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

Tue May 26 15:32:58 UTC 2015

It would actually be quite inappropriate for Staff to do what is being suggested

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From: <whois-iag-volunteers-bounces at icann.org<mailto:whois-iag-volunteers-bounces at icann.org>> on behalf of Jamie Hedlund
Date: Tuesday 26 May 2015 17:31
To: Maria Otanes, "whois-iag-volunteers at icann.org<mailto:whois-iag-volunteers at icann.org>"
Subject: Re: [IAG-WHOIS conflicts] FW: Dual Trigger Proposal Google Doc

Christopher,

It’s not the role of staff to set out “essential and feasible aspects” of the IAG’s recommendations. Staff facilitates the work of the IAG to develop consensus-based recommendations to modify (or not) the procedure. Thanks.

Best,
Jamie

Jamie Hedlund
VP, Strategic Programs
Global Domains Division
ICANN
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From: Maria Otanes <maria.otanes at icann.org<mailto:maria.otanes at icann.org>>
Date: Tuesday, May 26, 2015 at 11:21 AM
To: "whois-iag-volunteers at icann.org<mailto:whois-iag-volunteers at icann.org>" <whois-iag-volunteers at icann.org<mailto:whois-iag-volunteers at icann.org>>
Subject: [IAG-WHOIS conflicts] FW: Dual Trigger Proposal Google Doc

From: Christopher Wilkinson <cw at christopherwilkinson.eu<mailto:cw at christopherwilkinson.eu>>
Date: Tuesday, May 26, 2015 11:05 AM
To: Maria Otanes <maria.otanes at icann.org<mailto:maria.otanes at icann.org>>
Cc: "jeffrey at icann.org<mailto:jeffrey at icann.org>" <jeffrey at icann.org<mailto: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<mailto: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<mailto:whois-iag-volunteers at icann.org>" <whois-iag-volunteers at icann.org<mailto: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 '… 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 26 May 2015, at 16:04, Maria Otanes <maria.otanes at icann.org<mailto: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-n31c/edit?usp=sharing

Kind regards,
Maria Otanes
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