[IAG-WHOIS conflicts] Discussion paper for 1 April 2015 meeting
Raymond HO
arbitrator at raymondho.com
Wed Apr 1 02:51:54 UTC 2015
Hello everyone,
I have just taken a quick look at the “latest” ICANN approved form of Registry Agreement for the new gTLD (attached). If I may, I just wish to highlight clause 2.5 on page 3 regarding “Publication of Registration Data” that provides “Registry Operator shall provide public access to registration data in accordance with Specification 4 attached hereto (“Specification 4”)[ at page 61]; and clause 7.6 regarding “Amendments and Waivers” on pages 23-29 of this Agreement that might be of interest to us.
Kind regards,
Raymond
From: Raymond HO
Sent: Wednesday, April 01, 2015 9:54 AM
To: Mary Wong
Cc: whois-iag-volunteers at icann.org
Subject: Re: [IAG-WHOIS conflicts] Discussion paper for 1 April 2015 meeting
Thanks very much, Mary and Jamie, for the clarification.
I am an independent arbitrator with experience in dealing with domain name disputes for many years. Please accept my apologies for missing the IAG conference calls due largely to the different time-zones that such calls were arranged. But I have followed closely the discussions by our IAG members.
I share the value of the gTLD WHOIS public service. Leaving the policy review as advocated by some IAG members aside, I think we have to be realistic with the current system in place.
First, the ICANN contract provision obligates Registrars or Registries to collect, display and distribute personal data of domain name registrants via the gTLD WHOIS service. Second, certain local/national personal data privacy legislation might prohibit a Registrar or Registry to comply with this contractual obligation in full or in part. Third, IAG was asked to develop a procedure for dealing with such situation. That has led IAG to consider the question of the “triggers”. Various triggers have been discussed and identified by IAG in the previous conference calls. These include a legal opinion given by local Counsel, a preliminary ruling by the local/national data privacy authority, enforcement notice served on the registrar/registry I think the key consideration is how a Registrar/Registry can discharge the burden to “credibly demonstrate that it is legally prevented by local/national privacy laws or regulations from fully complying with applicable provisions of its ICANN contract regarding the collection, display and distribution of personal data via the gTLD WHOIS service.” This burden of proof is clearly on the civil standard of balance of probabilities. In my view, the “credibly demonstrate” requirement does not alter this standard of proof. It simply requires the registrar/registry to act in good faith to demonstrate a prima facie case. Obviously, it is open to ICANN as the other contractual party to rebut if a prima facie case has been shown. On this analysis, I am in favour of a wide but non-exhaustive list of circumstances that would give rise to a “trigger”.
Kind regards,
Raymond
___________________________________________________
RAYMOND HO
Independent Arbitrator
Suite 21, Level 4, 401-3, Cyberport 1, 100 Cyberport Road, Hong Kong.
Email: arbitrator at raymondho.com
From: Mary Wong
Sent: Wednesday, April 01, 2015 6:40 AM
Cc: whois-iag-volunteers at icann.org
Subject: Re: [IAG-WHOIS conflicts] Discussion paper for 1 April 2015 meeting
Hello everyone,
To follow up on Jamie’s note and as some IAG members may not be familiar with ICANN’s policy development processes, I’d like to clarify that revisiting the underlying Policy in this case would be a matter within the remit of the GNSO. This is because the GNSO is the body responsible for developing substantive policies concerning generic top-level domains (gTLDs), a role that is specified in the ICANN Bylaws.
As Jamie has mentioned, it is open to the IAG to recommend that the GNSO consider reviewing the Policy, but the actual decision whether to initiate such a review would be a decision taken by the GNSO Council. The Council makes that decision after a series of prescribed steps are taken, a process designed to ensure that the issue has been fully scoped, and community input provided and considered (more details on the process are in the GNSO’s PDP Manual, among other governing documents: http://gnso.icann.org/council/annex-2-pdp-manual-13nov14-en.pdf).
