[IAG-WHOIS conflicts] Response to final report

[Seth M Reiss]

Yes, good comments.

 

Seth

 

From: whois-iag-volunteers-bounces at icann.org
[mailto:whois-iag-volunteers-bounces at icann.org] On Behalf Of Stephanie
Perrin
Sent: Sunday, November 22, 2015 5:37 PM
To: whois-iag-volunteers at icann.org
Subject: Re: [IAG-WHOIS conflicts] Response to final report

 

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






_______________________________________________
Whois-iag-volunteers mailing list
Whois-iag-volunteers at icann.org
https://mm.icann.org/mailman/listinfo/whois-iag-volunteers

 

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/whois-iag-volunteers/attachments/20151123/04c56c20/attachment.html>