[IAG-WHOIS conflicts] Dual Trigger Proposal
Michele Neylon - Blacknight
michele at blacknight.com
Wed Jun 10 16:14:40 UTC 2015
Volker
I like that option
If ICANN disagree with the opinion or have issues with it they can challenge it.
They’ve done this to a greater or lesser degree with the data retention waivers. And as Allen Grogan noted on the call a couple of weeks ago, it works pretty well.
It might also be useful to see how much support there are for the two proposals.
Regards
Michele
--
Mr Michele Neylon
Blacknight Solutions
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Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty
Road,Graiguecullen,Carlow,Ireland Company No.: 370845
From: Volker Greimann
Date: Wednesday 10 June 2015 17:11
To: Michele Neylon, Jamie Hedlund, "\"whois-iag-volunteers at icann.org<mailto:whois-iag-volunteers at icann.org>\"@mail-01.key-systems.net"
Subject: Re: [IAG-WHOIS conflicts] Dual Trigger Proposal
Hi Bradley,
to be frank, this is getting ridiculous.
The opinion of the law firm is everything we have at our disposal and as the law is not written to specific cases, there alsways will be room for interpretation, so "may" may be everything we can get. Law is always subject to interpretation and what has been the accepted interpretation of the law may change overnight, for example if there is a ruling by a higher court.
I therefore propose a turn-around:
If a contracted party has provided a legal opinion as required by the agreement and ICANN for whatever reason does not want to recognize the findings of this opinion, ICANN may, at its own cost, try to obtain a different legal opinion that states unequivocally that the implementation of XYZ absolutely and under any circumstance does not violate applicable law, and further may indemnify the contracted party in full for any damages, loss, etc the contracted party may suffer as a result of implementing XYZ when it is found to be in violation of applicable law after all.
I do not think this is unreasonable at all, after all, ICANN should only be trying to enforce contractual obligations that are not in violation of applicable law. If ICANN makes a mistake in its evaluation, it should bear the legal and financial responsibility towards its contracted parties for forcing to do something they told them was a violation of national law.
Steve is entitled to an opinion, but he has no role to play in the contractual relationship between ICANN and its contracted parties. If he believes a legal opinion does not reflect the actual law, he may advise ICANN of this fact and encourage ICANN to obtain its own legal opinion.
So essentially, I am asking ICANN to put its money where its mouth is.
Best,
Volker
From: <whois-iag-volunteers-bounces at icann.org<mailto:whois-iag-volunteers-bounces at icann.org>> on behalf of "Silver, Bradley"
Date: Friday 22 May 2015 17:02
To: James Gannon, "whois-iag-volunteers at icann.org<mailto:whois-iag-volunteers at icann.org>"
Subject: Re: [IAG-WHOIS conflicts] Dual Trigger Proposal
James, all:
Thanks for your edits, and thanks to Steve for the proposal introduced on the last call. My apologies for not being able to join the last discussion, but I have been able to review the transcript, and the various viewpoints expressed about the proposals on the table. I’ve also reviewed James’ draft and had the following comments:
1. My understanding of the “alternative” nature of Steve Metalitz’s proposal was that it would be an alternative to - not a replacement of –the existing proceeding as outlined in 1.1 of the Procedure. I see that Section 1.1. has been deleted in James’ draft. I support the inclusion of the proposal Steve submitted, as a means to provide flexibility to the trigger so that the affected registrar does not need to be in “receipt of notification of an investigation, litigation, regulatory proceeding or other government or civil action.”
2. Leading on from that, I don’t think it is useful to include as an alternative the possibility for an opinion from a law firm, even with the additional layers of consultation, for all the reasons which were expressed on the last call, and in prior discussions. Even the language proposed points to a lack of connection with the underlying policy, which requires a demonstration by the registrar that is actually legally prevented from complying, not that it might be.
3. A point that has been made a number of times in prior discussions is the need for a certain level of certainty and specificity as to the nature of the actual (not probable or theoretical) conflict, as part of the trigger mechanism – in keeping with the underlying policy. An opinion from a law firm does not meet that requirement, nor would an opinion or statement from a data authority without enforcement authority, or indeed any statement that comes from a body that is not specific to the registrar in question, and the specific contractual provisions and terms of service, as analyzed against national law of the relevant country.
I would suggest further discussion about the proposal presented by Steve, and whether there are any ways to address some of the concerns expressed by others within that framework.
Bradley Silver
Chief Intellectual Property Counsel |Time Warner Inc.
1 Time Warner Center | New York, NY 10019-8016
P: 212 484 8869 | F: 212 658 9293
Am 10.06.2015 um 17:14 schrieb Michele Neylon - Blacknight:
I’ve joined Adobe, but can’t even listen (forgot headphones in my room)
Basically I think most of us support the proposal that James G put forward
The IPC people don’t
So why not put it to a vote?
--
Mr Michele Neylon
Blacknight Solutions
Hosting, Colocation & Domains
http://www.blacknight.host/
http://blog.blacknight.com/
http://www.blacknight.press - get our latest news & media coverage
http://www.technology.ie
Intl. +353 (0) 59 9183072
Direct Dial: +353 (0)59 9183090
Social: http://mneylon.social
Random Stuff: http://www.michele.irish
-------------------------------
Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty
Road,Graiguecullen,Carlow,Ireland Company No.: 370845
From: Jamie Hedlund
Date: Wednesday 10 June 2015 16:03
To: Michele Neylon
Subject: Re: [IAG-WHOIS conflicts] Dual Trigger Proposal
Are you able to join call now?
