[IAG-WHOIS conflicts] Follow up from IAG call

Mon May 4 15:44:29 UTC 2015

Raymond,

Thanks for your inquiry. A GNSO working group is not the same as an
Implementation Advisory Group. With the latter, there is no requirement to
designate a chair but, as explained on the last call, there is nothing
prohibiting the IAG from doing so. ICANN staff would be happy to facilitate
the designation of a chair for this IAG.

For our call on Wednesday, we suggest continuing the discussion regarding
possible modifications to the existing procedure, taking into account IAG
volunteer markups of the google doc
<https://docs.google.com/document/d/18WWFEu2ud7Prd4g2LI2UM0a9zT-Q8v9lHtbLJ8r
chvU/edit> . Finally, we might also discuss the timing of the IAG¹s output.
As noted noted on the wiki
<https://community.icann.org/display/WNLCI/WHOIS+and+national+law+conflicts+
IAG+Home> , the IAG is supposed to post its final report for public comment
in May and submit its final recommendations to the GNSO in June. If anyone
has any additional agenda items to propose, please let us 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

From:  Raymond HO <arbitrator at raymondho.com>
Date:  Sunday, May 3, 2015 at 10:06 AM
To:  Mary Wong <mary.wong at icann.org>, "whois-iag-volunteers at icann.org"
<whois-iag-volunteers at icann.org>
Subject:  Re: [IAG-WHOIS conflicts] Follow up from IAG call

Dear Mary,

If I may add one more observation, when asked at the last conference IAG
call who was the chairman we were told that there was no chairman.
Interestingly, I note from the following resolution that there was chairman
in other working group²

³20050818-05
> The GNSO agrees to create a working group, with a representative group of
> volunteers, Councillors or non councillors, to work with the ICANN staff to
> review the effectiveness and compliance of the current contractual
> requirements with respect to WHOIS accuracy. The group will take as input
> 1. the WDPRS report released on March 31st 2004,
> 2. the WDRP report released on November 20th 2004, and
> 3. the impact of ICANN's compliance plan.
> The working group will be chaired by Niklas Lagergren.²
My question is what is the status of our IAG within the ICANN corporate
structure?

Kind 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: Raymond HO <mailto:arbitrator at raymondho.com>
Sent: Saturday, May 02, 2015 11:28 PM
To: Mary Wong <mailto:mary.wong at icann.org>  ; whois-iag-volunteers at icann.org
Subject: Re: [IAG-WHOIS conflicts] Follow up from IAG call

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
<http://gnso.icann.org/en/council/resolutions#200511>  (that you provide)
suggests that it should be resolution#20051128-05 reproduced below:
³20051128-05
> 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.²
In addition, I think resolution#20050602-02
http://gnso.icann.org/en/policies/terms-of-reference.html
<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 <mailto:mary.wong at icann.org>
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 ³action items² 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 ³credibly demonstrate² 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
³triggers² 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-e
n. 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 IAG¹s 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 Council¹s 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 IAG¹s 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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