[IAG-WHOIS conflicts] Follow up from IAG call

Mon May 4 16:49:38 UTC 2015

Good evening:

Since I am deeply involved in the CWG and CCWG debate, I shall not be able to review in detail the markups and the wiki before the next conference call.
(Staff know that I have technical difficulty in conceiving how to do a markup in any case; could staff please re-post all my previous e-mails as relevant mark-ups. Thankyou.)

Regarding the Agenda for Wednesday's meeting, I propose to discuss the following:

-	"Reversing the burden of proof. The primary default shall be that the Registrar shall respect, in its contract with ICANN, the applicable data protection and privacy laws in the jurisdiction of the Registrar.
	Should ICANN consider that in a particular case, this would give rise to any breach of the stability or security of the Internet, ICANN shall initiate a procedure to investigate any perceived problems, 
 	and report to all the stakeholders concerned."

Best regards to you all

CW

On 04 May 2015, at 17:44, Jamie Hedlund <jamie.hedlund at icann.org> wrote:

> 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. Finally, we might also discuss the timing of the IAG’s output. As noted noted on the wiki, 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 group”
>  
> “20050818-05
>> 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
>> the WDPRS report released on March 31st 2004,
>> the WDRP report released on November 20th 2004, and
>> the impact of ICANN's compliance plan.
>> The working group will be chaired by Niklas Lagergren.”
> 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
> Sent: Saturday, May 02, 2015 11:28 PM
> To: Mary Wong ; 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 (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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