In the present case, it may be helpful to note that the Policy adopted by the GNSO Council in late 2005 appears to be relatively general in nature. As such, making quite a few changes to the current procedure could still fall within the scope of the Policy. Before determining whether a review of the Policy itself is desirable, therefore, the IAG may wish to consider whether (and if so, how) the current procedure ought to be changed to suit current needs. The earlier paper that was put out for public comment, the subsequent report of public comments received and the discussion paper circulated by Jamie are intended to assist the IAG with this task.
For your reference, the current Policy reads as follows:
"In order to facilitate reconciliation of any conflicts between local/national mandatory privacy laws or regulations and applicable provisions of the ICANN contract regarding the collection, display and distribution of personal data via the gTLD WHOIS service, ICANN should:
a.. Develop and publicly document a procedure for dealing with the situation in which a registrar or registry can credibly demonstrate that it is legally prevented by local/national privacy laws or regulations from fully complying with applicable provisions of its ICANN contract regarding the collection, display and distribution of personal data via the gTLD WHOIS service.
a.. Create goals for the procedure which include:
Ensuring that ICANN staff is informed of a conflict at the earliest appropriate juncture;
Resolving the conflict, if possible, in a manner conducive to ICANN's Mission, applicable Core Values and the stability and uniformity of the Whois system;
Providing a mechanism for the recognition, if appropriate, in circumstances where the conflict cannot be otherwise resolved, of an exception to contractual obligations to those registries/registrars to which the specific conflict applies with regard to collection, display and distribution of personally identifiable data via the gTLD WHOIS service; and
Preserving sufficient flexibility for ICANN staff to respond to particular factual situations as they arise.
a.. The GNSO recommends the ICANN staff consider the advice given in the task force report as to a recommended procedure.”
I hope this background is helpful.
Thanks and cheers
Mary
Mary Wong
Senior Policy Director
Internet Corporation for Assigned Names & Numbers (ICANN)
Telephone: +1 603 574 4892
Email: mary.wong at icann.org
From: Jamie Hedlund <jamie.hedlund at icann.org>
Date: Tuesday, March 31, 2015 at 08:16
To: Christopher Wilkinson <cw at christopherwilkinson.eu>
Cc: "whois-iag-volunteers at icann.org" <whois-iag-volunteers at icann.org>
Subject: Re: [IAG-WHOIS conflicts] Discussion paper for 1 April 2015 meeting
Thanks again, Christopher. There is of course no limit to what the IAG may discuss but there is a limit as to what the IAG may do. What you seem to advocate is not a change in the procedure (within the IAG’s mandate) but a change in the policy (beyond the IAG’s mandate). While the IAG could recommend that the GNSO revisit the underlying policy, the IAG does not have the authority to change it. Please let me know if that’s not clear. Thanks.
Best,
Jamie
Jamie Hedlund
VP, Strategic Programs
Global Domains Division
ICANN
+1.202.374.3969 (m)
+1.202.570.7125 (d)
jamie.hedlund at icann.org
From: Christopher Wilkinson <cw at christopherwilkinson.eu>
Date: Tuesday, March 31, 2015 at 3:49 AM
To: Jamie Hedlund <jamie.hedlund at icann.org>
Cc: "whois-iag-volunteers at icann.org" <whois-iag-volunteers at icann.org>
Subject: Re: [IAG-WHOIS conflicts] Discussion paper for 1 April 2015 meeting
Dear Jamie:
Thankyou. I see in the mission and scope:
<<As part of its deliberations, the IAG should, at a minimum, consider the following issues that were highlighted in the recent Report of Public Comments on this topic. … etc.>>
I suggest that this gives the IAG-WHOIS enough scope to address some of the real issues in addition to the specific points that have been identified to date in that document.
Regards
CW
On 31 Mar 2015, at 00:21, Jamie Hedlund <jamie.hedlund at icann.org> wrote:
Thanks, Christopher. Kindly refer to the mission and scope for a description of this IAG's mandate.
Best,
Jamie
On Mar 30, 2015, at 6:00 PM, Christopher Wilkinson <cw at christopherwilkinson.eu> wrote:
Jamie: One should understand that one is not looking for a 'trigger' atall.
Rather, for spontaneous conformance, by ICANN, to applicable law.
