Subject: Re: [hrpc] comments, draft association

From: Mallory Knodel <[email-masked]>
Date: Fri, 5 Mar 2021 10:26:12 -0500

Hi Sandra,

Thanks for your review and your patience in waiting for the authors to 
respond. With four authors it takes some time to parse thorough reviews 
at this point. We also have to honour the decisions that the group has 
made about this draft in the past, and so mostly this amounts to a lot 
of re-reading discussions in order to respond to new recommendations!

Ok, so on with it in-line below (combining your two emails):

On 2/6/21 3:35 AM, Sandra Braman wrote:
> The international treaties discussed in this draft are not a part of 
> the scholarly literature covered in literature reviews, but the legal 
> authorities on the basis of which claims made here are justified.  
> Although I agree with the authors that this is not the place for a 
> comprehensive discussion and synthesis of the scholarly literature, 
> coverage of the pertinent treaty provisions /should/ be 
> comprehensive.  Treaty provisions only matter, though, where treaties 
> have been ratified.  It would also be useful to the reader to know 
> the extent to which these provisions have been interpreted in courts 
> in cases that have come their way involving assembly and association.

This draft is trying to fulfill the explicit language from the HRPC 
charter, the relevant portion of which is:

"The Human Rights Protocol Considerations Research Group is chartered to 
research whether standards and protocols can enable, strengthen or 
threaten human rights, as defined in the Universal Declaration of Human 
Rights (UDHR) [1] and the International Covenant on Civil and Political 
Rights (ICCPR) [2], specifically, but not limited to the right to 
freedom of expression and the right to freedom of assembly."

Therefore to talk about the regulation of code is out of scope.

> There is reference to protection of the rights of assembly and 
> association in national constitutions and laws.  It would strengthen 
> the argument being made here to provide information on how many 
> geopolitically recognized states (that is, those recognized by the UN) 
> protect these rights and trends in this area.  There is discussion by 
> American authors of American law in the literature review, by European 
> Union groups about European law, and about international law -- can 
> literature about national law by non-American authors about 
> non-American treatment of assembly and association also be included?

Another really fantastic review we received in this period was from Lisa 
Vermeer at International Center For Not-For-Profit Law who helped us 
strengthen the human rights language. Those changes are in the current 
version. I think this might have been crossed with her review.

But as it concerns national laws, again, those are out of scope for HRPC 
and in particular this draft because we are making a higher level 
connection, that perhaps at some point could lead to deeper research as 
you suggest.

> The word "jurisprudence" shows up towards the close of the piece but 
> jurisprudence is actually not discussed here.� An analysis of how 
> courts have treated assembly and association in the digital 
> environment would be invaluable.� There is a significant scholarly 
> literature on this (that could usefully be expanded), but it is 
> strongly recommended that the authors also actually go to the court 
> opinions, which are themselves sources of law as well and thus 
> included in this section of these comments.
>
Similarly, this would be out of scope for this doc, albeit interesting!
> The issue of the relative importance of the private sector in many of 
> the factors affecting the rights to assembly and association runs 
> throughout the document.  It is now widely recognized that, 
> effectively, "governance" now includes not just what governments do, 
> but also the formal and informal processes, rules, and practices of 
> private sector entities; indeed, ICANN, the IAB, and the IETF are 
> important examples of this.  The relative importance of third party 
> intermediaries in facilitating, controlling, or preventing assembly 
> and association makes this particularly important.  Finally and far 
> from trivially, since so many of those involved in the IETF are 
> employees of corporations, including attention to this would speak 
> very directly to them.
>
This is a really interesting idea. If we limit ourselves to the IETF 
context, eg internet infrastructure companies, we could easily take this 
idea further to look at implementations. I think that would be future 
work. It would hopefully rely on this draft established in the IRTF as a 
reference. So, what could we put in the draft that would point to or 
support work like this if it were to exist?

> It would thus significantly strengthen this document to include a 
> section on treatment of assembly and association by those who analyze, 
> audit, and develop best practices (/cum/ rules) for private sector 
> entities.  What does Ranking Digital Rights, for example, have to say 
> about this?  Whether such entities do or do not explicitly address 
> association and assembly, the reader wants to know.  This section 
> should look both at what such auditing and best practice-setting 
> organizations are doing, and at the significant literature on 
> corporate social responsibility in the digital environment.
>
To be clear, what you're suggesting is important work, but it isn't 
going to be meaningfully treated in this draft. Moving this work as a 
separate draft would likely get a lot of support, however. <chair hat 
on> I would support your starting work on such a document! </chair hat off>
> _Cases_
> _
> _
We're planning to change this to "analysis" instead of cases, since it's 
not rigorous enough at this time (point taken).
> _Writing Issues_
Most of these have been addressed in the recent version, but we'll keep 
vigilant.
> _Utility for IETF Readers_
> _
> _
> Assuming you would like this to be actually used by IETF participants, 
> can you include, in the conclusion, a checklist of things that those 
> involved in protocol design and network architecture can actually look 
> out for in the course of their work?�

We have explicitly decided as a group that we wouldn't do this, yet, 
because it's just establishing the relationship first. Deeper research a 
la draft-guidelines follows this pattern, however.

