[IAG-WHOIS conflicts] Follow up from IAG call

Sat May 2 15:28:41 UTC 2015

Thanks, Mary.

May I refer to resolutions#200511 in respect of the policy that you mentioned in your email below.  My reading of the link http://gnso.icann.org/en/council/resolutions#200511 (that you provide) suggests that it should be resolution#20051128-05 reproduced below:

“20051128-05

  The GNSO votes in favour of the following consensus policy recommendation from the WHOIS task force CONSENSUS POLICY RECOMMENDATION

  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.”

In addition, I think resolution#20050602-02 http://gnso.icann.org/en/policies/terms-of-reference.html (made by GNSO prior to  resolution#20051128-05) on the Terms of Reference for the combined WHOIS Task Force might assist us to understand the rationale behind the policy.

Regards,

Raymond

_________________________________________________

RAYMOND HO FCIArb, LLM(Lond), MSocSc(HK), LLB(Hons)(HK)
Independent Arbitrator
Suite 21, Level 4, 401-3, Cyberport 1, 100 Cyberport Road, Hong Kong.
E: arbitrator at raymondho.com 

From: Mary Wong 
Sent: Thursday, April 02, 2015 8:04 AM
To: whois-iag-volunteers at icann.org 
Subject: [IAG-WHOIS conflicts] Follow up from IAG call

Dear IAG members,

Thank you for a productive meeting earlier today. To follow up, these points that emerged from the discussion may be useful “action items” for the group to consider prior to the next call:

(1) On what would be adequate and practicable to satisfy the policy that a registry or registrar “credibly demonstrate” that it is legally prevented from complying with its contractual obligations regarding its collection, display or distribution of Whois data – in other words, what the appropriate “triggers” for invoking the procedure should be:

The IAG may find the report of public comments received to the proposal to review the procedure, as well as the actual public comments themselves, helpful in continuing its discussions on this issue. These documents can be found on the IAG wiki space as well as here: https://www.icann.org/public-comments/whois-conflicts-procedure-2014-05-22-en. Your further deliberations will be critical to taking forward some of the suggestions outlined in the discussion paper that Jamie had circulated, to ensure that future discussions center on suggestions made by the community (as reflected in the public comments received) and the IAG.

(2) On whether, in addition to the procedure, the underlying policy itself needs to be reviewed (noting that the IAG’s mandate is limited to recommending such a review, if any, to the GNSO, as the IAG is not chartered as a policy making body):

The IAG may find it helpful to list and document those elements and/or steps in the current procedure that need to be changed, and do the same for the underlying policy. This exercise should be of assistance in both framing further discussions of the IAG beyond the triggers and on the various other aspects of the procedure, as well as identifying the specific rationale for, and elements that require reviewing, in the policy, if any. The procedure can be found here: https://www.icann.org/resources/pages/whois-privacy-conflicts-procedure-2008-01-17-en and the policy, as approved by the GNSO Council and subsequently by the ICANN Board, is contained in the GNSO Council’s resolution here: http://gnso.icann.org/en/council/resolutions#200511.

ICANN staff will look into creating a Google Docs workspace, as requested on the call, in the hopes of furthering the IAG’s deliberations on these and the other topics outlined in the mission and scope for the group.

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

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