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Press Release: Users’ rights and interests should be balanced with those of IP rights-holders: Global Congress
https://cis-india.org/a2k/blogs/press-release-users2019-rights-and-interests-should-be-balanced-with-those-of-ip-rights-holders-global-congress
<b>The Global Congress on Intellectual Property and Public Interest is being held at the National Law University, Delhi, on 15-17 December 2015. The global event is jointly organized by CIS, NLU Delhi, Open A.I.R., CREATe, Columbia University and American University. Below is the Press Release from Day 2 of the Global Congress.</b>
<p style="text-align: center; "><strong>Press Release</strong></p>
<p style="text-align: center; "><strong>16 December 2015</strong></p>
<h3 style="text-align: center; "><strong>Users’ rights and interests should be balanced with those of IP rights-holders</strong></h3>
<p style="text-align: justify; ">Today, on the 2<sup>nd</sup> day of the Global Congress on Intellectual Property and Public Interest at NLU-Delhi, a range of issues were discussed across the parallel tracks. The <strong>Access to Medicines </strong>track opened with a keynote address by the honourable Justice Kirby, former judge of the High Court of Australia and current member of the UN Secretary General’s High Level Panel on Access to Medicines. The <strong>Openness </strong>track saw discussions on collaborative innovation, the future of openness and access to education, along with cross-sectoral perspectives on openness.</p>
<p style="text-align: justify; ">In the <strong>Intellectual Property and Development </strong>track, the discussions centred around the intersection of traditional knowledge, geographical indicators and indigenous rights, on agriculture and plant varieties with specific references to the Indian position, and an exploration of the global South’s research networks on IP, innovation and development. The track focused on a range of themes, including the development issues that arise from varying approaches to intellectual property, i.e., closed or open approaches, depending on the limitations placed on the sharing and use of knowledge produced with public funding.</p>
<p style="text-align: justify; ">The <strong>User Rights </strong>track is closely aligned with openness. Today, the track explored issues of copyright reform and digital democracy, along with concerns of increasing propertisation of data. A discussion around trade agreements and their impact and enforcement on copyright and the Internet allied with the above sessions.</p>
<p style="text-align: justify; ">Speakers shared their views on a variety of issues:</p>
<h2><strong><span>Access to Medicines</span></strong></h2>
<p style="text-align: justify; "><strong>Justice Michael Kirby</strong>, former judge of the High Court of Australia and its longest serving judge, spoke on the changing challenges in the ‘access to medicine’ movement. There has been a sea change in the access to anti-retroviral drugs, he said, but also increasing challenges.</p>
<p style="text-align: justify; ">“The key question in access to medicines is this: How do you provide just returns for inventors, while at the same time respecting the universal right to essential healthcare? Developing states like India are increasingly at risk. In 2001, the UN Special Rapporteur on Access to Medicines expressed his concern about the fact that TRIPS flexibilities open to developing states are rarely used. This concern is deepening with the trend of United States, Japan Switzerland and other European countries convincing poorer states to give up their TRIPS exceptions and flexibilities.”</p>
<p style="text-align: justify; "><strong>Anand Grover</strong> of Lawyers Collective was concerned that intellectual property is not delivering on its stated objectives, particularly in developed states.</p>
<p style="text-align: justify; ">“It is important,” he said, “to keep checking whether objectives are met through the patent system. Earlier, generic manufacturers were keen to employ a strategy that invited conflict from patent-holders and pharmaceutical companies. But increasingly, their strategies are backfiring; courts are leaning towards granting injunctions against generic manufacturers. This is a real concern.”</p>
<p style="text-align: justify; "><strong>Shiba Phurailatpam </strong>of the Asia-Pacific Network of People living with HIV/AIDS spoke of the increasingly dismal scenario of access to affordable medicines in middle-income countries:</p>
<p style="text-align: justify; ">“Multinational companies are using World Bank classifications of GDP to deny affordable medicines to millions in the developing world. With the profits they are making in these countries, they then lobby their governments to push TRIPS-plus measures in our countries through FTAs and bilateral pressure. Meanwhile they are also entering into restrictive voluntary licenses with key Indian generic companies that exclude middle-income countries. 20 years of TRIPS has only strengthened pharmaceutical corporate power over the lives and health of patients. If we are serious about universal health care the monopolies on medicines have to end.”</p>
<h2><strong><span>Openness</span></strong></h2>
<p style="text-align: justify; ">“The digital environment cannot be developed without an important agenda on open policy and copyright reforms,” said <strong>Carolina Botero</strong> of the Karisma Foundation.</p>
<p style="text-align: justify; "><strong> </strong></p>
<p style="text-align: justify; "><strong>Lawrence Liang</strong>, legal researcher and expert on the practice and ethics of intellectual property and openness, said,</p>
<p style="text-align: justify; ">“Over the past decade and a half, the language of openness and ‘Access to Knowledge’ has emerged as an important counter to the dominant proprietary and protectionist approach of the global IP regime. By shifting the focus from proprietary systems to open ones, and from control to equitable access, the openness frame has created a political and ethical language with which people could redress the harmful effects of strong IP regimes. Open systems of knowledge production and dissemination such as Wikipedia and Open Access journals could play a key role in helping developing countries gain access to learning materials and knowledge which are locked into expensive databases. In that sense openness is an important political strategy to address questions of equity and distributive justice in the information era.”</p>
<p style="text-align: justify; "><strong>Alek Tarkowski</strong>, Director of Centrum Cyfrowe Projekt in Poland, concurred,</p>
<p style="text-align: justify; ">“Open licensing models and modern copyright rules are complementary from the perspective of ensuring freedom of education."</p>
<p style="text-align: justify; "><strong> </strong></p>
<p style="text-align: justify; "><strong>Mishi Choudhary</strong>, Executive Director of SFLC.in, said that</p>
<p style="text-align: justify; ">“The government of India is right in embracing Free and Open Source Software, and in encouraging free sharing enabled by the suite of Creative Commons licences. It is crucial to understand that intellectual property is not an end in itself. The 21<sup>st</sup> century needs innovation policy and collaborative innovation, not IP maximalism.”</p>
<h2><strong><span>Intellectual Property and Development</span></strong></h2>
<p style="text-align: justify; "><strong>K.M. Gopakumar</strong>, legal advisor and senior researcher at Third World Network, said,</p>
<p style="text-align: justify; ">“The current IP regime prioritises the rights of intellectual property-holders without addressing development needs. A change in this <i>status quo</i> is the need of the hour. There is an urgent need for governments, specially in developing countries, to interrogate the international IP regime to achieve sustainable development goals, instead of simply following the propaganda of transnational corporations and their home governments.”</p>
<p style="text-align: justify; "><strong>Lucienne Abrahams</strong>, Director of the LINK Centre for Digital Transformation in South Africa, argued that,</p>
<p style="text-align: justify; ">“Innovation to produce more effective medicines for dread diseases and pandemics, to produce clean technologies, and digital technologies, in the high technology hubs forming across the African continent, the Asian continent and other developing regions of the world, requires open innovation approaches to keep up with the demand of more than 4 billion people for new technologies to enhance quality of life and to address conditions of dire poverty. Patents and copyright provide too meager opportunities for development-oriented innovation.”</p>
<h2><strong><span>User Rights</span></strong></h2>
<p style="text-align: justify; "><strong>Claudio Ruiz</strong> of Derechos Digitales spoke of the need for greater engagement between advocates and scholars towards openness:</p>
<p style="text-align: justify; ">“There needs to be a better connection between advocates and scholars towards openness, and therefore, develop a better Intellectual Property regime, especially for developing countries. The Users Rights track at the Global Congress is a great gathering to connect those worlds and therefore to fill the existent gaps in terms of research and advocacy.</p>
<p style="text-align: justify; ">“One of the most important challenges we are facing today is to fight existing narratives on intellectual property. Today, these are considered the only way to enhance and protect creation of content and culture. But new developments, especially those connected with technology and the Internet, are a huge opportunity to create new narratives around this topic and to create a safer space for users around the world who are seen today as pirates and copyright infringers. The last 40 years’ of international regulation on copyright has been mainly driven by private interest of copyright owners, the users and the general public being alien to these discussions. The development of the Internet today creates a great opportunity to connect users and the general public with the international regulation of copyright. Copyright regulation is not just about content owners, but about access to knowledge and information for everyone. That implies the need to address public interest as the main topic and not as a marginal one.”</p>
<p style="text-align: justify; ">“One of the most important issues for India and for the world today,” said <strong>Prabir Purkayastha</strong> of the Knowledge Commons Collective, “is the question of data rights. The world is grappling with these. The Internet economy today is based on converting personal information into private property. Data rights are critical from the perspective of privacy, and also whether data rights should constitute property rights.”</p>
<p style="text-align: justify; ">*<br /><br />Photographs of the speakers can be found at this link: https://drive.google.com/folderview?id=0B60BN7sFZRQFSzNFSERkTmtrcEE&usp=sharing.<br /><br />For more information, please contact me at geetha@cis-india.org.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/press-release-users2019-rights-and-interests-should-be-balanced-with-those-of-ip-rights-holders-global-congress'>https://cis-india.org/a2k/blogs/press-release-users2019-rights-and-interests-should-be-balanced-with-those-of-ip-rights-holders-global-congress</a>
</p>
No publishergeethaGlobal Congress2015-12-17T08:40:05ZBlog EntryPress Release: Medicines should not bankrupt patients or public health systems: Access to medicines at the Global Congress
https://cis-india.org/a2k/blogs/press-release-medicines-should-not-bankrupt-patients-or-public-health-systems-access-to-medicines-at-the-global-congress
<b>The Global Congress on Intellectual Property and Public Interest is being held at the National Law University, Delhi, on 15-17 December 2015. The global event is jointly organized by CIS, NLU Delhi, Open A.I.R., CREATe, Columbia University and American University. Below is the Press Release from Day 1 of the Global Congress.</b>
<p style="text-align: justify; "><strong>PRESS RELEASE<br />DECEMBER 15, 2015: DAY 1</strong><br /><br /><span style="text-decoration: underline;">Medicines should not bankrupt patients or public health systems: Access to medicines at the Global Congress</span><br /><br />No wealth? No health, then!<br /><br />Today, on the 2nd day of the Global Congress on Intellectual Property and Public Interest, access to medicines has been a crucial theme. All the more so, since the UN Secretary General’s High Level Panel on Access to Medicines had its first meeting on December 11, 2015. At a critical crossroads for access to medicines, we are delighted to welcome Justice Michael Kirby, former justice of the High Court of Australia and a member of the High Level Panel, as a keynote speaker at the Global Congress. Justice Kirby will be speaking on 16 December 2015, the 3rd day of the Congress.<br /><br />On day 1, reflecting on the critical questions in the ‘access to medicines’ movement, <strong>Matt Kavanagh</strong> of HealthGAP and University of Pennsylvania, said,<br />“In high-, middle- and low-income countries, people are going without access to new medicines for many disease areas including HIV, hepatitis C and cancer. This is because a year’s worth of meds can cost many times more than a year’s salary. This is driven by an IP system that is out of sync with the needs of the people. We are now seeing a global reckoning of how to reign in maximalist rights for intellectual property holders in favour of models that balance innovation, health and access.”<br /><br /><strong>Dr. Germán Velásquez</strong>, Special Advisor for Health and Development at South Centre, agreed that,<br />“There has been a total failure in the model involving pharmaceutical patents. This is both an important problem and there is an urgent need to find alternatives to the patent system. The issue,” he said, “is the lack of an international authority. The World Health Organization no longer has teeth. What we need is a binding international treaty to tackle this crisis. Developed countries argue against this by claiming it will be financially burdensome for them, but a successful treaty on medical R&D would lead to better and more affordable medicines for everyone.”<br /><br /><strong>Judit Rius</strong> of Médecins Sans Frontiéres concurred,<br />“There is ample evidence that the current intellectual property system has failed not only to deliver innovation, but also access. Prices of medicines are rising globally. The threats are more dire than ever with the Trans-Pacific Partnership (TPP). It contains a very aggressive and dangerous IP-maximising agenda that will endanger access to medicines and increase drug prices for the whole of the ASEAN region, and potentially at the global level. Not only this, but India is under immense pressure to abandon the public health safeguards that have made it the ‘pharmacy of the developing world’. We should be looking for global solutions, and for that, India is critical and this Congress is pertinently timed.”<br /><br />The TPP and its IP-maximising agenda weigh heavy on the minds of many experts. <strong>James Love</strong>, Director of Knowledge Ecology International (KEI), a human rights group that works on intellectual property rights and innovation, said,<br />“Trade agreements that expand and extend drug monopolies create policy-induced inequality in health. Governments need to resist measures that increase drug prices, but also fashion alternative frameworks for financing innovation, based upon the delinkage of R&D costs from drug prices."<br /><br />The TPP is imposing US-centric standards on the rest of the world, said <strong>Burcu Kilic</strong>, Legal and Policy Director for Public Citizen’s Global Access to Medicines Program.<br />“Being here and discussing 20 years’ of TRIPS, it becomes clear that the intellectual property agenda has changed a lot. Today, we discuss not only TRIPS, but also the TPP, which is a ‘made-in-America’ agreement regulating IP. It seeks to introduce what it calls “21st century high standards”, but the evidence is clear that those higher standards on IP will result in lower standards of health and reduced access to medicines.”<br /><br /><strong>Dr. Susan K. Sell</strong>, intellectual property expert and Professor of Political Science and International Affairs at George Washington University, spoke of dangerous trends in access to medicines.<br />“The rise of investor-state dispute mechanisms is the ‘camel’s nose inside the tent’ in access to medicine,” said Dr. Sell. “The Eli Lilly case in Canada is important to IP rights-holders. They are trying to use a non-transparent channel to get public health rules struck down.”<br /><br /><strong>Anand Grover</strong> of Lawyers Collective said, “Inter-state dispute resolution systems under BITs are private, non-transparent entities which are taking decisions that impact health and welfare.” Also, “product patents lead to monopoly and exorbitant prices, and process patents lead to relative competition. This is a message that is being lost in a lot of governments, including ours.”</p>
<p style="text-align: justify; "><strong>Dr. Amit Sengupta</strong> of the Delhi Science Forum offered his views on the impact on India. “At the moment, there are principal shifts in public policy in India, with impacts on the generic drugs industry. The ‘pharmacy of the global South’ is under threat,” said Dr. Sengupta, “and this affects not only India, but also those in need in other states as well. The Global Congress is very relevant, in that we perceive India under pressure to ensure patent protection, while other states move towards emulating India’s health safeguards.”<br /><br />*<br /><br />Please find photographs of some of the quoted speakers in this folder:<br />https://drive.google.com/folderview?id=0B60BN7sFZRQFVGtZWDQ3c25MbDg&usp=sharing.<br /><br />For further information, please contact:<br />Matthew Kavanagh: mkav@sas.upenn.edu<br />Burcu Kilic: bkilic@citizen.org<br />Geetha Hariharan: geetha@cis-india.org</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/press-release-medicines-should-not-bankrupt-patients-or-public-health-systems-access-to-medicines-at-the-global-congress'>https://cis-india.org/a2k/blogs/press-release-medicines-should-not-bankrupt-patients-or-public-health-systems-access-to-medicines-at-the-global-congress</a>
</p>
No publishergeethaGlobal Congress2015-12-17T08:33:54ZBlog EntryPress Release: India to Host 4th Global Congress on Intellectual Property and the Public Interest
https://cis-india.org/a2k/blogs/press-release-india-to-host-4th-global-congress-on-intellectual-property-and-the-public-interest
<b>The Centre for Internet and Society (CIS) is happy to announce that 4th edition of the Global Congress will be held at the National Law University, New Delhi (NLU-D) on 15-17 December 2015. The Congress is jointly organised by CIS, NLU-D, Open A.I.R., CREATe, Columbia University and American University.
