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

[Phil Corwin <psc@xxxxxxxxxxx>]

Ed:

In regard to your feedback on the points I raised, I'm in general agreement 
regarding acts that are criminal in nature.

You said:
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.

I think that's a good suggestion. ICANN has no competence to undertake a 
private investigation of a potential criminal matter; indeed, its intervention 
could hinder or contaminate an official inquiry.

Best, Philip


Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
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Washington, DC 20004
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From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On 
Behalf Of Edward Morris
Sent: Monday, April 18, 2016 8:57 AM
To: James M. Bladel; GNSO Council List; Stephanie Perrin
Subject: Re: [council] Letter regarding Harassment / Conduct at ICANN Meetings



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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