[IAG-WHOIS conflicts] Response to final report

[Eng.Allan]

Thank you Holly

On Mon, Nov 23, 2015 at 5:36 AM, Stephanie Perrin <
stephanie.perrin at mail.utoronto.ca> wrote:

> Thanks very much Holly....NCSG was also unfortunately late in its
> comments.  There is too much going on at the moment....
> Stephanie Perrin
>
>
> On 2015-11-22 14:38, Holly Raiche wrote:
>
> The following is an informal statement that represents the view of many of
> the ALAC members.   We simply did not have the bandwidth or time to
> formally approve this statement, so it cannot be considered as a formal
> ALAC response.  That said, this issue has been discussed and does have
> support within ALAC.  Again, my apologies in not managing to have the time
> for this to go through formal ALAC  processes.  I’m happy to take any
> questions on its content.
> Holly
>
> The ALAC has deep concerns with the Implementation Advisory Group’s
> proposed alternative ‘triggers’ and supports the “Minority Views’ of
> Stephanie Perrin and Christopher Wilkinson.
>
> The original goal of this policy (concluded by the GNSO in November 2005)
> was to develop procedures that could reconcile mandatory laws on privacy
> with the requirements on registries and registrars under contract with
> ICANN for the collection, display and distribution of WHOIS personal
> information.
>
> Unfortunately, the Task Force charged with implementing the policy adopted
> a ‘solution’ that is virtually unworkable and has never been used.  Under
> the ‘solution’ the registrar/registry should notify ICANN within 30 days of
> situations (an inquiry, litigation or threat of sanctions) when the
> registry/registrar can demonstrate that it cannot comply with WHOIS
> obligations due to local or national privacy laws.
>
> There are two fundamental reasons why the policy is unworkable. The first
> is the bizarre outcome that registrars and registries must seek ICANN
> permission to comply with their applicable local laws.  The second obvious
> flaw is that it means registrars/registries must wait until there is an
> ‘inquiry or investigation etc of some sort before the process can be
> triggered.
>
> This Implementation Working Group (IWG) was formed to ‘ consider the need
> for changes to how the procedure is invoked and used’.  The difficulty with
> that approach is that it does not address the basic flaws in the processes
> proposed: it still assumes that ICANN has a role in determining
> registry/registrar compliance with applicable local law and it still
> believes that solution lies in legal events that ‘trigger’ a resolution
> process.
>
> The ISG report proposes an “Alternative Trigger’ (Appendix 1) or a Written
> Legal Opinion (Dual Trigger) (Appendix 2).  The Alternative Trigger process
> is far simpler and preferable.  Indeed, the language suggests that the
> process might be used to reconcile ICANN WHOIS requirements with relevant
> privacy law more generally, and not on just on a case by case basis.
>
> There are, however, difficulties with the Alternative Trigger proposal, as
> follows.
>
>    - It relies on advice from law firms (whose advice would not bind the
>    relevant privacy agency), or on agencies themselves (who are most often
>    reluctant to provide such advice)
>    - The onus is on individual registries/registrars to invoke the
>    process.  There are many smaller registries/registrars that would not have
>    the resources to fund such advice, particularly if it is needed on a case
>    by case basis
>    - Because laws/regulations on the handling of personal information
>    vary from area to area (whether national or regional), different
>    registries/registrars will be bound by different sets of requirements – in
>    order to comply with the same contractual terms
>    - It is also not clear why GAC advice is included in both proposed
>    ‘triggers’. The expertise of individual GAC members relates to ICANN’s
>    remit: domain names, IP addresses and protocols.
>
>
> The ALAC supports both of the proposals made by Christopher Wilkinson
> (Appendix 4) which address the issues raised .  The first is – at the least
> – a ‘block exemption’ for all registries/registrars in the relevant
> jurisdiction.  This would eliminate the ‘case by case’ approach to the
> issue and provide certainty for all registries/registrars (whether large or
> small) in that area.
>
> A better approach is his call for a ‘best practice’ policy on the
> collection, retention and revealing of WHOIS information.  This would
> ensure that, regardless of the jurisdiction of the registrar/registries –
> and registrants – all would receive the same privacy protection.
>
> Holly Raiche
> Carlton Samuels
>
>
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-- 
Eng.Allan Ghazi
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