</b>
<p style="text-align: justify; ">In October this year, the 7-year-long negotiations leading up to the Trans-pacific Partnership (TPP) came to an end. The pluri-lateral TPP has not received the coverage it deserves; its provisions do more harm to users and developing countries than are easily spotted. For instance, the TPP has an anti-FOSS clause, which may prevent and prohibit governments like India from adopting open access and FOSS mandates in research.</p>
<p style="text-align: justify; ">This should cause public outrage. FOSS (Free and open source software), which allows users to freely use, study, adapt and modify the source code, plays a crucial role in access to knowledge and information. Many states, including India, mandate the use of FOSS in research and make open access mandatory. For instance, an IIM study says that India could save Rs. 8254 crores by implementing FOSS in schools and other institutions. But with the TPP, all this could change.</p>
<p style="text-align: justify; ">Access to knowledge is not the only sufferer. With our progressive patent regime, India is often called the pharmacy of the world. Indeed, we may go so far as to say that the poor depend on India for generic, affordable drugs. But the global story is far from India’s success. In many states, the pharmaceutical industry’s stronghanded lobbying has had drastic impacts on access to medicines. A disheartening exemplar is Martin Shkreli, the CEO of Turing Pharma and KaloBio Pharmaceuticals. To public outrage, Mr Shkreli announced an astronomic hike in the price of benznidazole, a drug commonly used in the treatment of Chagas diseas. Mr Shkreli plans to increase prices from US $50-$100 for a typical treatment, to US $60,000-100,000. What is worse: Mr Shkreli is neither the first nor the only man in the price-hike arena.</p>
<p style="text-align: justify; ">Intellectual property laws are meant to balance innovation and access, serving the interests of rights-owners and users alike. But today, global intellectual property regimes prioritise the interests of rights-owners, often neglecting the consequences on users and the general public. The result is expensive barriers to access to medicines, scientific and academic scholarship, and technologies for development.</p>
<p style="text-align: justify; ">The <strong>4<sup>th</sup> Global Congress on Intellectual Property and Public Interest</strong>, the first gathering in Asia of over 500 public interest-oriented intellectual property practitioners from across the world, seeks to balance users’ rights and interests with those of rights-owners. It brings together research, civil society, industry and regulatory and policy-making communities for active, intense engagement on key public-interest intellectual property issues</p>
<p style="text-align: justify; "><strong>The Centre for Internet and Society</strong> (CIS) is happy to announce that 4<sup>th</sup> edition of the Global Congress will be held at the National Law University, New Delhi (NLU-D) on 15-17 December 2015. The largest ever in Asia, the Congress is jointly organised by CIS, NLU-D, Open A.I.R., CREATe, Columbia University and American University.</p>
<p style="text-align: justify; ">The 4<sup>th</sup> Congress is themed around “<strong>Three Decades of Openness; Two Decades of TRIPS</strong>” and will be organised in four parallel ‘tracks’ of (1) Openness, (2) Access to Medicines, (3) User Rights, (4) IP and Development. The Congress seeks to produce three outcomes — <i><span>first</span></i>, the mobilization of existing scholarly research directly into the hands of civil society advocates, business leaders and policy makers, leading to evidence-based policies and practices; <i><span>second</span></i>, the collaborative identification of urgent global and local research priorities towards generating joint research/advocacy agendas; and <i><span>third</span></i>, the solidification of an inter-disciplinary, cross-sector and global networked community of experts and practitioners focused on the public interest aspects of Access to Knowledge policy and practice.</p>
<h3 style="text-align: justify; ">Distinguished Speakers and Scholars</h3>
<p style="text-align: justify; ">We are delighted to host a distinguished group of keynote speakers with a wide range of expertise. The Congress will open with plenary sessions featuring keynote speakers such as Prof. (Dr.) Ranbir Singh, Vice Chancellor of NLU-D, Mr. G.K. Raghavendar, Joint Secretary, Department of Industrial Policy and Promotion, Prof. (Dr.) Hong Xue, Director of the Institute for Internet Policy and Law at Beijing Normal University, Dr. Michael Geist, Canada Research Chair in Internet and E-Commerce Law at the University of Ottawa, and Dr. Nagla Rizk, Founding Director of the Access to Knowledge for Development Center (A2K4D) at the School of Business, The American University in Cairo.</p>
<p style="text-align: justify; ">Throughout the Congress, participants will break into rooms for theme-specific presentations, workshops and panel discussions. In a decentralised, democratic manner, experts in the field will curate thematic, problem-based discussions in parallel ‘tracks’ to explore content.</p>
<p style="text-align: justify; ">In an interview prior to the Congress, several experts shared their views on the burning issues in intellectual property. Sharing <a href="http://global-congress.org/blog/leading-up-to-the-gcip-a-chat-with-shamnad-basheer">his views on access to medicines</a>, Prof. Shamnad Basheer, founder of SpicyIP said, “The gap between generic interests and patient interests are widening. As a result of this, there is increasing pressure on civil society to fight the good fight and continue opposing frivolous pharma patents. Also, we need to look into the specifics and determine whether the innovation brought forth by an entity really furthers personal interests or the interests of the community or society at large. Good faith is a large part of this equation and it can help determine if what one is doing is in larger public interest or private interest.”</p>
<p style="text-align: justify; ">On the same issue, Prof. Susan Sell from George Washington University <a href="http://global-congress.org/blog/leading-up-to-the-gcip-a-chat-with-susan-k-sell">said</a>, “There are big differences between NGOs in the access to medicine movement and pharmaceutical companies. There are many representatives of pharmaceutical firms that really believe in the morality of their position – that you need protection to innovate the next generation of drugs. They sincerely believe that the development of drought-resistant plants is something that is good for the world. So these people also make a moral claim whether or not you agree with it. The point is such claims are not purely cynical or instrumental on the part of such actors.”</p>
<p style="text-align: justify; ">Dr. Michael Geist, Law Professor at University of Ottawa commented on the movement advocating open access to scholarly and scientific literature. He <a href="http://global-congress.org/blog/leading-up-to-the-gcip-a-chat-with-michael-geist">raised his concerns</a> on Article Processing Charges (APC), a model currently employed by publishers, saying, “The APC model may price open access out of the hands of many scholars. We need experimentation with different open models, recognizing the economic uncertainty of switching away from high-priced subscriptions. However, APC may entrench much of the current model and is among the least desirable (though increasingly common) publisher approaches to Open Access.”</p>
<p style="text-align: justify; "><a href="http://global-congress.org/blog/leading-up-to-the-gcip-chat-with-zakir-thomas">Concurring with Dr. Geist’s statement</a>, Mr. Zakir Thomas, an expert in the field of intellectual property rights and open source innovation, said, “Creating a national depository of open access journals which are properly cited and indexed, organized subject-wise and searchable online by all our academic institutions should be the next step. Open access is about access to knowledge. It will ensure that the work you do at your lab is now accessible by people at large.”</p>
<h3 style="text-align: justify; ">New at the Global Congress</h3>
<p style="text-align: justify; ">The 4<sup>th</sup> Congress comes with marked changes based on feedback from participants from the earlier editions. A <strong>Room of Scholars </strong><strong>is planned</strong>, in which key research outputs such as advanced chapters or white papers may be presented. Another important addition will be structured <strong>Cross-Track Meetings</strong>, focusing on research cutting across tracks, so that the tracks may share learnings and research outputs, and enter into collaborative dialogue.</p>
<p style="text-align: justify; ">A <strong>‘Youth Workshop on Intellectual Property, Public Health and Access to Medicines’ </strong><strong>is a novel feature at this Congress.</strong> Organised at NLU-D by the Institute for Studies in Industrial Development (ISID), Peoples Health Movement (PHM) and Prayas, from 14-22 December 2015.</p>
<p style="text-align: justify; ">The detailed schedule for the Global Congress can be <a href="http://global-congress.org/schedule">accessed here</a>.</p>
<p style="text-align: justify; ">For more information regarding the Global Congress or participation, please contact our team:</p>
<ul style="text-align: justify; ">
<li>Swaraj Paul Barooah, Organiser: swaraj.barooah@gmail.com </li>
<li>Shruthi Chandrasekaran, Organiser: shruthi.chandrasekaran@gmail.com</li>
<li>Geetha Hariharan, Press Officer: <a href="mailto:geetha@cis-india.org">geetha@cis-india.org</a> </li>
</ul>
<p style="text-align: justify; "> </p>
<p style="text-align: justify; "><strong>***</strong></p>
<p style="text-align: justify; "><strong> </strong></p>
<p style="text-align: justify; "><strong>About CIS</strong></p>
<p style="text-align: justify; ">The Centre for Internet and Society (CIS, <a href="http://cis-india.org">http://cis-india.org</a>) is a non-for-profit organisation that undertakes interdisciplinary research from policy and academic perspectives on digital technologies and the Internet. Our focus areas of research include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, open access, open educational resources, and open video), Internet governance, telecommunication reform, digital privacy and cyber-security. CIS’ academic wing seeks to understand the mediation and reconfiguration of social and cultural processes and structures by the Internet and digital media technologies.</p>
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For more details visit <a href='https://cis-india.org/a2k/blogs/press-release-india-to-host-4th-global-congress-on-intellectual-property-and-the-public-interest'>https://cis-india.org/a2k/blogs/press-release-india-to-host-4th-global-congress-on-intellectual-property-and-the-public-interest</a>
</p>
No publishergeethaGlobal Congress2015-12-14T09:21:01ZBlog EntryComments on the Draft Outcome Document of the UN General Assembly’s Overall Review of the Implementation of WSIS Outcomes (WSIS+10)
https://cis-india.org/internet-governance/blog/comments-on-the-draft-outcome-document-of-the-un-general-assembly2019s-overall-review-of-the-implementation-of-wsis-outcomes-wsis-10
<b>Following the comment-period on the Zero Draft, the Draft Outcome Document of the UN General Assembly's Overall Review of implementation of WSIS Outcomes was released on 4 November 2015. Comments were sought on the Draft Outcome Document from diverse stakeholders. The Centre for Internet & Society's response to the call for comments is below.</b>
<p class="Normal1" style="text-align: justify; "> </p>
<p class="Normal1" style="text-align: justify; ">The WSIS+10 Overall Review of the Implementation of WSIS Outcomes, scheduled for December 2015, comes as a review of the WSIS process initiated in 2003-05. At the December summit of the UN General Assembly, the WSIS vision and mandate of the IGF are to be discussed. The Draft Outcome Document, released on 4 November 2015, is towards an outcome document for the summit. Comments were sought on the Draft Outcome Document. Our comments are below.</p>
<ol style="text-align: justify; ">
<li>The Draft Outcome Document of the UN General Assembly’s Overall Review of the Implementation of WSIS Outcomes (“<i>the current Draft</i>”) stands considerably altered from the Zero Draft. With references to development-related challenges, the Zero Draft covered areas of growth and challenges of the WSIS. It noted the persisting digital divide, the importance of innovation and investment, and of conducive legal and regulatory environments, and the inadequacy of financial mechanisms. Issues crucial to Internet governance such as net neutrality, privacy and the mandate of the IGF found mention in the Zero Draft.</li>
<li>The current Draft retains these, and adds to them. Some previously-omitted issues such as surveillance, the centrality of human rights and the intricate relationship of ICTs to the Sustainable Development Goals, now stand incorporated in the current Draft. This is most commendable. However, the current Draft still lacks teeth with regard to some of these issues, and fails to address several others. </li>
<li>In our comments to the Zero Draft, CIS had called for these issues to be addressed. We reiterate our call in the following paragraphs.</li>
</ol>
<h2 style="text-align: justify; "><strong>(1) </strong><strong>ICT for Development</strong></h2>
<ol style="text-align: justify; ">
<li>In the current Draft, paragraphs 14-36 deal with ICTs for development. While the draft contains rubrics like ‘Bridging the digital divide’, ‘Enabling environment’, and ‘Financial mechanisms’, the following issues are unaddressed:</li>
<li>Equitable development for all;</li>
<li>Accessibility to ICTs for persons with disabilities;</li>
<li>Access to knowledge and open data.</li>
</ol>
<h3><i><span>Equitable development</span></i></h3>
<ol style="text-align: justify; ">
<li>In the <a class="external-link" href="http://www.itu.int/net/wsis/docs/geneva/official/dop.html">Geneva Declaration of Principles</a> (2003), two goals are set forth as the Declaration’s “ambitious goal”: (a) the bridging of the digital divide; and (b) equitable development for all (¶ 17). The current Draft speaks in detail about the bridging of the digital divide, but the goal of equitable development is conspicuously absent. At WSIS+10, when the WSIS vision evolves to the creation of inclusive ‘knowledge societies’, equitable development should be both a key principle and a goal to stand by.</li>
<li>Indeed, inequitable development underscores the persistence of the digital divide. The current Draft itself refers to several instances of inequitable development; for ex., the uneven production capabilities and deployment of ICT infrastructure and technology in developing countries, landlocked countries, small island developing states, countries under occupation or suffering natural disasters, and other vulnerable states; lack of adequate financial mechanisms in vulnerable parts of the world; variably affordable (or in many cases, unaffordable) spread of ICT devices, technology and connectivity, etc. </li>
<li>What underscores these challenges is the inequitable and uneven spread of ICTs across states and communities, including in their production, capacity-building, technology transfers, gender-concentrated adoption of technology, and inclusiveness. </li>
<li>As such, it is essential that the WSIS+10 Draft Outcome Document reaffirm our commitment to equitable development for all peoples, communities and states.</li>
<li>We suggest the following inclusion to <strong>paragraph 5 of the current Draft</strong>:</li>
</ol>
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<th style="text-align: justify; "><span><span style="text-align: justify; ">“5. We reaffirm our common desire and commitment to the WSIS vision to build </span><i style="text-align: justify; "><span>an equitable,</span></i><span style="text-align: justify; "> people-centred, inclusive, and development-oriented Information Society…”</span></span></th>
</tr>
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</table>
<h3><i><span>Accessibility for persons with disabilities</span></i></h3>
<p style="text-align: justify; ">10. Paragraph 13 of the Geneva Declaration of Principles (2003) pledges to “pay particular attention to the special needs of marginalized and vulnerable groups of society” in the forging of an Information Society. Particularly, ¶ 13 recognises the special needs of older persons and persons with disabilities.</p>
<p style="text-align: justify; ">11. Moreover, ¶ 31 of the Geneva Declaration of Principles calls for the special needs of persons with disabilities, and also of disadvantaged and vulnerable groups, to be taken into account while promoting the use of ICTs for capacity-building. Accessibility for persons with disabilities is thus core to bridging the digital divide – as important as bridging the gender divide in access to ICTs.</p>
<p style="text-align: justify; ">12. Not only this, but the <a class="external-link" href="http://www.itu.int/net/wsis/implementation/2014/forum/inc/doc/outcome/362828V2E.pdf">WSIS+10 Statement on the Implementation of WSIS Outcomes</a> (June 2014) also reaffirms the commitment to “provide equitable access to information and knowledge for all… including… people with disabilities”, recognizing that it is “crucial to increase the participation of vulnerable people in the building process of Information Society…” (¶8).</p>
<p style="text-align: justify; ">13. In our previous submission, CIS had suggested language drawing attention to this. Now, the current Draft only acknowledges that “particular attention should be paid to the specific ICT challenges facing… persons with disabilities…” (paragraph 11). It acknowledges also that now, accessibility for persons with disabilities constitutes one of the core elements of quality (paragraph 22). However, there is a glaring omission of a call to action, or a reaffirmation of our commitment to bridging the divide experienced by persons with disabilities.</p>
<p style="text-align: justify; ">14. We suggest, therefore, the addition of the following language the addition of <strong>paragraph 24A to the current Draft</strong>. Sections of this suggestion are drawn from ¶8, WSIS+10 Statement on the Implementation of WSIS Outcomes.</p>
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<th style="text-align: justify; "><span>"24A. <span style="text-align: justify; ">Recalling the UN Convention on the rights of people with disabilities, the Geneva principles paragraph 11, 13, 14 and 15, Tunis Commitment paras 20, 22 and 24, and reaffirming the commitment to providing equitable access to information and knowledge for all, building ICT capacity for all and confidence in the use of ICTs by all, including youth, older persons, women, indigenous and nomadic peoples, people with disabilities, the unemployed, the poor, migrants, refugees and internally displaced people and remote and rural communities, it is crucial to increase the participation of vulnerable people in the building process of information Society and to make their voice heard by stakeholders and policy-makers at different levels. It can allow the most fragile groups of citizens worldwide to become an integrated part of their economies and also raise awareness of the target actors on the existing ICTs solution (such as tolls as e- participation, e-government, e-learning applications, etc.) designed to make their everyday life better. We recognise need for continued extension of access for people with disabilities and vulnerable people to ICTs, especially in developing countries and among marginalized communities, and reaffirm our commitment to promoting and ensuring accessibility for persons with disabilities. In particular, we call upon all stakeholders to honour and meet the targets set out in Target 2.5.B of the Connect 2020 Agenda that enabling environments ensuring accessible telecommunication/ICT for persons with disabilities should be established in all countries by 2020.”</span></span></th>
