[IAG-WHOIS conflicts] Today's call

[Carlton Samuels]

Um, this proposal looks at first glance like a real effort to make a change
and is noted as movement in the right direction. But this confection stems
from what I consider a wrongheaded view of the problem.

This is antithetical of the 'one swallow doth not a summer make' judgment.
Forget the number of registrars and registrants that know ICANN is forcing
them to become scofflaws. For you will always have stragglers of one or
other kind. In my view it is not the registrant or - even the registrars -
that should be the starting point. Rather, it is the law.

When ICANN knowingly suborn an illegal act under colour of contract, it is
wrong. There should be no threshold for how many - whether they are
registrants or registrars - who know that they are suborned before ICANN
acts. It rather should be whether ICANN is aware that it is compelling an
illegal act, and on becoming aware, what is done about it.

One can accept that ICANN - the corporation - may not know it is aiding and
abetting a scofflaw. But the minute it knows - the trigger! - and from
whatever source and by virtue of its role as well as its pretensions in the
global space, ICANN has a duty of care to act.  It should not wait for any
party to seek injunctive relief to do that.

-Carlton


==============================
Carlton A Samuels
Mobile: 876-818-1799
*Strategy, Planning, Governance, Assessment & Turnaround*
=============================

On Mon, Jul 13, 2015 at 9:56 AM, Jamie Hedlund <jamie.hedlund at icann.org>
wrote:

>   All,
>
>  Today’s call is scheduled for 18:00 UTC. For the agenda, staff proposes
> a discussion of the draft report. In addition, we’d like to propose an
> additional alternate trigger for discussion:
>
>  If contracted parties representing at least 50% of registrants in a
> jurisdiction petition for relief of a WHOIS obligation based on a perceived
> conflict with a national law, ICANN would investigate whether in fact the
> WHOIS obligation(s) conflict with national law. ICANN would put out for
> comment the result of its investigation (which may include outside counsel
> advice) and consult with the relevant GAC representative (if any).
> Depending on the outcome of the public comment process, ICANN would grant
> an exemption from the particular WHOIS obligation to all contracted parties
> operating in that jurisdiction.
>
>
>  This proposal is a hybrid of sorts, allowing for exemptions based on a
> legal review but having ICANN, a neutral party, responsible for the
> investigation and legal review. The relatively high threshold for the
> review (contracted parties representing >50% of the registrants in the
> jurisdiction) should help prevent frivolous petitions and allow for a
> manageable work flow.
>
>  We look forward to discussing the draft report and the proposed
> alternate trigger later today. Please let us know if you have any
> questions. Thank you.
>
>  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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>
>
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