'sex' in all instances to 'gender'; 'sex' has connotations 
> that does not fully describe the wide array of possible sexual 
> identification categories that 'gender' does;
> -, include 'stalking' as a prohibited offense
> Again, my preference would be to go with the document as is. I will 
> remind everyone that this is merely a reference note to provide an 
> example of what a policy might look like. There will be ample 
> opportunity for the community to weigh in on the actual proposed 
> policy at a later date.
> I note also that Phil has made some additional recommendations today 
> to  strengthen the proposal. My principle objection is timing 
> (although in a different procedural environment I would consider them 
> friendly amendments)  - I am generally in agreement , at least in 
> part, with all but one of his proposed changes. I will note that 
> Phil's earlier recommendations have been incorporated into the 
> document. His current proposals and my responses:
> /1. What procedural due process protections will be established for 
> parties to the dispute, and what standard of proof shall be required 
> for an adverse finding/.
> I agree that this would be a useful addition to the accompanying 
> letter as a bullet point.
> /2. I believe we need a standard that requires some intent on the part 
> of the alleged harasser to demean, denigrate, harass, etc./
> Harassment by legal definition has a mens rea component. I would not 
> object to making this clear in the policy document but do not believe 
> it is necessary.
> /3. policy needs to be further developed to make clear that conduct of 
> a criminal nature (assault, indecent exposure, rape) is outside the 
> scope of any harassment policy and is to be reported by ICANN to the 
> proper authorities./
> We need to be careful here. It may not be clear whether an activity is 
> or is not illegal. I would not want to create any legal obligation for 
> ICANN to report any alleged crime. I'd suggest that rather than put 
> this in out policy proposal we add another bullet point to the letter 
> akin to:
> - We believe procedures need to be developed so that those matters 
> that are  violations of law are reported immediately by ICANN or the 
> complaining party to the proper authorities.
> I think we need to note this but I would be hesitant in a rushed 
> manner to come up with exact wording within the proposed "key points". 
> I'm fine with a bullet point in the letter.
> /- “You should report any actions that you believe may violate this 
> policy no matter how slight the actions might seem” I would suggest 
> deleting everything after the word “policy”, leaving more discretion 
> to a target or witness to decide when to invoke whatever procedures 
> may be created to deal with harassment./
> I agree.
>
> /-Finally, I would suggest that the term “ICANN Conference” needs to 
> be clearly defined to make clear its breadth. That is, does it only 
> cover incidents that occur  at the official meeting site or are other 
> locations and activities covered; such as meeting sponsor social 
> events, official meeting hotels, etc.?/
> Good point. I would limit the policy to the meeting itself, I don't 
> believe ICANN should limit the free expression rights of sponsoring 
> organisation, but am open to other ideas.
> **
> *WAY FORWARD*
> The GNSO is late in making this submission. We do need to act now.
> My preference would to have had this conversation during the past few 
> weeks these documents have been posted and open for participation.
> I have no objection to changes in the documents to which there is no 
> on list opposition. I have, however, objected to several of the 
> changes proposed for substantive policy reasons. These documents have 
> been available and open for comment for about two weeks. The deadline 
> for this project was supposed to be last Thursday. Unless more 
> widespread opposition is voiced, I would suggest the document as 
> presented in James weekend e-mail be considered approved and sent. 
> That said, I have no objection to requested changes by Stephanie and 
> Phil that have not met with any opposition by EOB today to be 
> incorporated in the final document. Where challenged, however, I 
> believe we should stick with the original language in the absence of 
> more widespread opposition.
> I want to thank all my my colleagues for their work on this and, in 
> particular, Jennifer, whose leadership and hard work have made this 
> happen. I have very much enjoyed working with her.
> Respectfully,
> Ed
> ------------------------------------------------------------------------
> *From*: "Stephanie Perrin" <stephanie.perrin@xxxxxxxxxxxxxxxx>
> *Sent*: Monday, April 18, 2016 4:10 AM
> *To*: "James M. Bladel" <jbladel@xxxxxxxxxxx>, "GNSO Council List" 
> <council@xxxxxxxxxxxxxx>
> *Subject*: Re: [council] Letter regarding Harassment / Conduct at 
> ICANN Meetings
> Thanks for circulating this James.  I agree with Phil's recent 
> comments, but I attach a markup version of both documents.  I have 
> circulated them to the NCSG, but I think it is fair to say there are 
> divergent views on this topic, so these are my own personal comments.  
> As I have expressed, I think we are rushing into a complex area here 
> and I do hope that once Akram comes up with a draft, there will be 
> ample opportunity to discuss and refine the document.
> Kind regards
> Stephanie Perrin
> On 2016-04-15 16:18, James M. Bladel wrote:
> > Council Colleagues -
> > As discussed during yesterday’s call, we intend to send a high-level 
> > letter to ICANN (Akram) on behalf of the GNSO Council, thanking him 
> > for his blog post and drawing his attention to statement from the 
> > NCUC and the draft policy created by Jennifer and others.  (On this 
> > latter point, I’ve edited the Key Points document to reflect the most 
> > recent comments on the thread).
> > If you have any comments or edits to the letter or “Key Points” 
> > document, please post these to the list by EOD Monday, 18 APR.  Edits 
> > could include changes/additions to the language, as well as inclusion 
> > of other materials or links to statements from other groups.
> > The target is to post this letter by Tuesday, 19 APR.
> > Thanks—
> > J.
--
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