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<h3><i><span>Access to knowledge and open data</span></i></h3>
<p style="text-align: justify; ">15. The Geneva Declaration of Principles dedicates a section to access to information and knowledge (B.3). It notes, in ¶26, that a “rich public domain” is essential to the growth of Information Society. It urges that public institutions be strengthened to ensure free and equitable access to information (¶26), and also that assistive technologies and universal design can remove barriers to access to information and knowledge (¶25). Particularly, the Geneva Declaration advocates the use of free and open source software, in addition to proprietary software, to meet these ends (¶27).</p>
<p style="text-align: justify; ">16. It was also recognized in the WSIS+10 Statement on the Implementation of WSIS Outcomes (‘Challenges-during implementation of Action Lines and new challenges that have emerged’) that there is a need to promote access to all information and knowledge, and to encourage open access to publications and information (C, ¶¶9 and 12).</p>
<p style="text-align: justify; ">17. In our previous submission, CIS had highlighted the importance of open access to knowledge thus: “…the implications of open access to data and knowledge (including open government data), and responsible collection and dissemination of data are much larger in light of the importance of ICTs in today’s world. As Para 7 of the Zero Draft indicates, ICTs are now becoming an indicator of development itself, as well as being a key facilitator for achieving other developmental goals. As Para 56 of the Zero Draft recognizes, in order to measure the impact of ICTs on the ground – undoubtedly within the mandate of WSIS – it is necessary that there be an enabling environment to collect and analyse reliable data. Efforts towards the same have already been undertaken by the United Nations in the form of ‘Data Revolution for Sustainable Development’. In this light, the Zero Draft rightly calls for enhancement of regional, national and local capacity to collect and conduct analyses of development and ICT statistics (Para 56). Achieving the central goals of the WSIS process requires that such data is collected and disseminated under open standards and open licenses, leading to creation of global open data on the ICT indicators concerned.”</p>
<p style="text-align: justify; ">18. This crucial element is missing from the current Draft of the WSIS+10 Outcome Document. Of course, the current Draft notes the importance of access to information and free flow of data. But it stops short of endorsing and advocating the importance of access to knowledge and free and open source software, which are essential to fostering competition and innovation, diversity of consumer/ user choice and ensuring universal access.</p>
<p style="text-align: justify; ">19. We suggest the following addition – of <strong>paragraph 23A to the current Draft</strong>:</p>
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<th style="text-align: justify; "><span>"23A. <span style="text-align: justify; ">We recognize the need to promote access for all to information and knowledge, open data, and open, affordable, and reliable technologies and services, while respecting individual privacy, and to encourage open access to publications and information, including scientific information and in the research sector, and particularly in developing and least developed countries.”</span></span></th>
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</table>
<h2 style="text-align: justify; "><strong>(2) </strong><strong>Human Rights in Information Society</strong></h2>
<p style="text-align: justify; ">20. The current Draft recognizes that human rights have been central to the WSIS vision, and reaffirms that rights offline must be protected online as well. However, the current Draft omits to recognise the role played by corporations and intermediaries in facilitating access to and use of the Internet.</p>
<p style="text-align: justify; ">21. In our previous submission, CIS had noted that “the Internet is led largely by the private sector in the development and distribution of devices, protocols and content-platforms, corporations play a major role in facilitating – and sometimes, in restricting – human rights online”.</p>
<p style="text-align: justify; ">22. We reiterate our suggestion for the inclusion of <strong>paragraph 43A to the current Draft</strong>:</p>
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<th style="text-align: justify; "><span>"43A. <span style="text-align: justify; ">We recognize the critical role played by corporations and the private sector in facilitating human rights online. We affirm, in this regard, the responsibilities of the private sector set out in the Report of the Special Representative of the Secretary General on the issue of human rights and transnational corporations and other business enterprises, A/HRC/17/31 (21 March 2011), and encourage policies and commitments towards respect and remedies for human rights.”</span></span></th>
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<h2 style="text-align: justify; "><strong>(3) </strong><strong>Internet</strong> <strong>Governance</strong></h2>
<h3><i><span>The support for multilateral governance of the Internet</span></i></h3>
<p style="text-align: justify; ">23. While the section on Internet governance is not considerably altered from the zero draft, there is a large substantive change in the current Draft. The current Draft states that the governance of the Internet should be “multilateral, transparent and democratic, with full involvement of all stakeholders” (¶50). Previously, the zero draft recognized the “the general agreement that the governance of the Internet should be open, inclusive, and transparent”.</p>
<p style="text-align: justify; ">24. A return to purely ‘multilateral’ Internet governance would be regressive. Governments are, without doubt, crucial in Internet governance. As scholarship and experience have both shown, governments have played a substantial role in shaping the Internet as it is today: whether this concerns the availability of content, spread of infrastructure, licensing and regulation, etc. However, these were and continue to remain contentious spaces.</p>
<p style="text-align: justify; ">25. As such, it is essential to recognize that a plurality of governance models serve the Internet, in which the private sector, civil society, the technical community and academia play important roles. <strong>We recommend returning to the language of the zero draft in ¶32: “open, inclusive and transparent governance of the Internet”.</strong></p>
<h3><i><span>Governance of Critical Internet Resources</span></i></h3>
<p style="text-align: justify; ">26. It is curious that the section on Internet governance<strong> </strong>in both the zero and the current Draft makes no reference to ICANN, and in particular, to the ongoing transition of IANA stewardship and the discussions surrounding the accountability of ICANN and the IANA operator. The stewardship of critical Internet resources, such as the root, is crucial to the evolution and functioning of the Internet. Today, ICANN and a few other institutions have a monopoly over the management and policy-formulation of several critical Internet resources.</p>
<p style="text-align: justify; ">27. While the WSIS in 2003-05 considered this a troubling issue, this focus seems to have shifted entirely. Open, inclusive, transparent and <i>global</i> Internet are misnomer-principles when ICANN – and in effect, the United States – continues to have monopoly over critical Internet resources. The allocation and administration of these resources should be decentralized and distributed, and should not be within the disproportionate control of any one jurisdiction.</p>
<p style="text-align: justify; ">28. Therefore, we reiterate our suggestion to add <strong><span>paragraph 53A</span></strong> after Para 53:</p>
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<th style="text-align: justify; "><span>"53A. <span style="text-align: justify; ">We affirm that the allocation, administration and policy involving critical Internet resources must be inclusive and decentralized, and call upon all stakeholders and in particular, states and organizations responsible for essential tasks associated with the Internet, to take immediate measures to create an environment that facilitates this development.”</span></span></th>
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<h3><i><span>Inclusiveness and Diversity in Internet Governance</span></i></h3>
<p style="text-align: justify; ">29. The current Draft, in ¶52, recognizes that there is a need to “promote greater participation and engagement in Internet governance of all stakeholders…”, and calls for “stable, transparent and voluntary funding mechanisms to this end.” This is most commendable.</p>
<p style="text-align: justify; ">30. The issue of inclusiveness and diversity in Internet governance is crucial: today, Internet governance organisations and platforms suffer from a lack of inclusiveness and diversity, extending across representation, participation and operations of these organisations. As CIS submitted previously, the mention of inclusiveness and diversity becomes tokenism or formal (but not operational) principle in many cases.</p>
<p style="text-align: justify; ">31. As we submitted before, the developing world is pitifully represented in standards organisations and in ICANN, and policy discussions in organisations like ISOC occur largely in cities like Geneva and New York. For ex., 307 out of 672 registries listed in ICANN’s registry directory are based in the United States, while 624 of the 1010 ICANN-accredited registrars are US-based.</p>
<p style="text-align: justify; ">32. Not only this, but 80% of the responses received by ICANN during the ICG’s call for proposals were male. A truly global and open, inclusive and transparent governance of the Internet must not be so skewed. Representation must include not only those from developing countries, but must also extend across gender and communities.</p>
<p style="text-align: justify; ">33. We propose, therefore, the addition of a <strong><span>paragraph 51A</span></strong> after Para 51:</p>
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<th style="text-align: justify; "><span>"51A. <span style="text-align: justify; ">We draw attention to the challenges surrounding diversity and inclusiveness in organisations involved in Internet governance, including in their representation, participation and operations. We note with concern that the representation of developing countries, of women, persons with disabilities and other vulnerable groups, is far from equitable and adequate. We call upon organisations involved in Internet governance to take immediate measures to ensure diversity and inclusiveness in a substantive manner.”</span></span></th>
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</table>
<p style="text-align: justify; "> </p>
<hr size="1" style="text-align: justify; " width="33%" />
<p style="text-align: justify; ">Prepared by Geetha Hariharan, with inputs from Sunil Abraham and Japreet Grewal. All comments submitted towards the Draft Outcome Document may be found <a class="external-link" href="http://unpan3.un.org/wsis10/Preparatory-Process-Roadmap/Comments-on-Draft-Outcome-Document">at this link</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/comments-on-the-draft-outcome-document-of-the-un-general-assembly2019s-overall-review-of-the-implementation-of-wsis-outcomes-wsis-10'>https://cis-india.org/internet-governance/blog/comments-on-the-draft-outcome-document-of-the-un-general-assembly2019s-overall-review-of-the-implementation-of-wsis-outcomes-wsis-10</a>
</p>
No publishergeethaICT4DCall for CommentsWSIS+10Access to KnowledgeAccessibilityHuman Rights OnlineInternet GovernanceICANNIANA TransitionOpen SourceOpen Access2015-11-18T06:33:13ZBlog EntryComments on the Zero Draft of the UN General Assembly’s Overall Review of the Implementation of WSIS Outcomes (WSIS+10)
https://cis-india.org/internet-governance/blog/comments-on-the-zero-draft-of-the-un-general-assembly2019s-overall-review-of-the-implementation-of-wsis-outcomes-wsis-10
<b>On 9 October 2015, the Zero Draft of the UN General Assembly's Overall Review of implementation of WSIS Outcomes was released. Comments were sought on the Zero Draft from diverse stakeholders. The Centre for Internet & Society's response to the call for comments is below.</b>
<p style="text-align: justify; ">These comments were prepared by Geetha Hariharan with inputs from Sumandro Chattapadhyay, Pranesh Prakash, Sunil Abraham, Japreet Grewal and Nehaa Chaudhari. <b>Download the <a href="https://cis-india.org/internet-governance/blog/comments-on-zero-draft-of-un-general-assembly.pdf" class="internal-link">comments here</a></b>.</p>
<hr />
<ol style="text-align: justify; ">
<li>The Zero Draft of the UN General Assembly’s Overall Review of the Implementation of WSIS Outcomes (“Zero Draft”) is divided into three sections: (A) ICT for Development; (B) Internet Governance; (C) Implementation and Follow-up. CIS’ comments follow the same structure.</li>
<li>The Zero Draft is a commendable document, covering crucial areas of growth and challenges surrounding the WSIS. The Zero Draft makes detailed references to development-related challenges, noting the persistent digital divide, the importance of universal access, innovation and investment, and of enabling legal and regulatory environments conducive to the same. It also takes note of financial mechanisms, without which principles would remain toothless. Issues surrounding Internet governance, particularly net neutrality, privacy and the continuation of the IGF are included in the Zero Draft.</li>
<li>However, we believe that references to these issues are inadequate to make progress on existing challenges. Issues surrounding ICT for Development and Internet Governance have scarcely changed in the past ten years. Though we may laud the progress so far achieved, universal access and connectivity, the digital divide, insufficient funding, diverse and conflicting legal systems surrounding the Internet, the gender divide and online harassment persist. Moreover, the working of the IGF and the process of Enhanced Cooperation, both laid down with great anticipation in the Tunis Agenda, have been found wanting.</li>
<li>These need to be addressed more clearly and strongly in the Zero Draft. In light of these shortcomings, we suggest the following changes to the Zero Draft, in the hope that they are accepted. <br />A. ICT for Development</li>
<li>Paragraphs 16-21 elaborate upon the digital divide – both the progresses made and challenges. While the Zero Draft recognizes the disparities in access to the Internet among countries, between men and women, and of the languages of Internet content, it fails to attend to two issues.</li>
<li><b><i>First</i>, accessibility for persons with disabilities continues to be an immense challenge</b>. Since the mandate of the WSIS involves universal access and the bridging of the digital divide, it is necessary that the Zero Draft take note of this continuing challenge.</li>
<li>We suggest the insertion of <b>Para 20A</b> after Para 20:<br />“20A. We draw attention also to the digital divide adversely affecting the accessibility of persons with disabilities. We call on all stakeholders to take immediate measures to ensure accessibility for persons with disabilities by 2020, and to enhance their capacity and access to ICTs.”</li>
<li><b><i>Second</i>, while the digital divide among the consumers of ICTs has decreased since 2003-2005, the digital production divide goes unmentioned</b>. The developing world continues to have fewer producers of technology compared to their sheer concentration in the developed world – so much so that countries like India are currently pushing for foreign investment through missions like ‘Digital India’. Of course, the Zero Draft refers to the importance of private sector investment (Para 31). But it fails to point out that currently, such investment originates from corporations in the developed world. For this digital production divide to disappear, restrictions on innovation – restrictive patent or copyright regimes, for instance – should be removed, among other measures. <b>Equitable development is the key</b>.</li>
<li><i>Ongoing negotiations of plurilateral agreements such as the Trans-Pacific Partnership (TPP) go unmentioned in the Zero Draft</i>. This is shocking. The TPP has been criticized for its excessive leeway and support for IP rightsholders, while incorporating non-binding commitments involving the rights of users (see Clause QQ.G.17 on copyright exceptions and limitations, QQ.H.4 on damages and QQ.C. 12 on ccTLD WHOIS, https://wikileaks.org/tpp-ip3/WikiLeaks-TPP-IP-Chapter/WikiLeaks-TPP-IP-Chapter-051015.pdf). Plaudits for progress make on the digital divide would be lip service if such agreements were not denounced.</li>
<li>Therefore, we propose the addition of <b>Para 20B</b> after Para 20:<br />“20B. We draw attention also to the digital production divide among countries, recognizing that domestic innovation and production are instrumental in achieving universal connectivity. Taking note of recent negotiations surrounding restrictive and unbalanced plurilateral trade agreements, we call on stakeholders to adopt policies to ensure globally equitable development, removing restrictions on innovation and conducive to fostering domestic and local production.”</li>
<li>Paragraph 22 of the Zero Draft acknowledges that “school curriculum requirements for ICT, open access to data and free flow of information, fostering of competition, access to finance”, etc. have “in many countries, facilitated significant gains in connectivity and sustainable development”.</li>
<li>This is, of course, true. However, as Para 23 also recognises, access to knowledge, data and innovation have come with large costs, particularly for developing countries like India. These costs are heightened by a lack of promotion and adoption of open standards, open access, open educational resources, open data (including open government data), and other free and open source practices. These can help alleviate costs, reduce duplication of efforts, and provide an impetus to innovation and connectivity globally.</li>
