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

[Metalitz, Steven]

I think Raymond’s point is well taken.  I don‘t understand Carlton’s point that the existence of contractual obligations which have stood unchallenged for nearly 15 years is a gross dereliction of duty by ICANN legal, so perhaps some further explanation would be helpful.

I take it that Carlton’s last comment refers to the data retention waiver process, which of course is completely separate from the Whois conflicts procedure, and which addresses a completely different set of contractual obligations.  But again perhaps I misunderstand his reference.

Steve Metalitz

From: Carlton Samuels [mailto:carlton.samuels at gmail.com]
Sent: Wednesday, May 06, 2015 10:11 AM
To: arbitrator
Cc: Metalitz, Steven; Jamie Hedlund; whois-iag-volunteers at icann.org
Subject: Re: [IAG-WHOIS conflicts] Discussion paper for 1 April 2015 meeting

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<mailto: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<mailto: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<https://protect-us.mimecast.com/r/BQfzzl0lyPw9BKyFl4DyDHEvkzO2Y24OyehClsYTpS0ikt5yrZ3UHI4jjjtlPtU2cQ1SY8B_vPGva9BlXXrnx2eKbC-ZVdn9kCpIduLoY-v6RgRRa3EmothZuRUoDTneG08S2KISm_2YfsNwJWtClVFdTZwhTYy6h1VCSvqY1EmEd4w1IeNsCFPELUeu3JpanY3U98H-pCJ9HOGTDab9HobKjmu2_BKtF5AZs8BLqfJDEvqzEOdJ88QxTqCe7hKC95ikggEF8v05UXJ434WhKA>, 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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