[council] [Ext] Re: WHOIS Conflicts with Local Law - Alternate Triggers

Mon Nov 13 20:52:13 UTC 2017

Thank you Marika. I wasn't implying this neither. Was just my typical
German way in shortening thought processes and approaches. Hug! Erika

On Mon, Nov 13, 2017 at 9:21 PM, Marika Konings <marika.konings at icann.org>
wrote:

> Thanks, Erika, I did not mean to imply that you had not read it carefully,
> I just wanted to make sure that everyone is aware that although the focus
> of the review has been on the trigger, the procedure itself includes a
> number of additional steps.
>
>
>
> Best regards,
>
>
>
> Marika
>
>
>
> *From: *Erika Mann <erika at erikamann.com>
> *Date: *Monday, November 13, 2017 at 07:27
> *To: *Marika Konings <marika.konings at icann.org>
> *Cc: *Heather Forrest <haforrestesq at gmail.com>, "council at gnso.icann.org" <
> council at gnso.icann.org>
> *Subject: *[Ext] Re: [council] WHOIS Conflicts with Local Law - Alternate
> Triggers
>
>
>
> Thank you Marika -
>
>
>
> I read the text behind the link pretty careful but will read it again.
>
>
>
> My previous comment relates in particular to point:
>
>
>
> *"**1.3 Depending on the specific circumstances of the **WHOIS** Proceeding,
> the registrar/registry may request that **ICANN** keep all correspondence
> between the parties confidential pending the outcome of the **WHOIS*
> * Proceeding. **ICANN** will ordinarily respond favorably to such
> requests to the extent that they can be accommodated with other legal
> responsibilities and basic principles of transparency applicable to *
> *ICANN** operations."*
>
>    - My point is that 'correspondence' shall be kept confidential but the
>    outcome, including the reference to the national law requirement and the
>    agreement of the waiver or the special bilateral clauses, shall be
>    published
>
> Will review the complete text again and will make additional comments, if
> needed.
>
>
>
> Thank you again!
>
> Erika
>
>
>
> On Mon, Nov 13, 2017 at 2:17 PM, Marika Konings <marika.konings at icann.org>
> wrote:
>
> Erika, all,
>
>
>
> As a reminder, the trigger is only the first step of the procedure
> (notification), there are five subsequent steps which need to be taken
> following notification, namely:
>
>
>
>    - Consultation
>    - General Counsel Analysis and Recommendation
>    - Resolution
>    - Public Notice
>    - Ongoing Review
>
>
>
> For further details on each of these steps, please see
> https://www.icann.org/resources/pages/whois-privacy-
> conflicts-procedure-2008-01-17-en[icann.org]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_whois-2Dprivacy-2Dconflicts-2Dprocedure-2D2008-2D01-2D17-2Den&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=2qa6_Sn-WLvrXFzUPs4I4lkxJQriVLPwC5AodTsc7Z0&s=QhYuNtVg0Q1OGs0Twvjcev8PDIFgV351u0QY87v-L_I&e=>.
>
>
>
>
> Best regards,
>
>
>
> Marika
>
>
>
> *From: *council <council-bounces at gnso.icann.org> on behalf of Erika Mann <
> erika at erikamann.com>
> *Date: *Monday, November 13, 2017 at 04:37
> *To: *Heather Forrest <haforrestesq at gmail.com>
> *Cc: *"council at gnso.icann.org" <council at gnso.icann.org>
> *Subject: *Re: [council] WHOIS Conflicts with Local Law - Alternate
> Triggers
>
>
>
> Heather, Keith -
>
>
>
> how about mentioning that all these waivers and derogations based on
> national laws/requested by opinions from law firms, shall continue to be
> made public.
>
>
>
> Kind regards,
>
> Erika
>
>
>
> On Mon, Nov 13, 2017 at 7:11 AM, Heather Forrest <haforrestesq at gmail.com>
> wrote:
>
> Dear Keith,
>
>
>
> Thank you very much indeed for taking the lead on this initiative.
>
>
>
> Paul and I appreciate the alternatives you have set out and are taking
> input from our IPC colleagues. We're aiming to offer a substantive reply no
> later than this Friday to ensure this gets across the line by the 20th
> document deadline.
>
>
>
> Best wishes,
>
>
>
> Heather
>
>
>
> On Sat, Nov 11, 2017 at 4:53 AM, Drazek, Keith via council <
> council at gnso.icann.org> wrote:
>
>
>
> Hello fellow Councilors,
>
>
>
> As discussed in Abu Dhabi, I’m re-surfacing the previously drafted motion
> (thanks Marika) and some proposed language for consideration at our
> November Council meeting.
>
>
>
> We need to respond to Akram’s letter on this topic. It could either be via
> a motion or in a letter response.
>
>
>
> Substantively, here are two options:
>
>
>
> Alternate Trigger #1: Written Legal Opinion
>
>
>
> In the absence of a Whois Proceeding, a registry or registrar may present
> to ICANN a written legal opinion from a nationally recognized law firm or
> attorney in good standing that identifies any portion of the collection,
> retention, display or dissemination of any data element specified by the
> ICANN contract in question violates or is likely to violate applicable law,
> statute or regulation.  Such written opinion shall identify the
> provision(s) of the ICANN contract in question that are identified to be in
> conflict and the manner in which the registry or registrar, by fulfilling
> the terms of the contract, is likely to violate applicable law, statute or
> regulation.
>
>
>
> Alternate Trigger #2: Previously granted waiver
>
>
>
> If (i) it was previously determined that a provision in the RA, RAA or
> other contractual obligation conflicted with applicable law, statute, or
> regulation such that ICANN granted an exception under the terms of this
> Procedure and (ii) the registry or registrar is subject to the same
> applicable law, statute, or regulation, then the registry or registrar may
> request the same exception. Such request shall be granted by ICANN unless
> ICANN provides reasonable justification for not granting the request, in
> which case the registry or registrar may utilize another trigger.
>
>
>
> Thanks and regards,
>
> Keith
>
>
>
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