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Re: [council] Letter regarding Harassment / Conduct at ICANN Meetings
That is indeed a terrific resource, and in my opinion should be included
in what we send.
I think one of the problems we face as a multi-stakeholder community is
that we are not just people who attend a conference, we work together on
an ongoing basis and this is why I suggested calling the document a
harassment policy....you don't want to be caught with stalking on email
being deemed "out of scope" because it did not start at a conference,
just as one example. I appreciate the need to keep this simple and not
expand but it is not that easy, given our structure and long term
relationships.
In stating my preference for a privacy policy, I would like to explain
that the reason for this, is that creating documents related to
investigation of harassment incidents, including testimony of third
parties, immediately raises privacy issues. The Ombudsman, on his recent
blog, has alluded to privacy issues. You can of course draft a
harassment policy that deals extensively with expectations of
confidentiality, repercussions for breach of confidentiality, access to
records, etc. But it would be preferable to have a privacy policy that
deals with some of these issues, in my view. When a harassment incident
takes place in a jurisdiction that has data protection law that would
cover ICANN and its activities and records, it might be that an
individual would have rights to request all documentation relating to
them. This can be quite problematic if you have assured witnesses of
confidentiality, you have a duty to at least inform them that their
testimony could be released to the individuals concerned. Even now, if
the Ombudsman has a record system under his control housed in New
Zealand a person might be able to request all documents related to
themselves. I therefore think it prudent to set your privacy
expectations in a sound privacy policy, before venturing into an area
(harassment) where we know there is a great volume of complaints,
investigation, and counter complaints. At least this is the case in
Canada. Possibly California's law is more clear, and there is less
litigation, but it is in my view not the case that California law will
apply in all cases and venues. However, as always, I defer to the
lawyers in this regard.
Stephanie Perrin
On 2016-04-18 15:05, David Cake wrote:
I’ve suggested this source previously elsewhere - its a very useful
resource. While the creating organisation, the Ada Initiative, has
shut down, I know some people involved and would be happy to get in
touch with them for further advice if it would be useful.
Regards
David
On 18 Apr 2016, at 1:57 PM, Jennifer Gore Standiford
<JStandiford@xxxxxxx <mailto:JStandiford@xxxxxxx>> wrote:
Hello All,
Not to further jump on the bandwagon, just to restate the main
objective of this working group was to create a document that
addresses ‘Harassment at ICANN Conference/Events’. In my opinion, if
we expand the scope to include religion, political viewpoints, etc.
we will need to go back to the drawing board. Reg Levy provided a
great online source for reference on the Registrar Stakeholder
Distribution list today:
https://adainitiative.org/continue-our-work/conference-policies/
Unfortunately, the source is geared towards women, however I believe
it would be relevant to refer to it within the attached document if
and when we decide to send it to ICANN.
The source includes key items such as:
·Example of a Conference Anti-Harassment Policy
·List of Conferences that have a Policy
·Why such a Policy is needed
I realize we have received constructive input in the last 2-3 days
and it was my conclusion that the council agreed to move forward on a
submission by close of business today, Monday 4.18.16. So I am a
little unsure as to how we should proceed?
ICANN Staff, James, Councilors – thoughts on this matter?
Thank you,
Jennifer
*From:*owner-council@xxxxxxxxxxxxxx
<mailto:owner-council@xxxxxxxxxxxxxx>
[mailto:owner-council@xxxxxxxxxxxxxx]*On Behalf Of*Phil Corwin
*Sent:*Monday, April 18, 2016 12:24 PM
*To:*Volker Greimann; egmorris1@xxxxxxxxx
<mailto:egmorris1@xxxxxxxxx>; James M. Bladel; GNSO Council List;
Stephanie Perrin
*Subject:*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*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597/Direct*
*202-559-8750/Fax*
*202-255-6172/Cell*
**
*Twitter: @VlawDC*
*/"Luck is the residue of design" -- Branch Rickey/*
*From:*owner-council@xxxxxxxxxxxxxx
<mailto:owner-council@xxxxxxxxxxxxxx>[mailto:owner-council@xxxxxxxxxxxxxx]*On
Behalf Of*Volker Greimann
*Sent:*Monday, April 18, 2016 9:27 AM
*To:*egmorris1@xxxxxxxxx <mailto: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.htmlas
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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