[IAG-WHOIS conflicts] Dual Trigger Proposal

Thu May 7 21:25:19 UTC 2015

Dear Michele, Christopher, and Colleagues:
1.  I do understand Michele's frustration with this implementation 
issue, and the reality that registrars are at risk.  However, since this 
is really the first "kick at the can" to go over this procedure, I would 
beg for patience. Some of us are new to this forum, and you seasoned 
experts are supposed to be welcoming us newcomers and helping us figure 
out the arcane jumble of consensus policy that is ICANN. (ahem).
2.  As indicated in conversations previously, I agree with Christopher 
and will be happy to draft that dissent, should he care to join me in 
mine.  Some of us have a fundamental problem in implementing a procedure 
that we perceive to be violating national law.  Not, of course, that 
someone my age can claim to be astonished, but it is my considered view 
that it would not be ethical to sign on to a procedure that papers over 
a fundamentally flawed policy.  That is of course my personal view.  I 
understand that other stakeholders are extremely happy with this policy 
and have no desire to revisit it.
3.  For those interested in other national law than the well-discussed 
European legislation that meets the standard of the Directive 95/46, I 
have just received my copy (hot off the presses, a phrase which has now 
become meaningless thanks to just in time printing, but never mind) of 
Graham Greenleaf's excellent volume on Asian Data Privacy Laws (Oxford U 
Press, 2014).  I will be happy to bore you to death with my findings 
once I have dug through the 579 pages (I do realize this gives Michele 
and others a further incentive to rush our little working group along).  
Professor Greenleaf (now Emeritus of UNSW in Sydney, Australia) has 
taught information and privacy law in law schools throughout the region, 
and discusses each law exhaustively in its own regional context, which 
is extremely important.  To my knowledge, the first and most 
comprehensive and authoritative such volume in English.