CW
On 30 Mar 2015, at 21:49, Jamie Hedlund <jamie.hedlund at icann.org> wrote:
Christopher,
Thanks and understood. Before there can be consensus on “Block exemption by jurisdiction” it would seem that the IAG would first need to agree on what can trigger a request for an exemption. When that discussion is exhausted it would make sense to discuss your proposal. Thanks.
Best,
Jamie
Jamie Hedlund
VP, Strategic Programs
Global Domains Division
ICANN
+1.202.374.3969 (m)
+1.202.570.7125 (d)
jamie.hedlund at icann.org
From: Christopher Wilkinson <cw at christopherwilkinson.eu>
Date: Monday, March 30, 2015 at 3:34 PM
To: Jamie Hedlund <jamie.hedlund at icann.org>
Cc: "whois-iag-volunteers at icann.org" <whois-iag-volunteers at icann.org>
Subject: Re: [IAG-WHOIS conflicts] Discussion paper for 1 April 2015 meeting
Dear Jamie:
Thankyou. Noted. I suggest we take AOB first on the agenda, in case anyone needs to leave the call early.
Best regards
CW
On 30 Mar 2015, at 21:09, Jamie Hedlund <jamie.hedlund at icann.org> wrote:
Christopher and Stephanie,
We can discuss your proposed topics under AOB at the end of the meeting. Thanks.
Best,
Jamie
Jamie Hedlund
VP, Strategic Programs
Global Domains Division
ICANN
+1.202.374.3969 (m)
+1.202.570.7125 (d)
jamie.hedlund at icann.org
From: Christopher Wilkinson <cw at christopherwilkinson.eu>
Date: Monday, March 30, 2015 at 1:55 PM
To: Jamie Hedlund <jamie.hedlund at icann.org>
Cc: "whois-iag-volunteers at icann.org" <whois-iag-volunteers at icann.org>
Subject: Re: [IAG-WHOIS conflicts] Discussion paper for 1 April 2015 meeting
Thankyou, Jamie. Please add to the agenda the 'Block Exemption by jurisdiction' option as suggested below.
Many thanks and regards to you all
Christopher
PS: In the Discussion Paper, the Links to Policy, GNSO Policy and Procedure, are not active in the copy received.
Could you please forward the corresponding URLs.
Begin forwarded message:
From: Christopher Wilkinson <cw at christopherwilkinson.eu>
Subject: Re: [IAG-WHOIS conflicts] Agenda and Draft Redline and Notes
Date: 15 Mar 2015 20:58:27 GMT+01:00
To: "whois-iag-volunteers at icann.org" <whois-iag-volunteers at icann.org>
Cc: Stephanie Perrin <stephanie.perrin at mail.utoronto.ca>
Good evening:
Thankyou, Stephanie, for these interesting observations, with which I largely concur. I am also not a lawyer, but as a long-standing participant in ICANN processes, may I observe that these matters have been under discussion for nigh on fifteen years.
1. There is no call for any further public consultation and delay. That has been done. All the relevant information is already available:
either through past consultation and communication, or through a review of applicable laws.
2. The primary objective should be for ICANN to align its privacy policy on global best practice. That is not the case today.
3. Failing which, and meanwhile, ICANN should institute 'block-exemptions' to allow Registries and Registrars to automatically conform a priori - in their accreditation contracts - to the privacy laws of their jurisdiction.
Obviously it is unnecessary and undesirable to attempt to customise case-by-case each accreditation agreement, whereas the generally applicable privacy laws are already known.
The costs of such customisation to ICANN and to the Registries and Registrars concerned are unjustified.
Best regards
CW
On 30 Mar 2015, at 19:26, Jamie Hedlund <jamie.hedlund at icann.org> wrote:
All,
Attached please find a short paper for the upcoming call. It is intended to spur discussion on whether the trigger could be modified so long as adequate verification requirements were in place. The paper follows on from contributions to the discussions to date. This is the only proposed agenda item. Based on how the call goes, we can spend the last 10 minutes or so discussing next steps. If anyone would like to add anything to the agenda please let me know. Thanks.
Best,
Jamie
Jamie Hedlund
VP, Strategic Programs
Global Domains Division
ICANN
+1.202.374.3969 (m)
+1.202.570.7125 (d)
jamie.hedlund at icann.org
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