[Gnso-impl-thickwhois-rt] Task 4 of the Thick WHOIS Implementation Plan (Legal Review)

[Alan Greenberg]

Amr, I am clearly not ICANN legal staff, but I will take a stab at 
this, and it is basically the same comment I made during the last 
call. At this stage, we are obliged to come up with a plan based on 
our best understanding of the tasks. It is possible that the legal 
review will introduce something new that we have not taken into 
account, and that could alter, delay or even cancel the entire 
project. I don't think we have much choice but to plan for what we 
know now, and adjust as necessary if and when the situation changes.

The alternative is to defer doing anything until the legal review is 
over that could add a lot of time to the overall process if no or 
easily rectifiable stumbling blocks are uncovered. What is at risk 
here is ICANN (and to a much lesser extent this IRT) doing work that 
later need to be redone or altered. In my mind, a reasonable risk. 
This is no different from any business decision made without full 
knowledge of all possible issues (ie the norm!).

Alan

At 13/08/2014 11:27 AM, Amr Elsadr wrote:
>Hi,
>
>I'd like to revisit two of the topics discussed during the last IRT 
>call; the legal review, and the level of detail of the current plan 
>to address the different implementation tasks (but actually that 
>specific to the legal review).
>
>The third recommendation of the "thick" WHOIS PDP WG was:
>
>"As part of the implementation process a legal review of law 
>applicable to the transition of data from a thin to thick model that 
>has not already been considered in the EWG memo is undertaken and 
>due consideration is given to potential privacy issues that may 
>arise from the discussions on the transition from thin to thick 
>Whois, including, for example, guidance on how the long-standing 
>contractual requirement that registrars give notice to, and obtain 
>consent, from each registrant for uses of any personally 
>identifiable data submitted by the registrant should apply to 
>registrations involved in the transition. Should any privacy issues 
>emerge from these transition discussions that were not anticipated 
>by the WG and which would require additional policy consideration, 
>the Implementation Review Team is expected to notify the GNSO 
>Council of these so that appropriate action can be taken."
>
>I'm curious considering the IRT's proposed schedule to address the 
>legal review between July and November of 2014. Is there a plan to 
>address this recommendation, and if so, what are the details?
>
>This was probably the most controversial topic of discussion during 
>the WG's deliberations, and unfortunately remained unresolved. The 
>idea (if I recall correctly) was for the legal review to take action 
>to mitigate any potential conflicts between the implementation of 
>the "thick" WHOIS policy and legal jurisdictions with strict privacy 
>and data protection laws. This, I believe, was true for both "data 
>at rest" and "data at motion". I personally felt it was even more 
>relevant concerning "data at motion" since implementation of a 
>"thick" WHOIS policy will require a great deal of registrant data 
>being transferred across legal jurisdictions for both existing 
>"thin" gTLD registries as well as all future gTLD registries in 
>subsequent rounds of new gTLDs in the future.
>
>Any insight on how this is being handled would be really appreciated 
>at this point, especially from ICANN legal staff, who I assume have 
>a significant role in implementing this recommendation.
>
>Thanks.
>
>Amr
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