[IAG-WHOIS conflicts] Dual Trigger Proposal

Fri May 22 18:59:27 UTC 2015

Dear Bradley Silver:

Thankyou for re-circulating your amended draft. However, it would seem that there is still some misunderstanding.
We have explained to the List and in conference calls that that approach does not work.

Best regards

Christopher Wilkinson

Begin forwarded message:

> From: Christopher Wilkinson <cw at christopherwilkinson.eu>
> Subject: Re: [IAG-WHOIS conflicts] Dual Trigger Proposal
> Date: 7 May 2015 20:19:14 GMT+02:00
> To: "whois-iag-volunteers at icann.org" <whois-iag-volunteers at icann.org>
> Bcc: Olivier MJ Crepin-Leblond <ocl at gih.com>, MICHAEL NIEBEL <michael at mniebel.eu>
> 
> 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 22 May 2015, at 18:02, "Silver, Bradley" <Bradley.Silver at timewarner.com> wrote:

> James, all:
>  
> Thanks for your edits, and thanks to Steve for the proposal introduced on the last call.  My apologies for not being able to join the last discussion, but I have been able to review the transcript, and the various viewpoints expressed about the proposals on the table.  I’ve also reviewed James’ draft and had the following comments:
>  
> 1.       My understanding of the “alternative” nature of Steve Metalitz’s proposal was that it would be an alternative to - not a replacement of –the existing proceeding as outlined in 1.1 of the Procedure.  I see that Section 1.1. has been deleted in James’ draft.  I support the inclusion of the proposal Steve submitted, as a means to provide flexibility to the trigger so that the affected registrar does not need to be in “receipt of notification of an investigation, litigation, regulatory proceeding or other government or civil action.”   
> 2.       Leading on from that, I don’t think it is useful to include as an alternative the possibility for an opinion from a law firm, even with the additional layers of consultation, for all the reasons which were expressed on the last call, and in prior discussions.  Even the language proposed points to a lack of connection with the underlying policy, which requires a demonstration by the registrar that is actually legally prevented from complying, not that it might be.  
> 3.       A point that has been made a number of times in prior discussions is the need for a certain level of certainty and specificity as to the nature of the actual (not probable or theoretical) conflict, as part of the trigger mechanism – in keeping with the underlying policy.  An opinion from a law firm does not meet that requirement, nor would an opinion or statement from a data authority without enforcement authority, or indeed any statement that comes from a body that is not specific to the registrar in question, and the specific contractual provisions and terms of service, as analyzed against national law of the relevant country.
>  
> I would suggest further discussion about the proposal presented by Steve, and whether there are any ways to address some of the concerns expressed by others within that framework. 
>  
> Bradley Silver
> Chief Intellectual Property Counsel | Time Warner Inc.
> 1 Time Warner Center | New York, NY 10019-8016
> P: 212 484 8869 | F: 212 658 9293
>  
>  
>  
> From: whois-iag-volunteers-bounces at icann.org [mailto:whois-iag-volunteers-bounces at icann.org] On Behalf Of James Gannon
> Sent: Thursday, May 07, 2015 7:32 AM
> To: whois-iag-volunteers at icann.org
> Subject: [IAG-WHOIS conflicts] Dual Trigger Proposal
>  
> 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
> GPG: https://keybase.io/jayg
>  
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