<li>Not only this, but <b>the implications of open access to data and knowledge (including open government data), and responsible collection and dissemination of data are much larger in light of the importance of ICTs in today’s world</b>. As Para 7 of the Zero Draft indicates, ICTs are now becoming an indicator of development itself, as well as being a key facilitator for achieving other developmental goals. As Para 56 of the Zero Draft recognizes, in order to measure the impact of ICTs on the ground – undoubtedly within the mandate of WSIS – it is necessary that there be an enabling environment to collect and analyse reliable data. Efforts towards the same have already been undertaken by the United Nations in the form of “Data Revolution for Sustainable Development”. In this light, the Zero Draft rightly calls for enhancement of regional, national and local capacity to collect and conduct analyses of development and ICT statistics (Para 56). Achieving the central goals of the WSIS process requires that such data is collected and disseminated under open standards and open licenses, leading to creation of global open data on the ICT indicators concerned.</li>
<li>As such, we suggest that following clause be inserted as <b>Para 23A</b> to the Zero Draft: </li>
</ol>
<p style="text-align: justify; ">“23A. We recognize the importance of access to open, affordable, and reliable technologies and services, open access to knowledge, and open data, including open government data, and encourage all stakeholders to explore concrete options to facilitate the same.”</p>
<p style="text-align: justify; ">15. Paragraph 30 of the Zero Draft laments “the lack of progress on the Digital Solidarity Fund”, and calls “for a review of options for its future”.</p>
<p style="text-align: justify; ">16. The Digital Solidarity Fund was established with the objective of “transforming the digital divide into digital opportunities for the developing world” through voluntary contributions [Para 28, Tunis Agenda]. It was an innovative financial mechanism to help bridge the digital divide between developed and developing countries. This divide continues to exist, as the Zero Draft itself recognizes in Paragraphs 16-21.</p>
<p style="text-align: justify; ">17. <b>Given the persistent digital divide, a “call for review of options” as to the future of the Digital Solidarity Fund is inadequate to enable developing countries to achieve parity with developed countries</b>. A stronger and more definite commitment is required.</p>
<p style="text-align: justify; ">18. As such, we suggest the following language in place of the current <b>Para 30</b>:</p>
<p style="text-align: justify; ">“30. We express concern at the lack of progress on the Digital Solidarity Fund, welcomed in Tunis as an innovative financial mechanism of a voluntary nature, and we <i>call for voluntary commitments from States to revive and sustain the Digital Solidarity Fund</i>.”</p>
<p style="text-align: justify; ">19. Paragraph 31 of the Zero Draft recognizes the importance of “legal and regulatory frameworks conducive to investment and innovation”. This is eminently laudable. However, a <b>broader vision is more compatible with paving the way for affordable and widespread access </b>to devices and technology necessary for universal connectivity.</p>
<p style="text-align: justify; ">20. We suggest the following additions to <b>Para 31</b>:</p>
<p style="text-align: justify; ">“31. We recognise the critical importance of private sector investment in ICT access, content and services, <i>and of legal and regulatory frameworks conducive to local investment and expansive, permissionless innovation</i>.”</p>
<p style="text-align: justify; ">B. Internet Governance</p>
<p style="text-align: justify; ">21. Paragraph 32 of the Zero Draft recognizes the “general agreement that the governance of the Internet should be open, inclusive, and transparent”. Para 37 takes into account “the report of the CSTD Working Group on improvements to the IGF”. Para 37 also affirms the intention of the General Assembly to extend the life of the IGF by (at least) another 5 years, and acknowledges the “unique role of the IGF”.</p>
<p style="text-align: justify; ">22. The IGF is, of course, unique and crucial to global Internet governance. In the last 10 years, major strides have been made among diverse stakeholders in beginning and sustaining conversations on issues critical to Internet governance. These include issues such as human rights, inclusiveness and diversity, universal access to connectivity, emerging issues such as net neutrality, the right to be forgotten, and several others. Through its many arms like the Dynamic Coalitions, the Best Practices Forums, Birds-of-a-Feather meetings and Workshops, the IGF has made it possible for stakeholders to connect. <br /> <br /> 23. However, the constitution and functioning of the IGF have not been without lament and controversy. Foremost among the laments was the IGF’s evident lack of outcome-orientation; this continues to be debatable. Second, the composition and functioning of the MAG, particularly its transparency, have come under the microscope several times. One of the suggestions of the CSTD Working Group on Improvements to the IGF concerned the structure and working methods of the Multistakeholder Advisory Group (MAG). The Working Group recommended that the “process of selection of MAG members should be inclusive, predictable, transparent and fully documented” (Section II.2, Clause 21(a), Page 5 of the Report).</p>
<p style="text-align: justify; ">24. <b>Transparency in the structure and working methods of the MAG are critical to the credibility and impact of the IGF</b>. The functioning of the IGF depends, in a large part, on the MAG. The UN Secretary General established the MAG, and it advises the Secretary General on the programme and schedule of the IGF meetings each year (see <http://www.intgovforum.org/cms/mag/44-about-the-mag>). Under its Terms of Reference, the MAG decides the main themes and sub-themes for each IGF, sets or modifies the rules of engagement, organizes the main plenary sessions, coordinates workshop panels and speakers, and crucially, evaluates the many submissions it receives to choose from amongst them the workshops for each IGF meeting. The content of each IGF, then, is in the hands of the MAG.</p>
<p style="text-align: justify; ">25. <i>But the MAG is not inclusive or transparent</i>. The MAG itself has lamented its opaque ‘black box approach’ to nomination and selection. Also, CIS’ research has shown that the process of nomination and selection of the MAG continues to be opaque. When CIS sought information on the nominators of the MAG, the IGF Secretariat responded that this information would not be made public (see <http://cis-india.org/internet-governance/blog/mag-analysis>).</p>
<p style="text-align: justify; ">26. Further, our analysis of MAG membership shows that since 2006, 26 persons have served for 6 years or more on the MAG. This is astounding, since under the MAG Terms of Reference, MAG members are nominated for a term of 1 year. This 1-year-term is “automatically renewable for 2 more consecutive years”, but such renewal is contingent on an evaluation of the engagement of MAG members in their activities (see <http://www.intgovforum.org/cms/175-igf-2015/2041-mag-terms-of-reference>). MAG members ought not serve for over 3 consecutive years, in accordance with their Terms of Reference. But out of 182 MAG members, around 62 members have served more than the 3-year terms designated by their Terms of Reference (see <http://cis-india.org/internet-governance/blog/mag-analysis>). <br /> <br /> 27. Not only this, but our research showed 36% of all MAG members since 2006 have hailed from the Western European and Others Group (see <http://cis-india.org/internet-governance/blog/mag-analysis>). This indicates a lack of inclusiveness, though the MAG is certainly more inclusive than the composition and functioning of other I-Star organisations such as ICANN.</p>
<p style="text-align: justify; ">28. Tackling these infirmities within the MAG would go a long way in ensuring that the IGF lives up to its purpose. Therefore, we suggest the following additions to <b>Para 37</b>:</p>
<p style="text-align: justify; ">“37. We acknowledge the unique role of the Internet Governance Forum (IGF) as a multistakeholder platform for discussion of Internet governance issues, <i>and take note of </i>the report and recommendations of the CSTD Working Group on improvements to the IGF, which was approved by the General Assembly in its resolution, and ongoing work to implement the findings of that report. <i>We reaffirm the principles of openness, inclusiveness and transparency in the constitution, organisation and functioning of the IGF, and in particular, in the nomination and selection of the Multistakeholder Advisory Group (MAG)</i>. We extend the IGF mandate for another five years with its current mandate as set out in paragraph 72 of the Tunis Agenda for the Information Society. We recognize that, at the end of this period, progress must be made on Forum outcomes and participation of relevant stakeholders from developing countries.”</p>
<p style="text-align: justify; ">29. Paragraphs 32-37 of the Zero Draft make mention of “open, inclusive, and transparent” governance of the Internet. <b>It fails to take note of the lack of inclusiveness and diversity in Internet governance organisations – extending across representation, participation and operations of these organisations</b>. In many cases, mention of inclusiveness and diversity becomes tokenism or formal (but not operational) principle. In substantive terms, the developing world is pitifully represented in standards organisations and in ICANN, and policy discussions in organisations like ISOC occur largely in cities like Geneva and New York. For example, the ‘diversity’ mailing list of IETF has very low traffic. Within ICANN, 307 out of 672 registries listed in ICANN’s registry directory are based in the United States, while 624 of the 1010 ICANN-accredited registrars are US-based. Not only this, but 80% of the responses received by ICANN during the ICG’s call for proposals were male. A truly global and open, inclusive and transparent governance of the Internet must not be so skewed.</p>
<p style="text-align: justify; ">30. We propose, therefore, the addition of a <b>Para 37A</b> after Para 37:</p>
<p style="text-align: justify; ">“37A. We draw attention to the challenges surrounding diversity and inclusiveness in organisations involved in Internet governance, and call upon these organisations to take immediate measures to ensure diversity and inclusiveness in a substantive manner.”</p>
<p style="text-align: justify; ">31. Paragraphs 36 of the Zero Draft notes that “a number of member states have called for an international legal framework for Internet governance.” <b>But it makes no reference to ICANN or the importance of the ongoing IANA transition to global Internet governance</b>. ICANN and its monopoly over several critical Internet resources was one of the key drivers of the WSIS in 2003-2005. Unfortunately, this focus seems to have shifted entirely. Open, inclusive, transparent and <i>global</i> Internet are misnomer-principles when ICANN – and in effect, the United States – continues to have monopoly over critical Internet resources. The allocation and administration of these resources should be decentralized and distributed, and should not be within the disproportionate control of any one jurisdiction.</p>
<p style="text-align: justify; ">32. Therefore, we suggest the following <b>Para 37A</b> after Para 37:</p>
<p style="text-align: justify; ">“37A. We affirm that the allocation, administration and policy involving critical Internet resources must be inclusive and decentralized, and call upon all stakeholders and in particular, states and organizations responsible for essential tasks associated with the Internet, to take immediate measures to create an environment that facilitates this development.”</p>
<p style="text-align: justify; ">33. Paragraph 43 of the Zero Draft encourages “all stakeholders to ensure respect for privacy and the protection of personal information and data”. <b>But the Zero Draft inadvertently leaves out the report of the Office of the UN High Commissioner for Human Rights on digital privacy, ‘The right to privacy in the digital age’ (A/HRC/27/37)</b>. This report, adopted by the Human Rights Council in June 2014, affirms the importance of the right to privacy in our increasingly digital age, and offers crucial insight into recent erosions of privacy. It is both fitting and necessary that the General Assembly take note of and affirm the said report in the context of digital privacy.</p>
<p style="text-align: justify; ">34. We offer the following suggestion as an addition to <b>Para 43</b>:</p>
<p style="text-align: justify; ">“43. We emphasise that no person shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home, or correspondence, consistent with countries’ applicable obligations under international human rights law. <i>In this regard, we acknowledge the report of the Office of the UN High Commissioner for Human Rights, ‘The right to privacy in the digital age’ (A/HRC/27/37, 30 June 2014), and take note of its findings</i>. We encourage all stakeholders to ensure respect for privacy and the protection of personal information and data.”</p>
<p style="text-align: justify; ">35. Paragraphs 40-44 of the Zero Draft state that communication is a fundamental human need, reaffirming Article 19 of the Covenant on Civil and Political Rights, with its attendant narrow limitations. The Zero Draft also underscores the need to respect the independence of the press. Particularly, it reaffirms the principle that the same rights that people enjoy offline must also be protected online.</p>
<p style="text-align: justify; ">36. Further, in Para 31, the Zero Draft recognizes the “critical importance of private sector investment in ICT access, content, and services”. This is true, of course, but corporations also play a crucial role in facilitating the freedom of speech and expression (and all other related rights) on the Internet. As the Internet is led largely by the private sector in the development and distribution of devices, protocols and content-platforms, corporations play a major role in facilitating – and sometimes, in restricting – human rights online. They are, in sum, intermediaries without whom the Internet cannot function.</p>
<p style="text-align: justify; ">37. <b>Given this, it is essential that the outcome document of the WSIS+10 Overall Review recognize and affirm the role of the private sector, and crucially, its responsibilities to respect and protect human rights online</b>.</p>
<p style="text-align: justify; ">38. We suggest, therefore, the insertion of the following paragraph <b>Para 42A</b>, after Para 42:</p>
<p style="text-align: justify; ">“42A. We recognize the critical role played by corporations and the private sector in facilitating human rights online. We affirm, in this regard, the responsibilities of the private sector set out in the Report of the Special Representative of the Secretary General on the issue of human rights and transnational corporations and other business enterprises, A/HRC/17/31 (21 March 2011), and encourage policies and commitments towards respect and remedies for human rights.”</p>
<p style="text-align: justify; ">C. Implementation and Follow-up</p>
<p style="text-align: justify; ">39. Para 57 of the Zero Draft calls for a review of the WSIS Outcomes, and leaves a black space inviting suggestions for the year of the review. How often, then, should the review of implementation of WSIS+10 Outcomes take place?</p>
<p style="text-align: justify; ">40. It is true, of course, that reviews of the implementation of WSIS Outcomes are necessary to take stock of progress and challenges. However, we caution against annual, biennal or other such closely-spaced reviews due to concerns surrounding budgetary allocations.</p>
<p style="text-align: justify; ">41. Reviews of implementation of outcomes (typically followed by an Outcome Document) come at considerable cost, which are budgeted and achieved through contributions (sometimes voluntary) from states. Were Reviews to be too closely spaced, budgets that ideally ought to be utilized to bridge digital divides and ensure universal connectivity, particularly for developing states, would be misspent in reviews. Moreover, closely-spaced reviews would only provide superficial quantitative assessments of progress, but would not throw light on longer term or qualitative impacts.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/comments-on-the-zero-draft-of-the-un-general-assembly2019s-overall-review-of-the-implementation-of-wsis-outcomes-wsis-10'>https://cis-india.org/internet-governance/blog/comments-on-the-zero-draft-of-the-un-general-assembly2019s-overall-review-of-the-implementation-of-wsis-outcomes-wsis-10</a>
</p>
No publishergeethaWSIS+10Internet Governance2015-10-16T02:44:16ZBlog EntryThe Hazards of a Non-neutral Internet
https://cis-india.org/internet-governance/blog/the-week-april-18-2015-geetha-hariharan-hazards-of-non-neutral-internet
<b>Spurred by recent events, India’s policy circles are dancing to the complex tunes of net neutrality. Airtel came under fire for pricing calls made over the Internet differentially; it has since withdrawn this plan. Airtel and Reliance Communications are caught in the storm as Airtel Zero and Internet.org, the Facebook-spearheaded product for low-cost Internet access, face stiff criticism for violating net neutrality. Companies like Flipkart, which earlier supported these products, have stepped back and are throwing their weight behind net neutrality. The Department of Telecommunications has set up a six-member panel to consult on net neutrality. </b>
<p style="text-align: justify; ">A modified version of the blog entry was published as an article titled "<a class="external-link" href="http://week.manoramaonline.com/cgi-bin/MMonline.dll/portal/ep/theWeekContent.do?programId=1073754899&contentId=18716696">A must for free speech</a>" in the Week on April 18, 2015</p>
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<p style="text-align: justify; ">Responding to concerns, the Telecom Regulatory Authority of India (TRAI) released a consultation paper on OTT services on March 27, 2015. TRAI has called for public comments to be sent by April 24, 2015, and counter-comments to be sent by May 8, 2015. The TRAI consultation paper raises several crucial issues, including net neutrality. Given the heightened interest in the issue, let us two steps back and revisit the basics about net neutrality.</p>
<p style="text-align: justify; "><b>What is net neutrality?</b></p>
<p style="text-align: justify; ">In the simplest terms, net neutrality is the principle by which the carrier (telco/ISP like Reliance, Airtel) is prohibited from discriminating between any two ‘packets’ of data carried over its network. That is, ISPs ought not treat data packets differently, no matter what the content, source or price.</p>
<p style="text-align: justify; ">It follows, then, that when packets are given differential treatment, the principle of net neutrality is violated. As Centre for Internet and Society’s Sunil Abraham explains, differential treatment may occur in many ways: <span>first</span>, carriers may provide consumers with free access to certain websites or web content, while charging the sender or destination; <span>second</span>, ISPs may throttle traffic of one website/company to give it priority over other sites (the website will then load faster than others); <span>third</span>, ISPs may refuse access to some websites unless consumers or content-providers pay extra charges. Other violations abound too; this list is merely illustrative.</p>
<p style="text-align: justify; "><b>Diversity, Innovation & Competition: The Costs of Net Non-neutrality</b></p>
