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RE: [council] Letter regarding Harassment / Conduct at ICANN Meetings
Volker:
Respectfully, your comment makes me even more uneasy about the path we seem to
be proceeding down.
This dialogue began with a general consensus that some form of sexual
harassment policy was needed for ICANN meetings. Then it expanded to cover
other forms of verbal behavior that someone might find offensive ,
objectionable, or harassing.
Now you suggest that a policy should cover not just statements denigrating an
individual's religious preference but an affirmative statement of religious
belief. I would agree that proselyting for any spiritual outlook or belief
system is not germane to a WG's responsibilities, but the GNSO WG rules already
provide the Chair(s) with authority to take action against disruptive or
irrelevant postings.
What next will be added to the list of potential offenses? Political
statements? - try discussing the current US Presidential election without
offending someone. Not even the weather is a safe subject, given the
polarization of views over global warning.
I would hope that we can keep any list of possible verbal offenses (I am
excluding physical acts from these comments, as they are a whole other matter)
that can give rise to initiation of an investigative/adjudicatory procedure to
those that are really intentional and serious, and not one-off or boneheaded
statements for which a simple admonition and apology might resolve the matter.
We need to preserve ICANN as an open forum for expression of views.
Best to all,
Philip
Philip S. Corwin, Founding Principal
Virtualaw LLC
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From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On
Behalf Of Volker Greimann
Sent: Monday, April 18, 2016 9:27 AM
To: egmorris1@xxxxxxxxx; James M. Bladel; GNSO Council List; Stephanie Perrin
Subject: Re: [council] Letter regarding Harassment / Conduct at ICANN Meetings
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><mailto:stephanie.perrin@xxxxxxxxxxxxxxxx>
Sent: Monday, April 18, 2016 4:10 AM
To: "James M. Bladel" <jbladel@xxxxxxxxxxx><mailto:jbladel@xxxxxxxxxxx>, "GNSO
Council List" <council@xxxxxxxxxxxxxx><mailto: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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