[IAG-WHOIS conflicts] Follow up from IAG call

Tue May 5 04:05:08 UTC 2015

Not surprisingly, I support this excellent suggestion.
Kind regards,
Stephanie Perrin.

On 2015-05-04 9:49, Christopher Wilkinson wrote:
> 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 
> <mailto: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 
>> <https://docs.google.com/document/d/18WWFEu2ud7Prd4g2LI2UM0a9zT-Q8v9lHtbLJ8rchvU/edit>. Finally, 
>> we might also discuss the timing of the IAG’s 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 <mailto:jamie.hedlund at icann.org>
>>
>> From: Raymond HO <arbitrator at raymondho.com 
>> <mailto:arbitrator at raymondho.com>>
>> Date: Sunday, May 3, 2015 at 10:06 AM
>> To: Mary Wong <mary.wong at icann.org <mailto:mary.wong at icann.org>>, 
>> "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] 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*
>>>
>>>  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.”*
>> *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 <mailto: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 <mailto:mary.wong at icann.org>
>> *Sent:* Thursday, April 02, 2015 8:04 AM
>> *To:* whois-iag-volunteers at icann.org 
>> <mailto: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 <mailto:mary.wong at icann.org>
>>
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