<p style="text-align: justify; ">Let us take zero-rating to explore the impacts of a net neutrality violation. In <i>Internet.org</i> and <i>Airtel Zero</i>, companies like Facebook and Flipkart (prior to the latter’s withdrawal) pay to provide users with free access to their cluster of websites; these are examples of “zero-rating”. Telcos and content-providers like Facebook argue that this is crucial to expand Internet access in price-sensitive markets like India. While this is an important consideration, zero-rating can have detrimental impacts on free speech and diversity, competition and innovation. It can result in “walled gardens” and a diversity-trap, where the only sites we can access are the walled gardens of curated information compiled by Facebook and the like.</p>
<p style="text-align: justify; ">Today, we can access an unprecedented variety of content across freely accessible platforms. We pay for our Internet connections and for data, but the content we access is neither set nor monitored by ISPs or content-providers, unless legally mandated to do so under Section 69 of Information Technology Act, 2000. Our freedom to access and receive diverse information is not curated by the companies themselves (as Facebook would in <i>Internet.org</i>) or their ability to pay ISPs to carry traffic. But with zero-rating, preferential access or traffic throttling, content diversity will suffer.</p>
<p style="text-align: justify; ">Of course, impact of receding diversity of content may not be felt in the short term, if access is made the priority. However, if net non-neutrality is allowed to continue in perpetuity, this may result in corporate curation and censorship of content. Moreover, since established players can better shell out the money needed for zero-rated or prioritised access, new companies and start-ups may find their entry blocked. Such a possibility is vexing for innovation, as greater costs will disincentivise smaller players from entering the market. There is also an impact on competition: entrenched players who can afford to pay carriers will dig their heels deeper, and become the sole curators of content. This is censorship by market design.</p>
<p style="text-align: justify; "><b>Access and Self-preservation, say the Telcos</b></p>
<p style="text-align: justify; ">Some telecom operators and ISPs argue that zero-rating is essential for universal access to data services, a dream of the Digital India mission. They also stress that OTTs like Whatsapp, Viber, Skype and others are free-riding on their networks and usurping their revenue, since it is the telcos and not OTTs who pay licence fees and spectrum charges. Finally, telcos and ISPs say that treating packets differently is a form of network and traffic management; such management is crucial to an efficient and open Internet, and is an age-old practice of operators.</p>
<p style="text-align: justify; ">Of course, traffic and network management practices <i>do </i>exist, and operators do block or manage speeds during congestion periods or when there are security threats. As users, we also experience different Internet speeds depending on the hardware and software employed by operators, the time of day, the type of content accessed (video/ audio/ text), etc. As Christopher Yoo says, operators should be free to experiment with network management practices (‘network diversity’) so long as consumers and competition suffer no detriment.</p>
<p style="text-align: justify; ">But as reports show, net non-neutrality practices have negative impacts on speech diversity, innovation and competition, among others. Any proposal to grant legal recognition to net non-neutrality practices like zero-rating, traffic-prioritization or others, which depend on the consumer or content-provider’s ability to pay and result in differential treatment of data packets, must answer these concerns and provide safeguards. In <i>Shreya Singhal</i>, the Supreme Court affirmed the value of freedom of speech and diversity; saying that “…a culture of open dialogue is important”, the Court declared that “…we need to tolerate unpopular views”. Internet companies and telcos provide the platforms to make such views available. Through traffic prioritization and zero-rating, and by chilling innovation and competition, net neutrality violations can stifle speech diversity. The Department of Telecom and TRAI must remember this when debating a net neutrality regulation.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/the-week-april-18-2015-geetha-hariharan-hazards-of-non-neutral-internet'>https://cis-india.org/internet-governance/blog/the-week-april-18-2015-geetha-hariharan-hazards-of-non-neutral-internet</a>
</p>
No publishergeethaNet NeutralityInternet Governance2015-05-27T16:07:36ZBlog EntryWhat 66A Judgment Means For Free Speech Online
https://cis-india.org/internet-governance/blog/huffington-post-geetha-hariharan-march-26-2015-what-66-a-judgment-means-for-free-speech-online
<b>This week India's Supreme Court redefined the boundaries of freedom of speech on the internet. With the Court's decision in Shreya Singhal & Ors. v. Union of India, Section 66A of the Information Technology Act, 2000, has been struck down in entirety and is no longer good law.</b>
<p style="text-align: justify; ">Geetha Hariharan's article was originally published in the <a class="external-link" href="http://www.huffingtonpost.in/geetha-hariharan/what-66a-judgment-means-f_b_6938110.html">Huffington Post</a> on March 26, 2015.</p>
<hr />
<p style="text-align: justify; ">This week India's Supreme Court redefined the boundaries of freedom of speech on the internet. With the <a href="http://judis.nic.in/supremecourt/imgs1.aspx?filename=42510" target="_hplink">Court's decision</a> in <i>Shreya Singhal & Ors. v. Union of India</i>, Section 66A of the Information Technology Act, 2000, has been struck down in entirety and is no longer good law. Through a structured, well-reasoned and heartening judgment, the court talks us through the nuances of free speech and valid restrictions. While previously, intermediaries were required to take down content upon <i>suo moto</i> determination of lawfulness, Section 79(3)(b) of the Act -- the intermediary liability provision -- has been read down to require actual knowledge of a court order or a government notification to take down content. Section 69A of the Act and its corresponding Rules, the provisions enabling the blocking of web content, have been left intact by the court, though infirmities persist.</p>
<p style="text-align: justify; ">The Supreme Court's decision comes at a critical moment for freedom of speech in India. In recent years, the freedom guaranteed under <a href="http://indiankanoon.org/doc/1142233/" target="_hplink">Article 19(1)(a)</a> of the Constitution has suffered unmitigated misery: Wendy Doniger's <i>The Hindus: An Alternative History</i><a href="http://indianexpress.com/article/india/india-others/the-hindus-controversy-angry-wendy-doniger-says-indian-law-true-villain/" target="_hplink"> was banned</a> for hurting religious sentiments, publisher <a href="http://indianexpress.com/article/india/india-others/its-batra-again-book-on-sexual-violence-in-ahmedabad-riots-is-set-aside-by-publisher/" target="_hplink">Orient Blackswan</a> fearing legal action stayed its release of an academic work on sexual violence in Ahmedabad, the author Perumal Murugan <a href="http://www.caravanmagazine.in/vantage/why-perumal-murugans-one-part-woman-significant-debate-freedom-expression-india" target="_hplink">faced harsh criticism</a> for his novel <i>One Part Woman</i> and chose to slay his authorial identity.</p>
<blockquote class="pullquote" style="text-align: justify; ">"The Supreme Court's decision comes at a critical moment for freedom of speech in India. In recent years, the freedom guaranteed under Article 19(1)(a) of the Constitution has suffered unmitigated misery."</blockquote>
<p style="text-align: justify; ">The tale of free speech on the Internet is similar. In response to takedown requests, intermediaries <a href="http://cis-india.org/internet-governance/chilling-effects-on-free-expression-on-internet" target="_hplink">prefer to tread a safe path</a>, taking down even legitimate content for fear of triggering penalties under Section 79 of the IT Act. The government has <a href="http://cis-india.org/internet-governance/blog/analysing-blocked-sites-riots-communalism" target="_hplink">blocked websites</a> in ways that transgress the bounds of 'reasonable restrictions' on speech. Section 66A alone has gathered astounding arrests and controversy. In 2012, <a href="http://www.hindustantimes.com/mumbai/outrage-after-arrest-of-2-women-for-facebook-post-on-mumbai-shutdown/article1-961377.aspx" target="_hplink">Shaheen Dhada and her friend</a> were arrested in Maharashtra for observing that Bal Thackeray's funeral shut down Mumbai, <a href="http://timesofindia.indiatimes.com/city/goa/Chargesheet-against-Devu-Chodankar-likely-soon/articleshow/43452449.cms" target="_hplink">Devu Chodankar</a> in Goa and <a href="http://tech.firstpost.com/news-analysis/facebook-youth-arrested-anti-modi-message-whatsapp-224422.html" target="_hplink">Syed Waqar</a> in Karnataka were arrested in 2014 for making posts about PM Narendra Modi, and <a href="http://indiatoday.intoday.in/story/man-arrested-for-tweet-on-chidambarams-son-months-after-swamy-targeted-karti/1/227022.html" target="_hplink">a Puducherry man was arrested</a> for criticizing P. Chidambaram's son. The misuse of Section 66A, and the inadequacy of other provisions of the IT Act, were well-documented.</p>
<h3 style="text-align: justify; ">Section 66A: No longer draconian</h3>
<p style="text-align: justify; ">In a writ petition filed in 2012, the law student Shreya Singhal challenged the constitutionality of <a href="http://cis-india.org/internet-governance/resources/section-66A-information-technology-act" target="_hplink">Section 66A</a> on grounds, <i>inter alia</i>, of vagueness and its chilling effect. More petitions were filed challenging other provisions of the IT Act including Section 69A (website blocking) and Section 79 (intermediary liability), and <a href="http://cis-india.org/internet-governance/blog/overview-constitutional-challenges-on-itact" target="_hplink">these were heard jointly</a> by justices Rohinton F. Nariman and G. Chelameshwar. Section 66A, implicating grave issues of freedom of speech on the internet, was at the centre of the challenge.</p>
<blockquote class="pullquote" style="text-align: justify; ">"It is difficult -impossible, in fact - to foresee or predict what speech is permitted or criminalised under Section 66A. As a result, there is a chilling effect on free speech online, resulting in self-censorship."</blockquote>
<p style="text-align: justify; ">Section 66A makes it a criminal offence to send any online communication that is "grossly offensive" or "menacing", or false information sent for the purposes of causing "annoyance, inconvenience, insult, injury, obstruction, enmity, hatred, ill will", etc. These terms are not defined. Neither do they fall within one of the eight subjects for limitation under Article 19(2). It is difficult -impossible, in fact - to foresee or predict what speech is permitted or criminalised under Section 66A. As a result, there is a chilling effect on free speech online, resulting in self-censorship.</p>
<p>With yesterday's decision, the Supreme Court has struck down Section 66A on grounds of vagueness, excessive range and chilling effects on speech online. What is perhaps most uplifting is the court's affirmation of the value of free speech. In the midst of rising conservatism towards free speech, the Court reminds us that an "informed citizenry" and a "culture of open dialogue" are crucial to our democracy. Article 19(1)(a) shields us from "occasional tyrannies of governing majorities", and its restriction should be within Constitutional bounds enumerated in <a href="http://indiankanoon.org/doc/493243/" target="_hplink">Article 19(2)</a>.</p>
<h3>What speech is protected?</h3>
<p style="text-align: justify; ">There are three types of speech, the court says: Discussion, advocacy and incitement. Discussion and advocacy are at the heart of Article 19(1)(a), and are unquestionably protected. But when speech amounts to incitement - that is, if it is expected to cause harm, danger or public disorder- it can be reasonably restricted for any of these reasons: public order, sovereignty and integrity of India, security of the State and friendly relations with foreign states.</p>
<p style="text-align: justify; ">" The Union of India argued that Section 66A is saved by the clauses "public order", "defamation", "incitement to an offence" and "decency, morality". But as the court finds that these are spurious grounds."</p>
<p style="text-align: justify; ">Section 66A, however, does not meet the legal standards for any of the limitation-clauses under Article 19(2), and so is unconstitutional. The Union of India argued that Section 66A is saved by the clauses "public order", "defamation", "incitement to an offence" and "decency, morality". But as the court finds that these are spurious grounds. For instance, Section 66A covers "all information" sent via the Internet, but does not make any reference (express or implied) to public order. Section 66A is not saved by incitement, either. The ingredients of "incitement" are that there must be a "clear tendency to disrupt public order", or an express or implied call to violence or disorder, and Section 66A is remarkably silent on these. By its vague and wide scope, Section 66A may apply to one-on-one online communication or to public posts, and so its applicability is uncertain. For these grounds, Section 66A has been struck down.</p>
<p style="text-align: justify; ">For freedom of speech on the internet, this is fantastic news! The unpredictability and threat of Section 66A has been lifted. Political commentary, criticism and dialogue are clearly protected under Article 19(1)(a). Of course, the government is still keen to regulate online speech, but the bounds within which it may do so have been reasserted and fortified.</p>
<h3 style="text-align: justify; ">Section 69A and website blocking</h3>
<p style="text-align: justify; ">Section 69A empowers the government and its agencies to block websites on any of six grounds: "in the interest of sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to above". The blocking procedure is set out in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. It requires that a Committee for Examination of Request (CER) examines each blocking request, and gives the content-generator or host 48 hours to make a representation. The Secretary of the Department of Electronics and Information Technology then issues the blocking direction to the intermediary.</p>
<blockquote class="pullquote" style="text-align: justify; ">"[The court has] failed to consider the impact of Section 69A and its Rules. Our free speech rights as listeners are equally affected when legitimate websites containing information are blocked. Transparency, blockpage notifications and judicial review are essential to determine whether each blocking direction is valid."</blockquote>
<p style="text-align: justify; ">Now, the Supreme Court decision has left Section 69A and its Rules intact, stating that it is a "narrowly drawn provision with several safeguards". However, the Court has overlooked some crucial details. For instance, no judicial review is available to test the validity of each blocking direction. Moreover, Rule 14 of the Blocking Rules requires that all blocking requests and directions are kept confidential. This means that neither the content-generator, nor the reader/listener or general public, will have any idea of how many blocking directions have been issued or why. There is no standard blockpage display in India, either, and this further aggravates the transparency problem.</p>
<p style="text-align: justify; ">Lamentably, the Supreme Court has not considered this. Though the court has recognised and upheld the rights of viewers, readers and listeners in its decision on Section 66A, it failed to consider the impact of Section 69A and its Rules on readers and listeners. Our free speech rights as listeners are equally affected when legitimate websites containing information are blocked. Transparency, blockpage notifications and judicial review are essential to determine whether each blocking direction is valid.</p>
<h3 style="text-align: justify; ">Section 79 and the intermediary as a judge</h3>
<p style="text-align: justify; ">Section 79 provides a safe harbour for intermediaries: if they abide by the requirements of Section 79(2), they retain immunity. But under Section 79(3)(b), intermediaries can lose their immunity from prosecution if, after receiving a takedown notice, they do not take down content in three circumstances: (1) if they have actual knowledge that third-party information within their control is being used to commit an unlawful act (i.e., by suo moto deciding the lawfulness of content); (2) if a court order requires takedown of content; (3) if a government notification requires takedown. Rule 3(4) of the Intermediaries Guidelines Rules, 2011 has a similar provision.</p>
<blockquote class="pullquote" style="text-align: justify; ">"The Supreme Court has wisely put an end to private adjudication of lawfulness. Section 79(3)(b) and Rule 3(4) have been read down to mean that the intermediary must have actual knowledge of a court order or government notification."</blockquote>
<p style="text-align: justify; ">This leads to a situation where a private intermediary is responsible for deciding what constitutes lawful content. <a href="http://cis-india.org/internet-governance/chilling-effects-on-free-expression-on-internet" target="_hplink">Previous studies</a> have shown that, when placed in such a position, intermediaries prefer overbroad blocking to escape liability. As readers, we can then only access uncontroversial content. But the freedom of speech includes, as the European Court of Human Rights emphasised in <i><a href="http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57897" target="_hplink">Otto-Preminger Institut</a></i>, the freedom to "offend, shock and disturb".</p>
<p style="text-align: justify; ">In <i>Shreya Singhal</i>, the Supreme Court has wisely put an end to private adjudication of lawfulness. Section 79(3)(b) and Rule 3(4) have been read down to mean that the intermediary must have actual knowledge of a court order or government notification. Even if an intermediary chooses not to act in response to a private takedown notice, it will retain its immunity under Section 79.</p>
<p style="text-align: justify; ">With <i>Shreya Singhal</i>, India has reaffirmed its protections for freedom of speech on the internet. One may now freely speak online without fear of illegitimate and unconstitutional prosecution. However, a re-examination of the blocking procedure, with its infirmities and direct impact on speech diversity, is essential. But today, we celebrate!</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/huffington-post-geetha-hariharan-march-26-2015-what-66-a-judgment-means-for-free-speech-online'>https://cis-india.org/internet-governance/blog/huffington-post-geetha-hariharan-march-26-2015-what-66-a-judgment-means-for-free-speech-online</a>
</p>
No publishergeethaIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceChilling Effect2015-03-27T16:50:43ZBlog EntryNo more 66A!
