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

[Carlton Samuels]

Um, I'm not so sure this assertion is factual.  For your assertion to be
correct, then we would have witnessed a gross dereliction of duty by ICANN
legal....and by extension, the community's policy-making structures.

Someone would need to explain why ICANN is then engaged in so much
spinning-of-wheels in regard to privacy impact waivers for EU-domiciled
registrars.

-Carlton Samuels




==============================
Carlton A Samuels
Mobile: 876-818-1799
*Strategy, Planning, Governance, Assessment & Turnaround*
=============================

On Tue, May 5, 2015 at 10:42 PM, arbitrator <arbitrator at raymondho.com>
wrote:

> When comparing the Icann standard registry agreement with the EU privacy
> data protection regulations, for instance,  it is obvious to me that the
> contractual provisions have no conflict with these regulations. That might
> explain why no one had invoked the procedure in all these years. I invite
> my colleagues to consider the issues in the context of the case before us.
> Sorry for missing the upcoming call.
>
> Best,
> Raymond
>
>
>
>
>
>  Raymond HO <arbitrator at raymondho.com> wrote:
>
> >Thanks, Steven.
> >
> >
> >
> >I respectfully invite you to consider the goals for the procedure as
> highlighted in resolution 20051128-05 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.
> >
> >  As regards the applicable contractual provisions regarding the
> collection, display and distribution of personal data via the gTLD WHOIS
> service, I think it might be helpful to review the standard Registry
> Agreement
> https://www.icann.org/resources/pages/registries/registries-agreements-en,
> in particular, clause 2.18 and Specification 4 reproduced below:
> >
> >
> >
> >  2.18            Personal Data.  Registry Operator shall (i) notify each
> ICANN-accredited registrar that is a party to the
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