[IAG-WHOIS conflicts] Discussion paper for 1 April 2015 meeting

Mary Wong mary.wong at icann.org
Tue Mar 31 22:40:01 UTC 2015 

Hello everyone,

To follow up on Jamie¹s note and as some IAG members may not be familiar
with ICANN¹s policy development processes, I¹d 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 GNSO¹s 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:
* 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.
* 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.
* The GNSO recommends the ICANN staff consider the advice given in the task
force report as to a recommended procedure.²


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 IAG¹s mandate) but a
> change in the policy (beyond the IAG¹s 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 that¹s 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. Š 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 ³Block exemption by
>>>> jurisdiction² 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
>>>>>> <Discussion document.pdf>_______________________________________________
>>>>>> Whois-iag-volunteers mailing list
>>>>>> Whois-iag-volunteers at icann.org
>>>>>> https://mm.icann.org/mailman/listinfo/whois-iag-volunteers
>>>>> 
>>>> 
>>> 
> 


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