[IAG-WHOIS conflicts] Dual Trigger Proposal

Sun May 24 18:09:26 UTC 2015

ICANN was set up to act as the competition regulator for the DNS.
(I was present at the critical meeting between the EU Competition Directorate General and the then President of ICANN)
For several years that worked. Much less so now.

This is why - inter alia - I fundamentally deplore the 'vertical integration' decisions associated with the new gTLDs.

CW

On 24 May 2015, at 19:31, Carlton Samuels <carlton.samuels at gmail.com> wrote:

> 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] 
>> 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] 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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