I will forward my markup of James' constructive contribution shortly.
Kind regards,
Stephanie Perrin
On 2015-05-07 15:49, Christopher Wilkinson wrote:
> Dear Michele, Dear Colleagues:
>
> I shall consider Michele's friendly advice between now and the next 
> conference call.
> However, there is a limit to how much time and personal effort one can 
> spend on this and other ICANN dossiers.
> I have reservations about spending more time than necessary if there 
> is not to be an useful outcome, soon.
> My advice to ICANN on this matter is the classic: "if you are in a 
> hole, stop digging."
>
> Regarding operational implementations, I recommend not more than one 
> A4 page. Period.
> Remember that this will have to be translated and implemented in 
> multiple jurisdictions, if atall.
>
> I do not exclude a minority report, but let it be clear, that would 
> go//quite widely.
>
> Best regards
>
> CW
>
> PS: Not for the first time, I find that the 'scope' of ICANN WGs 
> (determined by Who?) is altogether counter intuitive …
>
>
> On 07 May 2015, at 20:31, Michele Neylon - Blacknight 
> <michele at blacknight.com <mailto:michele at blacknight.com>> wrote:
>
>> Christopher
>>
>> This group needs to move forward on something that is within its scope.
>>
>> The ICANN policy may be flawed, but we cannot change it and I 
>> sincerely doubt that this group will reach consensus on recommending 
>> that the policy be changed.
>>
>> If, hypothetically, this group were to recommend that the policy be 
>> changed (which as I said, I cannot see happening) then that would 
>> lead to yet another PDP, which would take another 18 – 24 months and 
>> we would have no way of knowing what the outcome of that would be.
>>
>> So I would, therefore, urge you and others to focus on improving the 
>> operational implementation of the policy, which is what we are meant 
>> to be doing.
>>
>> An alternative, of course, would be for you to submit a minority 
>> statement outlining your views on the policy.
>>
>> Regards
>>
>> Michele
>>
>> --
>> Mr Michele Neylon
>> Blacknight Solutions
>> Hosting, Colocation & Domains
>> http://www.blacknight.host/
>> http://blog.blacknight.com/
>> http://www.blacknight.press - get our latest news & media coverage
>> http://www.technology.ie
>> Intl. +353 (0) 59  9183072
>> Direct Dial: +353 (0)59 9183090
>> Social: http://mneylon.social
>> -------------------------------
>> Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business 
>> Park,Sleaty
>> Road,Graiguecullen,Carlow,Ireland  Company No.: 370845
>>
>> From: Christopher Wilkinson
>> Date: Thursday 7 May 2015 19:19
>> To: "whois-iag-volunteers at icann.org 
>> <mailto:whois-iag-volunteers at icann.org>"
>> Subject: Re: [IAG-WHOIS conflicts] Dual Trigger Proposal
>>
>> Good evening:
>>
>> I have reviewed the 'Dual Trigger' procedure as proposed by James 
>> Gannon, for which many thanks.
>>
>> However as I have explained to the recent conference calls, I see no 
>> merit in spending time on tweaking the procedure for handling 
>> eventual WHOIS conflicts with privacy and data protection laws when 
>> the underlying ICANN policy is fundamentally flawed.
>>
>> I have proposed to greatly simplify and expedite the matter either by 
>> ICANN adapting WHOIS to international best practice whereby all 
>> Registries and Registrars would implement a high level of personal 
>> data protection and privacy, world wide. Or alternatively, to Reverse 
>> the Burden of Proof, whereby Registries and Registrars would, as 
>> their primary default, implement applicable privacy and data 
>> protection laws in their respective jurisdictions. It would then be 
>> up to ICANN to initiate a procedure to examine whether, in any 
>> particular case, there was a threat to the stability and security of 
>> the Internet.
>>
>> The present draft document of some six detailed pages is really not 
>> workable and contains some serious misconceptions.
>>
>> -How many Registries and Registrars, world-wide, would be potentially 
>> affected by this procedure? What would be the consequences in cost 
>> and staff time for ICANN should they all actually apply for exemption?
>> (Into how many languages would the procedure have to be translated 
>> before it could be realistically implemented by all present and 
>> future affected Registries and Registrars?)
>>
>> -ICANN's 'contractual WHOIS obligations' (Section 2.1) are not 
>> sacrosanct, particularly when they are inconsistent with applicable law.
>>
>> -the reference to '… anticipated impact on the operational stability 
>> …' (Section 4.1) is rather tendentious. I am aware of no reason to 
>> anticipate that privacy and data protection law would have any such 
>> impact. On the contrary, there are a large number of Registries 
>> (principally ccTLDs) which do respect applicable law. Did ICANN ever 
>> question whether they had any negative impact on stability, security 
>> or interoperability etc. of the Internet?
>>
>> -The reference in Section 5.2 to "ICANN's forbearance from 
>> enforcement of full compliance … " is likely to be perceived as 
>> rather offensive. ICANN is not in a position to force Registrars or 
>> Registries to choose between ICANN's contractual conditions and 
>> applicable law. On the contrary, ICANN's Articles of Incorporation 
>> were drafted to ensure that the opposite would be the case.
>>
>> More generally, there is an underlying issue of fair competition 
>> between accredited Registrars in the ICANN gTLD system. Should one 
>> accept the procedure as proposed, one would be effectively placing 
>> certain Registrars at a competitive disadvantage (a) to undertake an 
>> exorbitant procedure to obtain a waiver or exemption from ICANN's 
>> contractual conditions and/or (b) to risk infringement of applicable 
>> law vis-à-vis their Registrants and public authorities.
>>
>> Again, such outcome is contrary to the underlying objectives of ICANN 
>> which was created in the first place to ensure conditions of fair 
>> competition among Registrars, world-wide.
>>
>> In the light of the above, I would recommend that the working group 
>> proceed no further with the so called 'trigger mechanisms' and start 
>> again from a more realistic and legally compliant position.
>>
>> With best regards to you all
>>
>> Christopher Wilkinson
>>
>> On 07 May 2015, at 13:31, James Gannon <james at cyberinvasion.net 
>> <mailto:james at cyberinvasion.net>> wrote:
>>
>>> Hi All,
>>> In an effort to try and find a common ground, and after recognizing 
>>> Steve?s input and comments on the call last night that his proposal 
>>> needs not be the exclusive trigger I have tried to string together 
>>> some draft language on what I am calling a Dual Trigger process.
>>> My changes have focused on step one being the trigger step, my 
>>> changes to the remainder of the process have been minor, a change of 
>>> ?shall? to ?may? in Section 2 to reflect the change in substance of 
>>> the trigger mechanism. And the addition of Steve?s language to the 
>>> Consultation period for a public comment period.
>>>
>>> Steve: I think I have faithfully reproduced your language here 
>>> please let me know if I changed anything that changes the substance 
>>> of your proposal.
>>> All: I would appreciate comments or input on the proposal.
>>>
>>> Please turn off tracking changes on formatting under the ?Show 
>>> Markup? pane if you get spammed with changes related to formatting. 
>>> As always my battle with Word and its method of dealing with 
>>> formatting revisions continues!
>>>
>>> Please treat this as a Zero draft for discussion.
>>>
>>> *James Gannon*
>>> *Director*
>>> *Cyber Invasion Ltd*
>>> *Dun Laoghaire, County Dublin, Ireland*
>>> *Office: +353 (1)663-8787*
>>> *Cell: +353 (86)175-3581*
>>> *Email:james at cyberinvasion.net 
>>> <mailto:james at cyberinvasion.net?subject=Via:%20Email%20Signature>*
>>> *GPG: https://keybase.io/jayg*
>>>
>>> <IAGWHOIS_Procedure_DualTrigger_Draft0.docx>_______________________________________________
>>> Whois-iag-volunteers mailing list
>>> Whois-iag-volunteers at icann.org <mailto:Whois-iag-volunteers at icann.org>
>>> https://mm.icann.org/mailman/listinfo/whois-iag-volunteers
>>
>
>
>
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