https://cis-india.org/internet-governance/blog/no-more-66a
<b>In a landmark decision, the Supreme Court has struck down Section 66A. Today was a great day for freedom of speech on the Internet! When Section 66A was in operation, if you made a statement that led to offence, you could be prosecuted. We are an offence-friendly nation, judging by media reports in the last year. It was a year of book-bans, website blocking and takedown requests. Facebook’s Transparency Report showed that next to the US, India made the most requests for information about user accounts. A complaint under Section 66A would be a ground for such requests.</b>
<p style="text-align: justify; ">Section 66A hung like a sword in the middle: Shaheen Dhada was arrested in Maharashtra for observing that Bal Thackeray’s funeral shut down the city, Devu Chodankar in Goa and Syed Waqar in Karnataka were arrested for making posts about Narendra Modi, and a Puducherry man was arrested for criticizing P. Chidambaram’s son. The law was vague and so widely worded that it was prone to misuse, and was in fact being misused.</p>
<p style="text-align: justify; ">Today, the Supreme Court struck down Section 66A in its judgment on a <a class="external-link" href="http://cis-india.org/internet-governance/blog/overview-constitutional-challenges-on-itact">set of petitions</a> heard together last year and earlier this year. Stating that the law is vague, the bench comprising Chelameshwar and Nariman, JJ. held that while restrictions on free speech are constitutional insofar as they are in line with Article 19(2) of the Constitution. Section 66A, they held, does not meet this test: The central protection of free speech is the freedom to make statements that “offend, shock or disturb”, and Section 66A is an unconstitutional curtailment of these freedoms. To cross the threshold of constitutional limitation, the impugned speech must be of such a nature that it incites violence or is an exhortation to violence. Section 66A, by being extremely vague and broad, does not meet this threshold. These are, of course, drawn from news reports of the judgment; the judgment is not available yet.</p>
<p style="text-align: justify; ">Reports also say that Section 79(3)(b) has been read down. Previously, any private individual or entity, and the government and its departments could request intermediaries to take down a website, without a court order. If the intermediaries did not comply, they would lose immunity under Section 79. The Supreme Court judgment states that both in Rule 3(4) of the Intermediaries Guidelines and in Section 79(3)(b), the "actual knowledge of the court order or government notification" is necessary before website takedowns can be effected. In effect, this mean that intermediaries <i>need not</i> act upon private notices under Section 79, while they can act upon them if they choose. This stops intermediaries from standing judge over what constitutes an unlawful act. If they choose not to take down content after receiving a private notice, they will not lose immunity under Section 79.</p>
<p style="text-align: justify; ">Section 69A, the website blocking procedure, has been left intact by the Court, despite infirmities such as a lack of judicial review and non-transparent operation. More updates when the judgment is made available.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/no-more-66a'>https://cis-india.org/internet-governance/blog/no-more-66a</a>
</p>
No publishergeethaCensorshipFreedom of Speech and ExpressionHomepageIntermediary LiabilityFeaturedChilling EffectSection 66AArticle 19(1)(a)Blocking2015-03-26T02:01:31ZBlog EntryDIDP Request #8: ICANN Organogram
https://cis-india.org/internet-governance/blog/didp-request-8-organogram
<b>CIS sent ICANN a request under its Documentary Information Disclosure Policy, seeking details of its oragnisational structure and headcount of all staff. CIS' request and ICANN's response are detailed below. </b>
<p style="text-align: justify; "> </p>
<h2 style="text-align: justify; ">CIS Request</h2>
<p style="text-align: justify; "><span>13 January 2015</span></p>
<p style="text-align: justify; "><span>To:</span></p>
<p style="text-align: justify; ">Mr. Steve Crocker, Chairman of the Board</p>
<p style="text-align: justify; ">Mr. Fadi Chehade, President and CEO</p>
<p style="text-align: justify; ">Mr. Samiran Gupta, ICANN India</p>
<p style="text-align: center; "><strong>Sub: ICANN organogram</strong></p>
<p style="text-align: justify; "><strong> </strong><span>In order to understand ICANN’s organizational structure, decision-making and day-to-day functioning, may we request an organogram of ICANN. We request that the organogram include ICANN’s reporting hierarchy, mentioning positions held in all departments. Wherever possible (such as middle and senior management), we request names of the ICANN staff holding the positions as well. Along with this, could you also provide a count per department of the number of ICANN staff employed in all departments as of this date?</span><span> </span></p>
<p style="text-align: justify; ">We await your favorable response and the requested information within the prescribed time limit. Please do not hesitate to contact us should you require any clarifications.</p>
<p style="text-align: justify; ">Thank you very much.</p>
<p style="text-align: justify; ">Warm regards,</p>
<p style="text-align: justify; ">Geetha Hariharan</p>
<p style="text-align: justify; ">Centre for Internet & Society</p>
<p style="text-align: justify; ">W: <a href="http://cis-india.org">http://cis-india.org</a></p>
<p style="text-align: justify; "> </p>
<h2 style="text-align: justify; ">ICANN Response</h2>
<p style="text-align: justify; ">ICANN does not provide all the information we requested, but it responded with the following:</p>
<p style="text-align: justify; ">First, ICANN has responded that its current staff headcount is approx. 310. ICANN states that it already makes publicly available an <a href="https://www.icann.org/en/system/files/files/management-org-01feb15-en.pdf">organisational chart</a>. This is immensely useful, for it sets out the reporting hierarchies at senior and mid-managerial levels. However, it doesn't tell us the organisational structure categorised by all departments and staff in the said departments. The webpages of some of ICANN's departments list out some of its staff; for instance, <a class="external-link" href="https://www.icann.org/resources/pages/about-2014-10-10-en">Contractual Compliance</a>, <a class="external-link" href="https://www.icann.org/resources/pages/gse-2012-02-25-en">Global Stakeholder Engagement</a> and <a class="external-link" href="https://www.icann.org/policy">Policy Development</a> (scroll down).</p>
<p style="text-align: justify; ">What you will notice is that ICANN provides us a list of staff, but we cannot be sure whether the team includes more persons than those mentioned. Second, a quick glance at the Policy Development staff makes clear that ICANN selects from outside this pool to coordinate the policy development. For instance, the IANA Stewardship Transition (the CWG-IANA) is supported by <a class="external-link" href="https://www.icann.org/profiles/grace-abuhamad">Ms. Grace Abuhamad</a>, who is not a member of the <a class="external-link" href="https://www.icann.org/policy">policy support staff</a>, but coordinates the IANA mailing list and F2F meetings anyway. What this means is that we're no longer certain who within ICANN is involved in policy development and support, whom they report to, and where the Chinese walls lie. This is why an organogram is necessary: the policy-making and implementation functions in ICANN may be closely linked because of staff interaction, and effective Chinese walls would benefit from public scrutiny.</p>
<p style="text-align: justify; ">Now, ICANN says that one may explore staff profiles on the <a class="external-link" href="https://www.icann.org/community/explore?profile_search%5Bbadge_filters%5D%5B%5D=staff_badge&profile_search%5Bbadge_filters%5D%5B%5D=&profile_search%5Bcountry_filters%5D%5B%5D=&profile_search%5Bicann_experience_filter%5D=&profile_search%5Big_experience_filter%5D=&profile_search%5Binterest_filters%5D%5B%5D=&profile_search%5Blanguage_filters%5D%5B%5D=&profile_search%5Bmembership_filters%5D%5B%5D=&profile_search%5Bprofile_filter%5D=&profile_search%5Bsearch_text%5D=&utf8=%E2%9C%93">Staff page</a>. While short biographies/profiles are available for most staff on the Staff page, it's unclear what departments they work in, how many staff members work each in department, whom they report to, and what the broad range of their responsibilities include.</p>
<p style="text-align: justify; ">Privacy concerns do not preclude the disclosure of such information for two reasons. First, staff profiles imply a consent to making staff information public (at least their place in the organisational structure, if not their salaries, addresses, phone extension numbers, etc.). Second, such information is necessary and helpful to scrutinise the effectiveness of ICANN's functioning. Like the example of the policy-making process mentioned above, greater transparency in internal functioning will itself serve as a check against hazards like partisanism, public comment aggregation, drafting of charters for policy-making and determining scope, etc. While the functioning itself may or need not change, scrutiny can ensure responsibility from ICANN and its staff.</p>
<p style="text-align: justify; "><span style="text-align: justify; ">ICANN's response to our DIDP request may be </span><a class="external-link" href="https://www.icann.org/en/system/files/files/cis-organogram-response-11feb15-en.pdf" style="text-align: justify; "><strong>found here</strong></a><span style="text-align: justify; ">. A short summary of our request and ICANN's response may be found </span><a href="http://cis-india.org/internet-governance/blog/table-of-cis-didp-requests/at_download/file" style="text-align: justify; "><strong>in this table (Request S. no. 8)</strong></a><span style="text-align: justify; ">.</span></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/didp-request-8-organogram'>https://cis-india.org/internet-governance/blog/didp-request-8-organogram</a>
</p>
No publishergeethaICANNDIDPTransparencyAccountability2015-03-17T11:39:16ZBlog EntryDIDP Request #7: Globalisation Advisory Groups
https://cis-india.org/internet-governance/blog/didp-request-7-globalisation-advisory-groups
<b>CIS sent ICANN a request under its Documentary Information Disclosure Policy, seeking information regarding the creation and dissolution of the President's Globalisation Advisory Groups. The GAGs were created to advise the ICANN Board on its globalisation efforts, and to address questions on Affirmation of Commitments (AOC), policy structures, legal structure, root server system, the IANA multistakeholder accountability, and Internet governance. CIS' request and ICANN's response are detailed below.</b>
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<h2>CIS Request</h2>
<p><span>12 January 2015</span></p>
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<p><span>To:<br /> Mr. Fadi Chehade, CEO and President</span></p>
<p><span> Mr. Steve Crocker, Chairman of the Board</span></p>
<p><span> Ms. Theresa Swineheart, Senior Advisor to the President on Strategy </span></p>
<p><span>Mr. Samiran Gupta, ICANN India </span></p>
<p style="text-align: center; "><span><strong>Sub: Creation and dissolution of the President’s Globalisation Advisory Groups </strong></span></p>
<p style="text-align: justify; "><span>On 17 February 2014, at a Special Meeting of the ICANN Board, the Board passed a resolution creating the President’s Globalisation Advisory Groups.</span><span>1 </span><span>Six Globalisation Advisory Groups were created, including on IANA globalization, legal structures, Internet governance, the Affirmation of Commitments, policy structures and the root server system.</span><span>2 </span><span>According to the minutes of the meeting, the Advisory Groups were to meet with the community at ICANN49 (Singapore, March 2014), make recommendations to the Board, and the Board would present their reports at ICANN50 (London, June 2014).</span><span>3 </span><span>Mr. Chehade was vested with the authority to change the Advisory Groups and their composition without the need for a further resolution, but the manner of dissolution was not laid out. </span></p>
<p style="text-align: justify; "><span>ICANN lists the Advisory Groups on its “Past Groups” page, with no further information.</span><span>4 </span><span>Presumably, the Groups remained in existence for at most one month. No explanation is provided for the reasons regarding the dissolution of all the Advisory Groups. There are no reports or transcripts of meetings with the community at ICANN49 or recommendations to Mr. Chehade or the Board.</span></p>
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<p><span>The Globalisation Advisory Groups covered issues crucial for ICANN and the global Internet governance community, including its seat (“Legal Structures”), the Affirmation of Commitments (considered critical for ICANN’s accountability), the IANA stewardship transition, and ICANN’s (increasing) involvement in Internet governance. Given this, we request the following information: </span></p>
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<ul>
<li><span>Of the six Globalisation Advisory Groups created, is any Group active as of today (12 January 2015)? </span></li>
<li><span>When and how many times did any of the Groups meet?</span></li>
<li><span>On what date were the Groups dissolved? Were all Groups dissolved on the </span><span>same date?</span></li>
<li><span>By what mechanism did the dissolution take place (oral statement, email)? If the dissolution occurred by way of email or statement, please provide a copy of the same.</span></li>
<li><span>Did any of the six Globalisation Advisory Groups present any report, advice, or recommendations to Mr. Chehade or any member(s) of the Board, prior to their dissolution? If yes, please provide the report/recommendations (if available) and/or information regarding the same.</span></li>
<li><span>Why were the Advisory Groups dissolved? Has any reason been recorded, and if not, please provide an explanation.</span></li>
</ul>
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<div class="column"><span>We await your favorable response and the requested information within the prescribed time limit. Please do not hesitate to contact us should you require any clarifications.</span></div>
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<div class="column"><span>Thank you very much.</span></div>
<p>Warm regards,<br /> Geetha Hariharan<br /> Centre for Internet & Society</p>
<ul>
</ul>
</div>
<p style="text-align: justify; "> </p>
<h2 style="text-align: justify; ">ICANN Response</h2>
<p style="text-align: justify; ">ICANN's response to this request is positive. ICANN states that the Board did indeed set up the six Globalisation Advisory Groups (GAGs) on 17 February 2014 to tackle issues surrounding ICANN's globalisation efforts. The Affirmation of Commitments (AOC), policy structures, legal structure, root server system, the IANA multistakeholder accountability, and Internet governance were issues taken up by the GAGs. However, after the NTIA made its announcement regarding the IANA transition in March 2014, the GAGs were disbanded so as to avoid duplication of work on issues that "<span>had a home in the global multistakeholder discussions". As a result, by a Board resolution dated 27 March 2014, the GAGs were dissolved. </span></p>
<p style="text-align: justify; "><span>This is an example of a good response to an information request. Some documentation regarding the creation and dissolution of the GAGs existed, such as the Board resolutions. The response points us to these documents, and summarises the reasons for the GAGs' creation and dissolution. </span></p>
<p style="text-align: justify; ">It is possible that this response is clear/comprehensive because the GAGs no longer exist, and in any event, did not perform any work worth writing about. Queries about ICANN's involvement in Internet governance (NETmundial, the NETmundial Initiative, etc.) garner responses that are, to say it informally, cage-y and surrounded by legalese.</p>
<p style="text-align: justify; ">ICANN's response to our DIDP request may be <a href="https://www.icann.org/en/system/files/files/cis-response-09feb15-en.pdf"><strong>found here</strong></a>. A short summary of our request and ICANN's response may be found <a href="http://cis-india.org/internet-governance/blog/table-of-cis-didp-requests/at_download/file"><strong>in this table (Request S. no. 7)</strong></a>.</p>
<hr size="1" style="text-align: justify; " width="33%" />
<p style="text-align: justify; "><span>[1] </span><span><i>See</i> </span><span>Approved Board Resolutions | Special Meeting of the Board</span><span>, </span><span><a class="external-link" href="https://www.icann.org/resources/board-material/resolutions-2014-02-17-en">https://www.icann.org/resources/board-material/resolutions-2014-02-17-en</a></span><span>.</span></p>
<p>[2] <i>See</i> President’s Globalisation Advisory Groups, <a class="external-link" href="https://www.icann.org/en/system/files/files/globalization-19feb14-en.pdf">https://www.icann.org/en/system/files/files/globalization-19feb14-en.pdf</a>.</p>
<p>[3] <i>See</i> Minutes | Special Meeting of the Board, <a class="external-link" href="https://www.icann.org/resources/board- material/minutes-2014-02-17-en">https://www.icann.org/resources/board- material/minutes-2014-02-17-en</a>.</p>
<p>[4] <i>See</i> Past Committees, Task Forces, and Other Groups, <a class="external-link" href="https://www.icann.org/resources/pages/past-2012-02-25-en">https://www.icann.org/resources/pages/past-2012-02-25-en</a>.</p>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/didp-request-7-globalisation-advisory-groups'>https://cis-india.org/internet-governance/blog/didp-request-7-globalisation-advisory-groups</a>
</p>
No publishergeethaICANNDIDPTransparencyAccountability2015-03-17T10:07:26ZBlog EntryDIDP Request #6: Revenues from gTLD auctions
https://cis-india.org/internet-governance/blog/didp-request-6-revenues-from-gtld-auctions
<b>CIS sent ICANN a request under its Documentary Information Disclosure Policy, seeking information regarding revenues received from gTLD auctions. CIS' request and ICANN's response are detailed below.</b>
<p style="text-align: justify; "> </p>
<h2 style="text-align: justify; ">CIS Request</h2>
<p style="text-align: justify; "><span>12 January 2015</span><span> </span></p>
<p style="text-align: justify; ">To:</p>
<p style="text-align: justify; ">Mr. Fadi Chehade, CEO and President</p>
<p style="text-align: justify; ">Mr. Steve Crocker, Chairman of the Board</p>
<p style="text-align: center; "><strong>Sub: Revenues from gTLD auctions</strong></p>
<p style="text-align: justify; "><span> </span></p>
<p style="text-align: justify; ">It is our understanding that an auction for a Generic Top Level Domain (gTLD) is used as a last-resort mechanism in order to resolve string contention, i.e., when there are groups of applications for same or confusingly similar new gTLDs. As of now, the ICANN website only furnishes information of the winning applicant and the winning price, as regards each new gTLD auction.<a href="#_ftn1">[1]</a> We have observed that information regarding the bids from all other applicants is not available. The revenue information provided to us<a href="#_ftn2">[2]</a> does not include revenues from new gTLDs.</p>
<p style="text-align: justify; ">In this regard, we request you to provide us with the following information:</p>
<p style="text-align: justify; ">(i) How many gTLDs have been sold <i>via</i> the auction process, since its inception?</p>
<p style="text-align: justify; ">(ii) What were the starting and winning bids in the ICANN auctions conducted?</p>