Thanks again,

-Mallory

-- 
Mallory Knodel
CTO, Center for Democracy and Technology
gpg fingerprint :: E3EB 63E0 65A3 B240 BCD9 B071 0C32 A271 BD3C C780

---

From: Eliot Lear <[email-masked]>
Date: Mon, 8 Mar 2021 10:08:27 +0100

Hi Mallory,

>> The international treaties discussed in this draft are not a part of the scholarly literature covered in literature reviews, but the legal authorities on the basis of which claims made here are justified.  Although I agree with the authors that this is not the place for a comprehensive discussion and synthesis of the scholarly literature, coverage of the pertinent treaty provisions should be comprehensive.  Treaty provisions only matter, though, where treaties have been ratified.  It would also be useful to the reader to know the extent to which these provisions have been interpreted in courts in cases that have come their way involving assembly and association.
> This draft is trying to fulfill the explicit language from the HRPC charter, the relevant portion of which is:
> 
> "The Human Rights Protocol Considerations Research Group is chartered to research whether standards and protocols can enable, strengthen or threaten human rights, as defined in the Universal Declaration of Human Rights (UDHR) [1] and the International Covenant on Civil and Political Rights (ICCPR) [2], specifically, but not limited to the right to freedom of expression and the right to freedom of assembly."
> 

There is one aspect that could be better drawn out: is the interpretation of these two documents consistent with the interpretation by most governments?  If it is not, would proposed applications present difficulties in implementing the protocols approved by SDOs such as the IETF, and under what circumstances?  I am specifically thinking of the examples you have in the draft (spam, DDOS) as well as perhaps something around lawful intercept (not entirely tangential to freedom of assembly).  I don’t see that outside the scope of the charter.

Also, we just had a live example in the US of use of technology to organize what could alternatively be described as a peaceful assembly or an insurrection.  Surely this draft would be remiss to not explore the technology implications, given the use of encryption by some of the parties.

Eliot

---

From: Mark Perkins <[email-masked]>
Date: Mon, 8 Mar 2021 20:52:40 +1100

Eliot

"is the interpretation of these two documents consistent with the 
interpretation by most governments?"

Here I think we run into real world problems:

What do the documents (UDHR & ICCPR) state?

What is the interpretation of these two documents by the relevant UN 
body (usually found in General Comments of UN Human Rights Committee, 
but also occassionally International Tribunals, though these are usually 
Regional decisions rather than International in the Global sense) - eg 
General comment No. 37(2020) on theright of peaceful assembly (article 
21), 17September 2020

https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=8&DocTypeID=11

What is the interpretation of 'most' governments? Clearly this question 
will have multiple responses, as often there is no agreement, in fact 
there is clear disagreement

What is the difference between all of the above, esp UN interpretation & 
interpretation by 'most' governments OR the different governmental 
interpretations?

Mark P.

Le 08/03/2021 à 20:08, Eliot Lear a écrit :
>>> the scholarly literature covered in literature reviews, but the 
>>> legal authorities on the basis of which claims made here are 
>>> justified.  Although I agree with the authors that this is not the 
>>> place for a comprehensive discussion and synthesis of the scholarly 
>>> literature, coverage of the pertinent treaty provisions /should/ be 
>>> comprehensive.  Treaty provisions only matter, though, where 
>>> treaties have been ratified.  It would also be useful to the reader 
>>> to know the extent to which these provisions have been interpreted 
>>> in courts in cases that have come their way involving assembly and 
>>> association.
>>
>> "The Human Rights Protocol Considerations Research Group is chartered 
>> to research whether standards and protocols can enable, strengthen or 
>> threaten human rights, as defined in the Universal Declaration of 
>> Human Rights (UDHR) [1] and the International Covenant on Civil and 
>> Political Rights (ICCPR) [2], specifically, but not limited to the 
>> right to freedom of expression and the right to freedom of assembly."
>>
> There is one aspect that could be better drawn out: is the 
> interpretation of these two documents consistent with the 
> interpretation by most governments?  If it is not, would proposed 
> applications present difficulties in implementing the protocols 
> approved by SDOs such as the IETF, and under what circumstances?  I am 
> specifically thinking of the examples you have in the draft (spam, 
> DDOS) as well as perhaps something around lawful intercept (not 
> entirely tangential to freedom of assembly).  I don’t see that outside 
> the scope of the charter.
>
> Also, we just had a live example in the US of use of technology to 
> organize what could alternatively be described as a peaceful assembly 
> or an insurrection.  Surely this draft would be remiss to not explore 
> the technology implications, given the use of encryption by some of 
> the parties.
>
> Eliot
>
>
>
>
> _______________________________________________
> hrpc mailing list
> [email-masked]
> https://www.irtf.org/mailman/listinfo/hrpc

-- 
L'absence de virus dans ce courrier électronique a été vérifiée par le logiciel antivirus Avast.
https://www.avast.com/antivirus

---

From: Eliot Lear <[email-masked]>
Date: Mon, 8 Mar 2021 11:06:46 +0100

Hi Mark,

> What is the interpretation of 'most' governments? Clearly this question will have multiple responses, as often there is no agreement, in fact there is clear disagreement

Good point.  That in itself is good to understand.  One of the challenges I’ve faced in other domains like during the 2014(?) Budapest Convention review has been potential conflicting regulatory requirements.  To be clear, I’m not suggesting so wide a scope, but rather a focus on how our protocol suite development needs to consider these conflicts.
> What is the difference between all of the above, esp UN interpretation & interpretation by 'most' governments OR the different governmental interpretations?
> 

I like the latter- “different government interpretations”.  That in itself can highlight problems that the IETF can’t solve, but others should.

By the way, real world problems are good problems for this group to address (IMHO).

Eliot