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

[Alan Greenberg]

I'm not really expecting legal counsel 
participation until they have something 
definitive to say. but I could be wrong.

We are an "implementation REVIEW team" our job is 
to review plans, not write those plans. Of course 
if we have something constructive to contribute, 
we should not be prevented from doing so.

Certainly it would be good to get an update on 
where were are now in the legal review, and for 
that matter, exactly what it is that they are, or 
are going to, review. Whether directly from legal 
mouths or indirectly via other ICANN staff.

Alan

At 13/08/2014 03:10 PM, Amr Elsadr wrote:
>Hi Alan,
>
>I can’t say I disagree with any of your 
>rationale. It makes sense to me. Question 
>though; is the IRT supposed to work on the 
>implementation plan details, or is that supposed 
>to come from staff with us weighing in with 
>feedback and observations? The language in the 
>operating procedures on that seem kinda fuzzy to 
>me, and my understanding is that IRTs have not been common in the past.
>
>Still
, according to the schedule shared, the 
>legal review should be well underway (having 
>started in July). I’m just wondering wether any 
>plans have already been set or not, and whether 
>any of those plans have been acted upon. One of 
>the reasons I’m asking because I’m assuming (I’m 
>making a lot of assumptions at this point) we 
>didn’t have folks from ICANN legal on the last 
>call. I don’t recall any of them participating 
>during the conversation that took place, or 
>confirming their being on the call during the roll-call.
>
>In any case, I agree (Alan) that the legal 
>review shouldn’t put any other work on hold. I 
>had always assumed (there I go again) that the 
>legal review would probably run in parallel with 
>the implementation of the rest of the 
>recommendations made by the WG. Just wondering 
>where we’re at with that right now.
>
>Thanks again.
>
>Amr
>
>On Aug 13, 2014, at 8:04 PM, Alan Greenberg 
><<mailto:alan.greenberg at mcgill.ca>alan.greenberg at mcgill.ca> wrote:
>
>>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
>>>_______________________________________________
>>>Gnso-impl-thickwhois-rt mailing list
>>><mailto:Gnso-impl-thickwhois-rt at icann.org>Gnso-impl-thickwhois-rt at icann.org
>>>https://mm.icann.org/mailman/listinfo/gnso-impl-thickwhois-rt
>
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