<p style="text-align: justify; ">(iii) What revenue has ICANN received from the gTLD auctions, since the first ICANN auction was conducted? Please also provide information about the winner (name, corporate information provided to/ available with ICANN).</p>
<p style="text-align: justify; ">(iv) How are proceeds from the gTLD auction process utilized?</p>
<p style="text-align: justify; "><span>We believe that this information will give us a framework for understanding the gTLD auction process within ICANN. Furthermore, it will assist us in understanding the manner and purpose for which the proceeds from the auctioning process are utilized, in the broader structure of ICANN transparency and accountability.</span></p>
<p style="text-align: justify; ">We hope that our request will be processed within the stipulated time period of 30 days. Do let us know if you require any clarifications on our queries.</p>
<p style="text-align: justify; ">Warm regards,</p>
<p style="text-align: justify; ">Lakshmi Venkataraman,</p>
<p style="text-align: justify; ">IV Year, NALSAR University of Law, Hyderabad,</p>
<p style="text-align: justify; "><i>for </i>Centre for Internet & Society</p>
<p style="text-align: justify; ">W: <a href="http://cis-india.org">http://cis-india.org</a></p>
<p style="text-align: justify; "> </p>
<h2 style="text-align: justify; ">ICANN Response</h2>
<p style="text-align: justify; ">ICANN's response to the above query is positive. ICANN states that all information surrounding the auctions is available on the New gTLDs microsite, and on the Auctions page: <span>http://newgtlds.icann.org/en/applicants/auctions. The current status of </span><span>auction proceeds and costs are available at </span><span>http://newgtlds.icann.org/en/applicants/auctions/proceeds,</span><span> and auction results are at </span><span>https://gtldresult.icann.org/application-result/applicationstatus/auctionresults. The utilization of proceeds from the auctions is yet to be decided by the ICANN Board:</span><span> “[auction] proceeds will be reserved and earmarked until the Board determines a plan for the appropriate use of the funds through consultation with the community. Auction proceeds are net of any Auction costs. Auction costs may include initial set-up costs, auction management fees, and escrow fees.”</span></p>
<p style="text-align: justify; "><span style="text-align: justify; ">ICANN's response to our DIDP request may be <a href="https://www.icann.org/en/system/files/files/cis-response-09feb15-en.pdf"><strong>found here</strong></a>.</span><span style="text-align: justify; "> A short summary of our request and ICANN's response may be found </span><a href="http://cis-india.org/internet-governance/blog/table-of-cis-didp-requests/at_download/file" style="text-align: justify; "><strong>in this table (Request S. no. 6)</strong></a><span style="text-align: justify; ">.</span></p>
<hr size="1" style="text-align: justify; " width="33%" />
<p style="text-align: justify; "><a href="#_ftnref1">[1]</a> See <i>Auction Results</i>, <a href="https://gtldresult.icann.org/application-result/applicationstatus/auctionresults">https://gtldresult.icann.org/application-result/applicationstatus/auctionresults</a>.</p>
<p style="text-align: justify; "><a href="#_ftnref2">[2]</a> See <i>ICANN reveals hitherto undisclosed details of domain names revenues</i>, <a href="http://cis-india.org/internet-governance/blog/cis-receives-information-on-icanns-revenues-from-domain-names-fy-2014">http://cis-india.org/internet-governance/blog/cis-receives-information-on-icanns-revenues-from-domain-names-fy-2014</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/didp-request-6-revenues-from-gtld-auctions'>https://cis-india.org/internet-governance/blog/didp-request-6-revenues-from-gtld-auctions</a>
</p>
No publishergeethaICANNDIDPTransparencyAccountability2015-03-10T10:59:37ZBlog EntryDIDP Request #5: The Ombudsman and ICANN's Misleading Response to Our Request
https://cis-india.org/internet-governance/blog/didp-request-5-the-ombudsman-and-icanns-misleading-response-to-our-request-1
<b>CIS sent ICANN a request under its Documentary Information Disclosure Policy, seeking details of the complaints received and resolved, parties involved and the nature of complaints under the Ombudsman process. CIS' request and ICANN's response are detailed below. ICANN's response is misleading in its insistence on confidentiality of all Ombudsman complaints and resolutions.</b>
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<h2 style="text-align: justify; ">CIS Request</h2>
<p style="text-align: justify; "><span>26 December 2014</span></p>
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<p><span>To:<br /> Mr. Steve Crocker, Chairman of the Board </span></p>
<p><span>Mr. Fadi Chehade, CEO and President </span></p>
<p><span>Mr. Chris LaHatte, Ombudsman, ICANN </span></p>
<p style="text-align: center; "><span><strong>Sub: Details regarding complaints submitted to the ICANN Ombudsman </strong></span></p>
<p><span>We are very pleased to note that ICANN’s transparency and accountability mechanisms include maintaining a free, fair and impartial ombudsman. It is our understanding that any person with a complaint against the ICANN Board, staff or organization, may do so to the designated ombudsman.[1]</span><span> </span><span>We also understand that there are cases that the ICANN ombudsman does not have the authority to address. </span></p>
<p><span>In order to properly assess and study the efficiency and effectiveness of the ombudsman system, we request you to provide us with the following information: </span></p>
<p><span>(i) A compilation of all the cases that have been decided by ICANN ombudsmen in the history of the organization. </span></p>
<p><span>(ii) The details of the parties that are involved in the cases that have been decided by the ombudsmen. </span></p>
<p><span>(iii)A description of the proceedings of the case, along with the party that won in each instance. </span></p>
<p><span>Further, we hope you could provide us with an answer as to why there have been no ombudsman reports since the year 2010, on the ICANN website.[2]</span><span> </span><span>Additionally, we would like to bring to your notice that the link that provides the ombudsman report for the year 2010 does not work.</span></p>
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<p><span>In order to properly assess the mechanism that ICANN uses for grievance redressal, it would be necessary to examine the details of all the cases that ICANN ombudsmen have presided over in the past. In this regard, kindly provide us with the above information.</span></p>
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<p><span>We do hope that you will be able to furnish this information to us within the stipulated time period of 30 days. Do not hesitate to contact us if you have any doubts regarding our queries. Thank you so much. </span></p>
<p><span>Yours sincerely,<br /> Lakshmi Venkataraman<br /> NALSAR University of Law, Hyderabad, </span><span>for </span><span>Centre for Internet & Society<br /> W: http://cis-india.org</span></p>
<p> </p>
<h2>ICANN Response</h2>
<p style="text-align: justify; ">In its response, ICANN declines our request on grounds of confidentiality. It refers to the ICANN Bylaws on the office of the Ombudsman to argue that all matters brought before the Ombudsman "shall be treated as confidential" and the Ombudsman shall "<span>take all reasonable steps necessary to preserve the privacy of, and to avoid harm to, those parties not involved in the complaint being investigated by the Ombudsman". ICANN states that the Ombudsman publishes Annual Reports, in which he/she provides a "consolidated analysis of the year's complaints and resolutions", including "</span><span>a description of any trends or common elements of complaints received". </span><span>In sum, ICANN states that m</span><span>aking Ombudsman Requests public would violate ICANN Bylaws, and topple the independence and integrity of the Ombudsman.</span></p>
<p style="text-align: justify; ">These are, perhaps, valid reasons to decline our DIDP request. But it is important to investigate ICANN's reasons. The <span>ICANN Board appoints the Ombudsman for 2 year terms, under </span><a href="https://www.icann.org/resources/pages/governance/bylaws-en#V">Article V of ICANN’s Bylaws</a><span>. As we note </span><a href="http://cis-india.org/internet-governance/blog/where-does-icann2019s-money-come-from-we-asked-they-don2019t-know">in an earlier post</a><span>, the Ombudsman’s principal function is to receive and dispose of <span style="text-align: justify; ">complaints about unfair treatment by the ICANN Board, Staff or constituency.</span></span><span> He/she reports to the ICANN Board alone. He/she also </span><span>reports on the categories of complaints he receives, and statistics regarding decisions in his </span><a href="https://www.icann.org/resources/pages/reports-96-2012-02-25-en">Annual Reports</a><span>; no details are forthcoming for stated reasons of confidentiality and privacy. </span><span>It is clear, therefore, that the Ombudsman receives and disposes of complaints under a procedure that is inadequately transparent. </span></p>
<p style="text-align: justify; "><span>ICANN argues, however, that for reasons of confidentiality and integrity of the Ombudsman office, ICANN is unable to disclose details regarding Ombudsman complaints, the complainants/respondents and a description of the proceedings (including the decision/resolution). Indeed, ICANN states its</span><span> "Bylaws and <a href="https://www.icann.org/en/system/files/files/ombudsman-framework-26mar09-en.pdf">the Ombudsman Framework</a> obligates the Ombudsman to treat all matters brought before him as confidential and 'to take reasonable steps necessary to preserve the privacy of, and to avoid harm to, those parties not involved in the complaint being investigated by the Ombudsman'.” For this reason, ICANN considers that "D</span><span>isclosing details about the parties involved and the nature of the cases that have been decided by the Ombudsmen would not only compromise the confidentiality of the Ombudsman process but would also violate the ICANN Bylaws and the Ombudsman Framework." </span></p>
<p style="text-align: justify; "><span>While the privacy of parties both involved and "not involved in the complaint" can be preserved (by redacting names, email addresses and other personal identification), h</span><span>ow valid is ICANN's dogged insistence on confidentiality and non-disclosure? Let's look at Article V of ICANN's Bylaws and the Ombudsman Framework both.</span></p>
<h3 style="text-align: justify; ">Do ICANN Bylaws bind the Ombudsman to Confidentiality?</h3>
<p style="text-align: justify; ">Under Article V, Section 1(2) of ICANN's Bylaws, the Ombudsman is appointed by the ICANN Board for a 2 year term (renewable). As noted earlier, the Ombudsman's principal function is to<span> </span><span>“provide an independent internal evaluation of complaints by members of the ICANN community who believe that the ICANN staff, Board or an ICANN constituent body has treated them unfairly” or inappropriately (Art. V, Section 2). The Ombudsman is not a judge; his conflict resolution tools are "</span><span>negotiation, facilitation, and 'shuttle diplomacy'. </span></p>
<p style="text-align: justify; "><span>According to Art. V, Section 3(3), the Ombudsman has access to "all necessary information and records from staff and constituent bodies" to evaluate complaints in an informed manner. While the Ombudsman can <i>access</i> these records, he may not "publish if otherwise confidential". When are these records confidential, then? Section 3(3) supplies the answer. The confidentiality obligations are as "imposed by the complainant or <span style="text-align: justify; ">any generally applicable confidentiality policies adopted by ICANN". For instance, the complainant can waive its confidentiality by publishing the text of its complaint <span style="text-align: justify; ">and the Ombudsman's response to the same </span>(such as the <a href="http://www.internetcommerce.org/ica-tells-icann-ombudsman-office-its-irt-report-tardy-nonresponsive-and-non-persuasive/">Internet Commerce Association's complaint</a> regarding the Implementation Review Team under the new gTLD program), or a complaint may be publicly <a href="http://lists.ncuc.org/pipermail/ncuc-discuss/2012-November/010974.html">available on a listserv</a>. In any event, there is no blanket confidentiality obligation placed on the Ombudsman under ICANN's Bylaws.</span></span></p>
<p style="text-align: justify; "><span><span style="text-align: justify; "><span style="text-align: justify; ">Moreover, the Ombudsman also publishes Annual Reports,</span><span style="text-align: justify; "> in which he/she provides a "consolidated analysis of the year's complaints and resolutions", including "</span><span style="text-align: justify; ">a description of any trends or common elements of complaints received". That is, the Ombudsman's Annual Report showcases a graph comparing the increase in the number of complaints, categories of complaints (i.e., whether the complaints fall within or outside of the Ombudsman's jurisdiction), and a brief description of the Ombudsman's scope of resolution and response. The Annual Reports indicate that the mandate of the Ombudsman's office is extremely narrow. In 2014, for instance, 75 out of 467 complaints were <a href="https://www.icann.org/en/system/files/files/annual-report-2014-27jan15-en.pdf">within Mr. LaHatte's jurisdiction</a> (page 5), but he notes that his ability to intervene is limited to "failures in procedure". <a href="https://www.icann.org/en/system/files/files/final-recommendations-31dec13-en.pdf">As an input to the ATRT2 Report noted</a>, the Office of the Ombudsman “appears so restrained and contained” (page 53). As the ATRT2 noted, "</span></span></span><span>ICANN needs to reconsider the Ombudsman’s charter and the Office’s role as a symbol of good governance to be further incorporated in transparency processes"; the Office's transparency leaves much to be desired.</span></p>
<p style="text-align: justify; "><span><span style="text-align: justify; "><span style="text-align: justify; ">But I digress.</span></span></span></p>
<p style="text-align: justify; "><span><span style="text-align: justify; ">The Ombudsman is authorised to make reports on any complaint and its resolution (or lack thereof) to the ICANN Board, and unless the Ombudsman says so <i>in his sole discretion</i>, his reports are to be posted on the website (Art. V, Section 4(4)). <span style="text-align: justify; ">The Ombudsman can also report on individual requests, such as </span><a href="https://omblog.icann.org/index.html%3Fp=1015.html" style="text-align: justify; ">Mr. LaHatte's response to a complaint regarding a DIDP denial</a><span style="text-align: justify; "> (cached). </span>Some reports are actually available on the Ombudsman page; the last published report dates back to 2012, though in 2013 and 2014, the Ombudsman dealt with more complaints within his jurisdiction than in 2012 or prior. </span></span><span>So ICANN's argument that disclosing the information we ask for in our DIDP Request would violate ICANN Bylaws and the confidentiality of the Ombudsman is misleading. </span></p>
<h3 style="text-align: justify; ">Does the Ombudsman Framework Prohibit Public Reporting?</h3>
<p style="text-align: justify; ">So if ICANN Bylaws do not <i>ipso facto</i> bind the Ombudsman's complaint and conflict resolution process to confidentiality, does the Ombudsman Framework do so?</p>
<p style="text-align: justify; ">The Ombudsman does indeed have confidentiality obligations under <a href="https://www.icann.org/en/system/files/files/ombudsman-framework-26mar09-en.pdf" style="text-align: justify; ">the Ombudsman Framework</a> (page 4). All matters brought before the Ombudsman shall be treated as confidential, and the identities of parties not involved in the complaint are required to be protected. The Ombudsman may reveal the identity of the complainant to the ICANN Board or Staff only to further the resolution of a complaint (which seems fairly obvious); this obligation is extended to ICANN Board and Staff as well.</p>
<p style="text-align: justify; ">As the Framework makes crystal clear, the <i>identity of complainants</i> are to be kept confidential. Nothing whatsoever binds the Ombudsman from revealing the stakeholder group or affiliation of the complainants - and these are possibly of more importance. What stakeholders most often receive unfair or inappropriate treatment from ICANN Board, Staff or constituent bodies? Does business suffer more, or do non-commercial users, or indeed, governments? It is good to know <a href="https://www.icann.org/en/system/files/files/annual-report-2014-27jan15-en.pdf">what countries the complaints come from (page 4-5)</a>, but given ICANN's insistence on its multi-stakeholder model as a gold standard, it is important to know what stakeholders suffer the most in the ICANN system.</p>
<p style="text-align: justify; ">In fact, in the first page, the Ombudsman Framework says this: "<span><strong>The Ombudsman may post complaints and resolutions to a dedicated portion of the ICANN website</strong> (http://www.icann.org/ombudsman/): (i) <strong>in order to promote an understanding of the issues in the ICANN community</strong>; (ii) to raise awareness of administrative fairness; and (iii) <strong>to allow the community to see the results of similar previous cases</strong>. These postings will be done in a <strong>generic manner</strong> to protect the confidentiality and privilege of communicating with the Office of Ombudsman." But the ICANN website does not, in fact, host records of any Ombudsman complaints or resolutions; it links you only to the Annual Reports and Publications. </span></p>
<p style="text-align: justify; "><span>As I've written before, the Annual Reports provide no details regarding the nature of each complaint, their origins or resolution, and are useful if the only information we need is bare statistics of the <i>number of complaints received</i>. That is useful, but it's not enough. Given that the Ombudsman Framework <i>does</i> allow complaint/resolution reporting, it is baffling that ICANN's response to our DIDP request chooses to emphasise only the confidentiality obligations, while conveniently leaving out the parts enabling and encouring reporting. </span></p>
<h3 style="text-align: justify; ">Should ICANN Report the Ombudsman Complaints?</h3>
<p style="text-align: justify; ">Of course it should. The Ombudsman is aimed at filling an integral gap in the ICANN system - he/she listens to complaints about treatment by the ICANN Board, Staff or constituent bodies. As the discussions surrounding the appeal procedures in the CWG-Names show, and as the ATRT2 recommendations on Reconsideration and Independent Review show, conflict resolution mechanisms are crucial in any environment, not least a multi-stakeholder one. And in an organisation that leaves much desired by way of accountability and transparency, not reporting on complaints against the Board, staff or constituencies seems a tad irresponsible.</p>
<p style="text-align: justify; ">If there are privacy concerns regarding the identities of complainants, their personal identifying information can be redacted. Actually, <a href="https://omb.icann.org/portal/complaint.php">in the complaint form</a>, adding a waiver-of-confidentiality tick-box would solve the problem, allowing the complainant to choose whether to keep his/her complaint unreportable. But the details of the respondents ought to be reported; as the entity responsible and accountable, ICANN should disclose whom complaints have been made against.</p>
<p style="text-align: justify; ">ICANN's response to our DIDP request may be <a href="https://www.icann.org/en/system/files/files/cis-ombudsman-response-27jan15-en.pdf"><b>found here</b></a>. A short summary of our request and ICANN's response may be found <a href="http://cis-india.org/internet-governance/blog/table-of-cis-didp-requests/at_download/file"><strong>in this table (Request S. no. 5)</strong></a>.</p>
