[IAG-WHOIS conflicts] Dual Trigger Proposal

Fri May 22 23:10:58 UTC 2015

Bradley

With all due respect I would have to forcefully disagree with you.

I and others have outlined why we are supportive of the proposal as outlined previously and our position on this isn’t going to change. Discussing it further is futile.

Regards

Michele

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Mr Michele Neylon
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From: <whois-iag-volunteers-bounces at icann.org<mailto:whois-iag-volunteers-bounces at icann.org>> on behalf of "Silver, Bradley"
Date: Friday 22 May 2015 17:02
To: James Gannon, "whois-iag-volunteers at icann.org<mailto:whois-iag-volunteers at icann.org>"
Subject: Re: [IAG-WHOIS conflicts] Dual Trigger Proposal

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> [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<mailto: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<mailto:james at cyberinvasion.net?subject=Via:%20Email%20Signature>
GPG: https://keybase.io/jayg

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