Subject: [hrpc] re draft guidelines -- comments and a question

From: Sandra Braman <[email-masked]>
Date: Tue, 1 Feb 2022 11:02:46 -0600

*Comment -- Guidelines as a Genre*

There appears to be a significant genre confusion about the draft
guidelines. The authors decline to engage with national and regional human
rights law and its implementations because, they say, they are relying on
international frameworks that do not do this. However, the international
frameworks to which they are referring are international treaties,
political documents that always refer to concepts in their most abstract
formulations in order to achieve agreement.

This document, however, is not a treaty. It is a set of "guidelines," the
purpose of which -- by definition -- is to translate abstract concepts into
operational terms so that they can be applied, monitored, and evaluated. In
a non-trivial example with importance to human rights of how that works
even for international organizations, after the United Nations Security
Council passed Resolution 1373 in September of 2001, regarding how
signatory states were required to deal with terrorism, the UN sent teams
around the world to work with national governments on how to change their
laws, one by one, in accord with the UN resolution. That is pertinent to
international human rights because many of those changes demanded of
national laws undermined human rights protections in notable ways. (I can
point you to scholarship on this if of interest.)

There is an enormous scholarly literature on international human rights
law, none of which is referred to in this draft of the document. Except for
those items that are specific to the history and/or operations of this body
of law at the international level, a relatively small proportion of that
literature, the rest of it looks at how that body of law is translated into
laws and practices, and their consequences, at the national and regional
levels. This body of literature should be relied upon in the analysis
attempted here.

A second body of work that can be useful here is that produced by human
rights monitoring organizations. The Office of the High Commissioner on
Human Rights Training Manual on Human Rights Monitoring is all about
looking at national and regional laws. For each international human rights
instrument there is a monitoring organization with detailed requirements
for state reports about what they are doing to comply that are pertinent to
what this draft guidelines document attempts to do. There are indicators
that would be useful for this effort (eg,
https://www.ohchr.org/Documents/Publications/Human_rights_indicators_en.pdf),
with the additional methodological challenge of needing to draw a causal
link between the protocols and the human rights outcome of concern. There
is a scholarly literature on human rights indicators; in the scholarly
framework, protocols-related concerns fall in the "process" category. The
World Bank has indicators, I believe there are non-profits that do, etc.
Indicators are focused on consequences as observable in what happens to
people on the ground, but studying these would provide the authors of this
document insight into what can be incorporated into this text as
protocol-specific indicators.

Of course it would be impossible for the authors of this document to work
through guidelines for how to operationalize abstract human rights concepts
as applied to Internet protocols within every nation's legal system and
policy implementation practices. The positive recommendation is to do so
for a sample of national and/or regional government cases as chosen
theoretically by types of political and legal system as they are currently
being distinguished by political scientists and legal scholars. The
typology or typologies used for case selection will determine how many
cases would need to be addressed to accomplish this thoroughly enough for
the purpose.

*Comment -- What does this mean for specific protocols?*

Because by definition guidelines are about how to operationalize abstract
concepts, follow-through regarding specific protocols is also a critical
element of this document. It is understood that, as the authors point out,
this will vary by protocol, but the fact of variance is not a justification
for not doing that work. The positive recommendation is to work through a
sample of protocol cases, including at least one protocol in each of the
major areas of protocol development effort as demarked by current IETF
working groups.

*Question -- Testing?*

The authors claim that this document has been "tested." What does that
mean? Is there documentation of protocol designers using this document to
analyze what they are doing and of their decision-making regarding the
design of specific protocols having done so? If so, can you please point us
towards that?

Respectfully,

Sandra Braman

---

From: Gurshabad Grover <[email-masked]>
Date: Wed, 2 Feb 2022 15:09:24 +0530

Dear Sandra,

Thank you for your comments. Please see in-line.

On 2/1/22 22:32, Sandra Braman wrote:
> _Comment -- Guidelines as a Genre_
> 
> [...]
> 
> This document, however, is not a treaty. It is a set of "guidelines," 
> [...]
> law, none of which is referred to in this draft of the document. [...]
> 
> rights monitoring organizations. 
> 
> [...]

I fully agree that the work you are describing – analysis of scholarship 
on application of international human rights, the work of human rights 
organisations, and applications in domestic law – will be useful to this 
research group (and in fact to the guidelines document itself).

Establishing the theoretical foundation of draft-guidelines was done in 
RFC8280. [0] You will see that some of what you described is done there 
already. The current draft-guidelines has a very narrow goal: to update 
the guidelines section present in RFC8280.