<p style="text-align: justify; "> </p>
<hr size="1" style="text-align: justify; " width="33%" />
<p style="text-align: justify; "><span>[1] </span><span><i>See</i> </span><span>What the Ombudsman can do for you</span><span>, </span><span>https://www.icann.org/resources/pages/contact- 2012-02-25-en</span><span>.</span></p>
<p style="text-align: justify; "><span>[2] <i>See</i> Annual Reports & Publications, https://www.icann.org/resources/pages/reports-96-2012- 02-25-en.</span></p>
</div>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/didp-request-5-the-ombudsman-and-icanns-misleading-response-to-our-request-1'>https://cis-india.org/internet-governance/blog/didp-request-5-the-ombudsman-and-icanns-misleading-response-to-our-request-1</a>
</p>
No publishergeethaICANNDIDPTransparencyAccountability2015-03-06T11:11:31ZBlog EntryDIDP Request #4: ICANN and the NETmundial Principles
https://cis-india.org/internet-governance/blog/didp-request-4-icann-and-the-netmundial-principles
<b>CIS sent ICANN a request under its Documentary Information Disclosure Policy, seeking details of ICANN's implementation of the NETmundial Principles that it has endorsed widely and publicly. CIS' request and ICANN's response are detailed below.</b>
<p style="text-align: justify; "> </p>
<h3 style="text-align: justify; ">CIS Request</h3>
<p style="text-align: justify; "><span>27 December 2014</span></p>
<p style="text-align: justify; ">To:</p>
<p style="text-align: justify; ">Mr. Fadi Chehade, CEO and President</p>
<p style="text-align: justify; ">Mr. Steve Crocker, Chairman of the Board</p>
<p style="text-align: justify; ">Mr. Cherine Chalaby, Chair, Finance Committee of the Board</p>
<p style="text-align: justify; ">Mr. Xavier Calvez, Chief Financial Officer</p>
<p style="text-align: center; "><strong>Sub: Details of implementation by and within ICANN of the NETmundial Outcome Document (April ‘14)</strong></p>
<p style="text-align: justify; "><span> </span></p>
<p style="text-align: justify; ">We express our appreciation at ICANN’s prompt acknowledgement of our previous DIDP request, and await the information. We would, in the meanwhile, request information regarding ICANN’s internal measures to implement the NETmundial Outcome Document.<a href="#_ftn1">[1]</a><span> </span></p>
<p style="text-align: justify; ">In a post titled <i>Turning Talk Into Action After NETmundial,</i><a href="#_ftn2">[2]</a> Mr. Chehade emphasized the imperative to carry forward the NETmundial principles to fruition. In nearly every public statement, Mr. Chehade and other ICANN representatives have spoken in praise and support of NETmundial and its Outcome Document.</p>
<p style="text-align: justify; ">But in the absence of binding value to them, self-regulation and organizational initiatives pave the way to adopt them. There must be concrete action to implement the Principles. In this regard, we request information about mechanisms or any other changes afoot within ICANN, implemented internally in recognition of the NETmundial Principles.</p>
<p style="text-align: justify; ">At the IGF in Istanbul, when CIS’ Sunil Abraham raised this query,<a href="#_ftn3">[3]</a> Mr. Chehade responded that mechanisms ought to and will be undertaken jointly and in collaboration with other organisations. However, institutional improvements are intra-organisational as well, and require changes <i>within </i>ICANN. An example would be the suggestions to strengthen the IGF, increase its term, and provide financial support (some of which are being achieved, though ICANN’s financial contribution to IGFSA is incongruous in comparison to its financial involvement in the NETmundial Initiative).<span> </span></p>
<p style="text-align: justify; ">From ICANN, we have seen consistent championing of the controversial NETmundial Initiative,<a href="#_ftn4">[4]</a> and contribution to the IGF Support Association.<a href="#_ftn5">[5]</a> There are also mechanisms instituted for IANA Stewardship Transition and Enhancing ICANN Accountability,<a href="#_ftn6">[6]</a> as responses to the NTIA’s announcement to not renew the IANA functions contract and related concerns of accountability.</p>
<p style="text-align: justify; ">In addition to the above, we would like to know what ICANN has done to implement the NETmundial Principles, internally and proactively.</p>
<p style="text-align: justify; ">We hope that our request will be processed within the stipulated time period of 30 days. Do let us know if you require any clarifications on our queries.</p>
<p style="text-align: justify; ">Thank you very much.</p>
<p style="text-align: justify; ">Warm regards,</p>
<p style="text-align: justify; ">Geetha Hariharan</p>
<p style="text-align: justify; ">Centre for Internet & Society</p>
<p style="text-align: justify; ">W: <a href="http://cis-india.org">http://cis-india.org</a></p>
<p style="text-align: justify; "> </p>
<h3 style="text-align: justify; ">ICANN Response</h3>
<p style="text-align: justify; ">ICANN's response to the above request disappointingly linked to the very same blogpost we note in our request, <i>Turning Talk Into Action After NETmundial</i>. Following this, ICANN points us to their involvement in the NETmundial Initiative. On the question of internal implementation, ICANN's response is defensive, to say the least. "ICANN is not the home for the implementation of the NETmundial Principles", they say. In any event, ICANN defends that it already implements the NETmundial Principles in its functioning, a response that comes as a surprise to us. "<span>Many of the NETmundial Principles are high-level statements that permeate through the </span><span>work of any entity – particularly a multistakeholder entity like ICANN – that is interested </span><span>in the upholding of the inclusive, multistakeholder process within the Internet governance </span><span>framework", notes ICANN's response. Needless to say, ICANN's response falls short of responding to our queries. </span></p>
<p style="text-align: justify; "><span>Finally, ICANN notes that our request is beyond the scope of the DIDP, as it does not relate to ICANN's operational activities. Notwithstanding that our query does in fact seek ICANN's operationalisation of the NETmundial Principles, we are now confused as to where to go to seek this information from ICANN. If the DIDP is not the effective transparency tool it is aimed to be, who in ICANN can provide answers to these questions?</span></p>
<p style="text-align: justify; "><span>ICANN's response may be <a href="https://www.icann.org/en/system/files/files/cis-netmundial-response-27jan15-en.pdf"><strong>found here</strong></a>. A short summary of our request and ICANN's response may be found <a href="https://cis-india.org/internet-governance/blog/table-of-cis-didp-requests/at_download/file"><strong>in this table (Request S. no. 4)</strong></a>.</span></p>
<hr size="1" style="text-align: justify; " width="33%" />
<p style="text-align: justify; "><a href="#_ftnref1">[1]</a> See <i>NETmundial Multi-stakeholder Statement</i>, <a href="http://netmundial.br/wp-content/uploads/2014/04/NETmundial-Multistakeholder-Document.pdf">http://netmundial.br/wp-content/uploads/2014/04/NETmundial-Multistakeholder-Document.pdf</a>. <i> </i></p>
<p style="text-align: justify; "><a href="#_ftnref2">[2]</a> See Chehade, <i>Turning Talk Into Action After NETmundial</i>, <a href="http://blog.icann.org/2014/05/turning-talk-into-action-after-netmundial/">http://blog.icann.org/2014/05/turning-talk-into-action-after-netmundial/</a>.</p>
<p style="text-align: justify; "><a href="#_ftnref3">[3]</a> See <i>ICANN Open Forum</i>, 9<sup>th</sup> IGF 2014 (Istanbul, Turkey), <a href="https://www.youtube.com/watch?v=Cio31nsqK_A">https://www.youtube.com/watch?v=Cio31nsqK_A</a>.</p>
<p style="text-align: justify; "><a href="#_ftnref4">[4]</a> See McCarthy, <i>I’m Begging You To Join</i>, The Register (12 December 2014), <a href="http://www.theregister.co.uk/2014/12/12/im_begging_you_to_join_netmundial_initiative_gets_desperate/">http://www.theregister.co.uk/2014/12/12/im_begging_you_to_join_netmundial_initiative_gets_desperate/</a>.</p>
<p style="text-align: justify; "><a href="#_ftnref5">[5]</a> See <i>ICANN Donates $50k to Internet Governance Forum Support Association</i>, <a href="https://www.icann.org/resources/press-material/release-2014-12-18-en">https://www.icann.org/resources/press-material/release-2014-12-18-en</a>.</p>
<p style="text-align: justify; "><a href="#_ftnref6">[6]</a> See <i>NTIA IANA Functions’ Stewardship Transition & Enhancing ICANN Accountability Processes</i>, <a href="https://www.icann.org/stewardship-accountability">https://www.icann.org/stewardship-accountability</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/didp-request-4-icann-and-the-netmundial-principles'>https://cis-india.org/internet-governance/blog/didp-request-4-icann-and-the-netmundial-principles</a>
</p>
No publishergeethaICANNDIDPTransparencyAccountability2015-03-05T08:28:44ZBlog EntryDIDP Request #3: Cyber-attacks on ICANN
https://cis-india.org/internet-governance/blog/didp-request-3-cyber-attacks-on-icann
<b>CIS sent ICANN a request under its Documentary Information Disclosure Policy, seeking details of cyber-attacks on ICANN, and ICANN's internal and external responses to the same. CIS' request and ICANN's response are detailed below.</b>
<p style="text-align: justify; "> </p>
<h2 style="text-align: justify; ">CIS Request</h2>
<p style="text-align: justify; "><span>24 December 2014</span></p>
<p style="text-align: justify; ">To:</p>
<p style="text-align: justify; ">Mr. Steve Crocker, Chairman of the Board</p>
<p style="text-align: justify; ">Mr. Fadi Chehade, CEO and President</p>
<p style="text-align: justify; ">Mr. Geoff Bickers, Team Lead, ICANN Computer Incident Response Team (CIRT) & Director of Security Operations</p>
<p style="text-align: justify; ">Mr. John Crain, Chief Security, Stability and Resiliency Officer</p>
<p style="text-align: justify; ">Members of the ICANN-CIRT & ICANN Security Team</p>
<p style="text-align: center; "><strong>Sub: Details of cyber-attacks on ICANN</strong></p>
<p style="text-align: justify; "><span> </span></p>
<p style="text-align: justify; ">We understand that ICANN recently suffered a spear-phishing attack that compromised contact details of several ICANN staff, including their email addresses; these credentials were used to gain access to ICANN’s Centralized Zone Data System (CZDS).<a href="#_ftn1">[1]</a> We are glad to note that ICANN’s critical functions and IANA-related systems were not affected.<a href="#_ftn2">[2]</a></p>
<p style="text-align: justify; ">The incident has, however, raised concerns of the security of ICANN’s systems. In order to understand when, in the past, ICANN has suffered similar security breaches, we request details of all cyber-attacks suffered or thought/suspected to have been suffered by ICANN (and for which, therefore, investigation was carried out within and outside ICANN), from 1999 till date. This includes, naturally, the recent spear-phishing attack.</p>
<p style="text-align: justify; ">We request information regarding, <i>inter alia</i>,</p>
<p style="text-align: justify; ">(1) the date and nature of all attacks, as well as which ICANN systems were compromised,</p>
<p style="text-align: justify; ">(2) actions taken internally by ICANN upon being notified of the attacks,</p>
<p style="text-align: justify; ">(3) what departments or members of staff are responsible for security and their role in the event of cyber-attacks,</p>
<p style="text-align: justify; ">(4) the role and responsibility of the ICANN-CIRT in responding to cyber-attacks (and when policies or manuals exist for the same; if so, please share them),</p>
<p style="text-align: justify; ">(5) what entities external to ICANN are involved in the identification and investigation of cyber-attacks on ICANN (for instance, are the police in the jurisdiction notified and do they investigate? If so, we request copies of complaints or information reports),</p>
<p style="text-align: justify; ">(6) whether and when culprits behind the ICANN cyber-attacks were identified, and</p>
<p style="text-align: justify; ">(7) what actions were subsequently taken by ICANN (ex: liability of ICANN staff for security breaches should such a finding be made, lawsuits or complaints against perpetrators of attacks, etc.).</p>
<p style="text-align: justify; ">Finally, we also request information on the role of the ICANN Board and/or community in the event of such cyber-attacks on ICANN. Also, when was the ICANN-CIRT set up and how many incidents has it handled since its existence? Do there exist contingency procedures in the event of compromise of IANA systems (and if so, what)?</p>
<p style="text-align: justify; ">We hope that our request will be processed within the stipulated time period of 30 days. Do let us know if you require any clarifications on our queries.</p>
<p style="text-align: justify; ">Thank you very much.</p>
<p style="text-align: justify; ">Warm regards,</p>
<p style="text-align: justify; ">Geetha Hariharan</p>
<p style="text-align: justify; ">Centre for Internet & Society</p>
<p style="text-align: justify; ">W: <a href="http://cis-india.org">http://cis-india.org</a></p>
<p style="text-align: justify; "> </p>
<h2 style="text-align: justify; ">ICANN Response</h2>
<p style="text-align: justify; ">ICANN responded to our request by noting that it is vague and broad in both time and scope. In response, ICANN has provided information regarding certain cyber-incidents already in the public domain, while noting that the term "cyber-attack" is both wide and vague. While the information provided is undoubtedly useful, it is anecdotal at best, and does not provide a complete picture of ICANN's history of vulnerability to cyber-attacks or cyber-incidents, or the manner of its internal response to such incidents, or of the involvement of external law enforcement agencies or CIRTs in combating cyber-incidents on ICANN.</p>
<p style="text-align: justify; ">ICANN's response may be <a href="https://www.icann.org/en/system/files/files/cis-response-23jan15-en.pdf"><b>found here</b></a>. A short summary our request and ICANN's response may be found <a href="https://cis-india.org/internet-governance/blog/table-of-cis-didp-requests/at_download/file"><b>in this table (Request S. no. 3)</b></a>.</p>
<hr size="1" style="text-align: justify; " width="33%" />
<p style="text-align: justify; "><a href="#_ftnref1">[1]</a> See<i> ICANN targeted in spear-phishing attack</i>, <a href="https://www.icann.org/news/announcement-2-2014-12-16-en">https://www.icann.org/news/announcement-2-2014-12-16-en</a>. <i> </i></p>
<p style="text-align: justify; "><a href="#_ftnref2">[2]</a> See <i>IANA Systems not compromised</i>, <a href="https://www.icann.org/news/announcement-2014-12-19-en">https://www.icann.org/news/announcement-2014-12-19-en</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/didp-request-3-cyber-attacks-on-icann'>https://cis-india.org/internet-governance/blog/didp-request-3-cyber-attacks-on-icann</a>
</p>
No publishergeethaICANNDIDPTransparencyAccountability2015-03-05T08:16:26ZBlog EntryDIDP Request #2: Granular Revenue/Income Statements from ICANN
https://cis-india.org/internet-governance/blog/didp-request-2
<b>CIS sent ICANN a request under its Documentary Information Disclosure Policy, seeking current and historical details of ICANN's income/revenue from its various sources. CIS' request and ICANN's response are detailed below.</b>
<p style="text-align: justify; "> </p>
<h2 style="text-align: justify; ">CIS Request</h2>
<p style="text-align: justify; "><span style="text-decoration: underline;">22 December 2014</span><span> </span></p>
<p style="text-align: justify; ">To:</p>
<p style="text-align: justify; ">Mr. Cherine Chalaby, Chair, Finance Committee of the Board</p>
<p style="text-align: justify; ">Mr. Xavier Calvez, Chief Financial Officer</p>
<p style="text-align: justify; ">Mr. Samiran Gupta, ICANN India</p>
<p style="text-align: justify; ">All other members of Staff involved in accounting and financial tasks<span> </span></p>
<p style="text-align: center; "><strong>Sub: Request for granular income/revenue statements of ICANN from 1999-2014</strong><span> </span></p>
<p style="text-align: justify; ">Earlier this month, on 3 December 2014, Mr. Samiran Gupta presented CIS with detailed and granular information regarding ICANN’s domain names income and revenues for the fiscal year ended June 30, 2014. This was in response to several requests made over a few months. The information we received is available on our website.<a href="#_ftn1">[1]</a><span> </span></p>
<p style="text-align: justify; ">The information mentioned above was, <i>inter alia</i>, extremely helpful in triangulating ICANN’s reported revenues, despite and in addition to certain inconsistencies between the Annual Report (FY14) and the information provided to us.</p>
<p style="text-align: justify; ">We recognize that ICANN makes public its current and historical financial information to a certain extent. Specifically, its Operating Plan and Budget, Audited Financial Statements, Annual Reports, Federal and State Tax Filings, Board Compensation Report and ccTLD Contributions Report are available on the website.<a href="#_ftn2">[2]</a><span> </span></p>
<p style="text-align: justify; ">However, a detailed report of ICANN’s income or revenue statement, listing all vendors and customers, is not available on ICANN’s website. Our research on accountability and transparency mechanisms in Internet governance, specifically of ICANN, requires information in such granularity. <strong>We request, therefore, historical data re: income and revenue from domain names (1999-2014), in a manner as detailed and granular as the information referenced in FN[1]</strong>. We would appreciate if such a report lists all legal entities and individuals who contribute to ICANN’s domain names income/ revenue.</p>
<p style="text-align: justify; ">We look forward to the receipt of this information within the stipulated period of 30 days. Please feel free to contact us in the event of any doubts regarding our queries.<span> </span></p>
<p style="text-align: justify; ">Thank you very much.</p>
<p style="text-align: justify; ">Warm regards,</p>
<p style="text-align: justify; ">Geetha Hariharan</p>
<p style="text-align: justify; ">Centre for Internet & Society</p>
<p style="text-align: justify; ">W: <a href="http://cis-india.org">http://cis-india.org</a></p>
<p style="text-align: justify; "> </p>
<h2 style="text-align: justify; ">ICANN Response</h2>
<p style="text-align: justify; ">ICANN's response to CIS's request can be <a href="https://www.icann.org/en/system/files/files/cis-response-21jan15-en.pdf"><strong>found here</strong></a>. A short summary of our request and ICANN's response may be found <a href="https://cis-india.org/internet-governance/blog/table-of-cis-didp-requests/at_download/file"><strong>in this table (Request S. no. 2)</strong></a>.</p>
<p style="text-align: justify; "> </p>
<hr size="1" style="text-align: justify; " width="33%" />
<p style="text-align: justify; "><a href="#_ftnref1">[1]</a> See <i>ICANN reveals hitherto undisclosed details of domain names revenues</i>, <a href="http://cis-india.org/internet-governance/blog/cis-receives-information-on-icanns-revenues-from-domain-names-fy-2014">http://cis-india.org/internet-governance/blog/cis-receives-information-on-icanns-revenues-from-domain-names-fy-2014</a>.</p>
<p style="text-align: justify; "><a href="#_ftnref2">[2]</a> See <i>Historical Financial Information for ICANN</i>, <a href="https://www.icann.org/resources/pages/historical-2012-02-25-en">https://www.icann.org/resources/pages/historical-2012-02-25-en</a>.</p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/didp-request-2'>https://cis-india.org/internet-governance/blog/didp-request-2</a>
</p>
No publishergeethaICANNDIDPTransparencyAccountability2015-03-05T08:07:02ZBlog Entry