[IAG-WHOIS conflicts] FW: Dual Trigger Proposal Google Doc

Tue May 26 15:21:12 UTC 2015

From:  Christopher Wilkinson <cw at christopherwilkinson.eu>
Date:  Tuesday, May 26, 2015 11:05 AM
To:  Maria Otanes <maria.otanes at icann.org>
Cc:  "jeffrey at icann.org" <jeffrey at icann.org>
Subject:  Re: [IAG-WHOIS conflicts] Dual Trigger Proposal Google Doc

Dear Maria: 

Thankyou, but I regret that I do not understand this approach.

I have explained in some detail why I cannot in any way endorse - even
tacitly - this document, as is, or as amended.
May I suggest that ICANN staff present a one page summary of the absolutely
essential and feasible aspects that you would wish to see recommended by the
IAG-WHOIS.

Best regards 

Christopher

> 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>
>> 
>> 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 'Š anticipated impact on the operational stability Š'
>> (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 Š " 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 26 May 2015, at 16:04, Maria Otanes <maria.otanes at icann.org> wrote:

> Hello all,
> 
> We have created a Google docs workspace for the Dual Trigger WHOIS proceeding
> proposal. Everyone on this email distribution has access to the document and
> has the ability to suggest edits or provide comments. If you have any
> questions or run into any problems with the Google doc, please let us know.
> Thanks.
> 
> https://docs.google.com/document/d/1iNKGTue_yt93gWzRdg7WkGNjIADZzzCveudYMT-n31
> c/edit?usp=sharing
> 
> Kind regards,
> Maria Otanes
> _______________________________________________
> Whois-iag-volunteers mailing list
> Whois-iag-volunteers at icann.org
> https://mm.icann.org/mailman/listinfo/whois-iag-volunteers

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