[IAG-WHOIS conflicts] Dual Trigger Proposal

Sun May 24 17:31:03 UTC 2015

Stephanie:
ICANN does not like to be called a regulator when by every commonsensical
measure it is. So there is in our DNA this propensity to the Orwellian.

I have been wrestling with this for so many years now. It has always
bothered me that neither logic and reason have provided a decent
explanation as to why ICANN would knowingly choose to be a scofflaw and to
aid and abet this [dis]position.  Then consciously build ringamarole
processes to address these maladroit behaviours when the guardians of the
law say 'gotcha'.

It is a mindset we all understand. There seems to be just a tad too little
gumption around to change it.

-Carlton

-Carlton

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

On Sun, May 24, 2015 at 8:45 AM, Stephanie Perrin <
stephanie.perrin at mail.utoronto.ca> wrote:

>  I have put a few comments in the Google doc.  I would like to repeat one
> here:  this is not a two way conversation between ICANN and the registrar.
> It is a three way conversation, with the registrants as the third party.
> Registrars should not be ignoring the rights of registrants for data
> protection under their local laws, until they are apprehended by a data
> commissioner.  I do realize, since I have worked in a DP Office, that this
> is in some jurisdictions the norm, but that does not make it right.  Surely
> compliance with law should be one of ICANN's first acts in respecting their
> PICS, and they should also be cognizant of their duty, as the monopoly
> service provider for Internet domain names (via their responsibility as the
> multi-stakeholder regulator or data controller) to respect the rights of
> registrants.
> Stephanie Perrin
>
> On 15-05-23 9:03 AM, James Gannon wrote:
>
>  Hi Bradley,
>
> Thanks for your feedback, see comments inline.
>
>
>
> *From:* Silver, Bradley [mailto:Bradley.Silver at timewarner.com
> <Bradley.Silver at timewarner.com>]
> *Sent:* Friday, May 22, 2015 5:02 PM
> *To:* James Gannon; whois-iag-volunteers at icann.org
> *Subject:* RE: 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.”
>
>
>
>
>
> JG: As Steve said he did not intend for his alternative to be exclusive in
> nature, I believe that the two triggers I have proposed can co-exist and
> indeed be complimentary to each other.
>
>
>
> 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.
>
>
>
> JG: Again we have had the discussion on the applicability of a national
> law, if a national law is in effect in the jurisdiction of the registrar
> and the registrar has competent legal opinion that the law is applicable to
> their business then we must accept that there is an actual prevention. We
> cannot go down the road of assuming that a registrar will not comply with a
> national law or that a national law will not be enforced.
>
>
>
> 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.
>
>
>
> JG: As per my above comment, we must accept that national laws will be
> enforced in their jurisdiction, if we keep going down this route we are
> doing ourselves a disservice.
>
>
>
> 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
> <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 <%2B353%20%281%29663-8787>*
>
> *Cell: +353 (86)175-3581 <%2B353%20%2886%29175-3581>*
>
> *Email:james at cyberinvasion.net
> <james at cyberinvasion.net?subject=Via:%20Email%20Signature>*
>
> *GPG: https://keybase.io/jayg <https://keybase.io/jayg>*
>
>
>
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