Jamie Hedlund
VP, Strategic Programs
Global Domains Division
ICANN
+1.202.374.3969 (m)
+1.202.570.7125 (d)
jamie.hedlund at icann.org<mailto:jamie.hedlund at icann.org>
From: Michele Neylon - Blacknight <michele at blacknight.com<mailto:michele at blacknight.com>>
Date: Friday, May 22, 2015 at 19:10
To: Bradley Silver <Bradley.Silver at timewarner.com<mailto:Bradley.Silver at timewarner.com>>, James Gannon <james at cyberinvasion.net<mailto:james at cyberinvasion.net>>, "whois-iag-volunteers at icann.org<mailto:whois-iag-volunteers at icann.org>" <whois-iag-volunteers at icann.org<mailto:whois-iag-volunteers at icann.org>>
Subject: Re: [IAG-WHOIS conflicts] Dual Trigger Proposal
Bradley
With all due respect I would have to forcefully disagree with you.
I and others have outlined why we are supportive of the proposal as outlined previously and our position on this isn’t going to change. Discussing it further is futile.
Regards
Michele
--
Mr Michele Neylon
Blacknight Solutions
Hosting, Colocation & Domains
http://www.blacknight.host/
http://blog.blacknight.com/
http://www.blacknight.press - get our latest news & media coverage
http://www.technology.ie
Intl. +353 (0) 59 9183072
Direct Dial: +353 (0)59 9183090
Social: http://mneylon.social
-------------------------------
Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty
Road,Graiguecullen,Carlow,Ireland Company No.: 370845
From: <whois-iag-volunteers-bounces at icann.org<mailto:whois-iag-volunteers-bounces at icann.org>> on behalf of "Silver, Bradley"
Date: Friday 22 May 2015 17:02
To: James Gannon, "whois-iag-volunteers at icann.org<mailto:whois-iag-volunteers at icann.org>"
Subject: Re: [IAG-WHOIS conflicts] Dual Trigger Proposal
James, all:
Thanks for your edits, and thanks to Steve for the proposal introduced on the last call. My apologies for not being able to join the last discussion, but I have been able to review the transcript, and the various viewpoints expressed about the proposals on the table. I’ve also reviewed James’ draft and had the following comments:
1. My understanding of the “alternative” nature of Steve Metalitz’s proposal was that it would be an alternative to - not a replacement of –the existing proceeding as outlined in 1.1 of the Procedure. I see that Section 1.1. has been deleted in James’ draft. I support the inclusion of the proposal Steve submitted, as a means to provide flexibility to the trigger so that the affected registrar does not need to be in “receipt of notification of an investigation, litigation, regulatory proceeding or other government or civil action.”
2. Leading on from that, I don’t think it is useful to include as an alternative the possibility for an opinion from a law firm, even with the additional layers of consultation, for all the reasons which were expressed on the last call, and in prior discussions. Even the language proposed points to a lack of connection with the underlying policy, which requires a demonstration by the registrar that is actually legally prevented from complying, not that it might be.
3. A point that has been made a number of times in prior discussions is the need for a certain level of certainty and specificity as to the nature of the actual (not probable or theoretical) conflict, as part of the trigger mechanism – in keeping with the underlying policy. An opinion from a law firm does not meet that requirement, nor would an opinion or statement from a data authority without enforcement authority, or indeed any statement that comes from a body that is not specific to the registrar in question, and the specific contractual provisions and terms of service, as analyzed against national law of the relevant country.
I would suggest further discussion about the proposal presented by Steve, and whether there are any ways to address some of the concerns expressed by others within that framework.
Bradley Silver
Chief Intellectual Property Counsel |Time Warner Inc.
1 Time Warner Center | New York, NY 10019-8016
P: 212 484 8869 | F: 212 658 9293
From:whois-iag-volunteers-bounces at icann.org<mailto:whois-iag-volunteers-bounces at icann.org> [mailto:whois-iag-volunteers-bounces at icann.org] On Behalf Of James Gannon
Sent: Thursday, May 07, 2015 7:32 AM
To: whois-iag-volunteers at icann.org<mailto:whois-iag-volunteers at icann.org>
Subject: [IAG-WHOIS conflicts] Dual Trigger Proposal
Hi All,
In an effort to try and find a common ground, and after recognizing Steve’s input and comments on the call last night that his proposal needs not be the exclusive trigger I have tried to string together some draft language on what I am calling a Dual Trigger process.
My changes have focused on step one being the trigger step, my changes to the remainder of the process have been minor, a change of ‘shall’ to ‘may’ in Section 2 to reflect the change in substance of the trigger mechanism. And the addition of Steve’s language to the Consultation period for a public comment period.
Steve: I think I have faithfully reproduced your language here please let me know if I changed anything that changes the substance of your proposal.
All: I would appreciate comments or input on the proposal.
Please turn off tracking changes on formatting under the ‘Show Markup’ pane if you get spammed with changes related to formatting. As always my battle with Word and its method of dealing with formatting revisions continues!
Please treat this as a Zero draft for discussion.
James Gannon
Director
Cyber Invasion Ltd
Dun Laoghaire, County Dublin, Ireland
Office: +353 (1)663-8787
Cell: +353 (86)175-3581
Email:james at cyberinvasion.net<mailto:james at cyberinvasion.net?subject=Via:%20Email%20Signature>
GPG: https://keybase.io/jayg
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