(This is also not to say that RFC8280 is or should be the sole work on 
the topic, I think I am with you in that the research group should have 
more of the kind of work you are suggesting.)

> 
> _Comment -- What does this mean for specific protocols?_
> _
> _
> Because by definition guidelines are about how to operationalize 
> abstract concepts, follow-through regarding specific protocols is also a 
> critical element of this document. It is understood that, as the authors 
> point out, this will vary by protocol, but the fact of variance is not a 
> justification for not doing that work. The positive recommendation is to 
> work through a sample of protocol cases, including at least one protocol 
> in each of the major areas of protocol development effort as demarked by 
> current IETF working groups.
> 
> _Question -- Testing?_
> _
> _
> mean? Is there documentation of protocol designers using this document 
> to analyze what they are doing and of their decision-making regarding 
> the design of specific protocols having done so? If so, can you please 
> point us towards that?
> 

For more detailed case studies of specific protocols analysed with the 
human rights framework, please see section 5.3.1 of RFC8280.

Work in the same vein has continued. Please see [1] for examples of 
reviewers applying draft-guildeines to specific protocols, and also 
document authors (/protocol designers) having done that themselves.

/

Hope this is useful, please let me know if you need anything else.

-Gurshabad

[0] https://datatracker.ietf.org/doc/rfc8280/
[1] https://github.com/IRTF-HRPC/reviews

---

From: Sandra Braman <[email-masked]>
Date: Wed, 2 Feb 2022 05:33:27 -0600

Actually, RFC 8280's reference list includes multiple cites to
international treaties and some other items about Internet design issues
from a human rights perspective at an abstract level, but only 1 citation
to a law review article dealing with international human rights law and
that is in the relatively small proportion of such items that stays at the
international level. The literature I am pointing to is not there. My
comments were follow-ups to your response, Gurshabad, to concerns expressed
by Colin Perkins. I will re-post in-line with that conversation. Had tried
this alternative approach to simplify the read, but will return to the
thread.

Thanks for the pointer to where this document has been used to analyze
protocols.

On Wed, Feb 2, 2022 at 3:39 AM Gurshabad Grover <[email-masked]>
wrote:

> Dear Sandra, Thank you for your comments. Please see in-line. On 2/1/22
> 22:32, Sandra Braman wrote: > _Comment -- Guidelines as a Genre_ > > [...]
> > > This document, however, is not a treaty. It is a set of "guidelines," >
> ZjQcmQRYFpfptBannerStart
> This Message Is From an External Sender
> This message came from outside your organization.
> ZjQcmQRYFpfptBannerEnd
>
> Dear Sandra,
>
> [0] https://urldefense.com/v3/__https://datatracker.ietf.org/doc/rfc8280/__;!!KwNVnqRv!S58MwYgVzKSC3JT2TbaizBn0C6dofIGZOOiL2a5ddy6GL4_f_57_HwkrC7PuWg$
> [1] https://urldefense.com/v3/__https://github.com/IRTF-HRPC/reviews__;!!KwNVnqRv!S58MwYgVzKSC3JT2TbaizBn0C6dofIGZOOiL2a5ddy6GL4_f_57_HwkkTdNdbg$
>
>

---

From: Niels ten Oever <[email-masked]>
Date: Wed, 2 Feb 2022 12:43:00 +0100

On 01-02-2022 18:02, Sandra Braman wrote:
> Of course it would be impossible for the authors of this document to work through guidelines for how to operationalize abstract human rights concepts as applied to Internet protocols within every nation's legal system and policy implementation practices. The positive recommendation is to do so for a sample of national and/or regional government cases as chosen theoretically by types of political and legal system as they are currently being distinguished by political scientists and legal scholars. The typology or typologies used for case selection will determine how many cases would need to be addressed to accomplish this thoroughly enough for the purpose.

Dear Sandra,

I agree this would be useful as a work item for this group, but I do not see why this need to be part of _this_ document.

I am happy to work with you on this as a new document, which could even be an update to the guidelines draft and RFC8280.

If you think it is useful, we could even add this a 'future work' in the guidelines-draft.

Best,

Niels

-- 
Niels ten Oever, PhD
Postdoctoral Researcher - Media Studies Department - University of Amsterdam
Affiliated Faculty - Digital Democracy Institute - Simon Fraser University
Non-Resident Fellow 2022-2023 - Center for Democracy & Technology
Associated Scholar - Centro de Tecnologia e Sociedade - Fundação Getúlio Vargas
Research Fellow - Centre for Internet and Human Rights - European University Viadrina

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Read my latest article on Internet infrastructure governance in Globalizations here: https://www.tandfonline.com/doi/full/10.1080/14747731.2021.1953221