[IAG-WHOIS conflicts] [CCWG-ACCT] ICANN comment re gTLD Directory Services and the ICANN Bylaws

Wed Sep 2 17:11:28 UTC 2015

Good afternoon:

As some of you may have already noticed, the CCWG is also addressing WHOIS policy, as illustrated by the attached exchanges.
These go to further enhance the concerns that I have already expressed about parallel processes within the ICANN environment addressing the same issues, not necessarily consistently.

I am also concerned about the suggestion for yet more 'reviews' of WHOIS policy, which risk exhausting the available time and good will through duplication and repetition.

Regards

CW

On 09/02/2015 02:31 AM, Steve DelBianco wrote:
Thanks, Bruce.  For comparison purposes, I pasted the CCWG’s proposed
language below your text.

From: <accountability-cross-community-bounces at icann.org
<mailto:accountability-cross-community-bounces at icann.org>> on behalf of
Bruce Tonkin
Date: Tuesday, September 1, 2015 at 9:24 PM
To: "accountability-cross-community at icann.org
<mailto:accountability-cross-community at icann.org>"
Subject: [CCWG-ACCT] Proposed WHOIS language

Below is some suggested language regarding WHOIS reviews for
consideration by the CCWG when considering what to incorporate into the
bylaws regarding the AoC reviews.

Note the Board has no plans to cancel the current AoC - so the language
in the AoC -  still stands until the community and NTIA wish to change it.

This language however tries to contemplate an environment where we are
introducing a new gTLD Directory Service as a result of policy
development within  the GNSO, as well as most likely continuing to run
the existing WHOIS service for some time.

Regards,
Bruce Tonkin

ICANN commits to enforcing its policy relating to the current WHOIS and
any future gTLD Directory Service, subject to applicable laws, and
working with the community to explore structural changes to improve
accuracy and access to gTLD registration data, as well as consider
safeguards for protecting data.

This Review includes a commitment that becomes part of ICANN Bylaws,
regarding enforcement of the current WHOIS and any future gTLD Directory
Service policy requirements.

The Board shall cause a periodic Review to assess the extent to which
WHOIS/Directory Services policy is effective and its implementation
meets the legitimate needs of law enforcement, promotes consumer trust,
and safeguards data.

The Review Team shall assess the extent to which prior Review
recommendations have been completed, and the extent to which
implementation has had the intended effect.

This periodic Review shall be convened no less frequently than every
five years, measured from the date the Board took action on previous
review recommendations.
_______________________________________________
  From CCWG 2nd draft proposal, page 81:

ICANN commits to enforcing its existing policy relating to
WHOIS/Directory Services, subject to applicable laws. Such existing
policy requires that ICANN implement measures to maintain timely,
unrestricted and public access to accurate and complete WHOIS
information, including registrant, technical, billing, and
administrative contact information.

The Board shall cause a periodic Review to assess the extent to which
WHOIS/Directory Services policy is effective and its implementation
meets the legitimate needs of law enforcement and promotes consumer trust.

This Review will consider the OECD guidelines regarding privacy, as
defined by the OECD in 1980 and amended in 2013.

The Review Team shall assess the extent to which prior Review
recommendations have been implemented.

This periodic Review shall be convened no less frequently than every
five years, measured from the date the previous Review was convened.

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On 18 Aug 2015, at 22:28, Christopher Wilkinson <cw at christopherwilkinson.eu> wrote:

> Good evening:
> 
> May I suggest that the following information is relevant to the context within which the WHOIS IAG is currently working.
> 
> Regarding the 'Two Pronged approach to WHOIS'  (see below) I have the distinct impression - looking back over the past twelve months - that GNSO and its emanations,, including our IAG,  have unduly privileged 
> (i) the enforcement of existing policy (as you know, I do not recognise that as a 'consensus' policy) on the one hand, at the expense of 
> (ii) progressing with the fundamental reform of gTLD registration data, on the other hand.
> 
> I would also draw attention to the point 9.3.1 to the effect that enforcing existing policy is subject to applicable laws. Which is not presently the case.
> 
> Regards
> 
> CW
> 
> 
> 
> Begin forwarded message:
> 
>> From: Steve Crocker <steve.crocker at icann.org>
>> Subject: [CCWG-ACCT] ICANN comment re gTLD Directory Services and the ICANN Bylaws
>> Date: 18 Aug 2015 04:47:39 GMT+02:00
>> To: Accountability Cross Community <accountability-cross-community at icann.org>
>> Cc: Steve Crocker <steve.crocker at icann.org>
>> 
>> For more than a decade we have been wrestling with how to best reform Whois and specifically how we might best balance the very legitimate, though often conflicting goals of privacy and transparency, of accuracy and cost, and, in the larger sense, how to achieve overall effectiveness while respecting the values of the broad set of users of the Internet
>> 
>> During the CCWG webinar on 4 August 2015[1] I said it would be unacceptable to copy the exact wording of the WHOIS review into ICANN’s Bylaws. This may seem like a very specific detail amidst the myriad of “larger” governance issues included in the CCWG proposal, so some may wonder why this merits attention.  I put “larger” in quotes because to many, governance issues seem of premier importance and everything else is subordinate.  Well, yes, governance issues are commanding enormous attention, but ICANN is first and foremost an organization that has a very specific mission on behalf of the Internet and its users, and that means we have to pay attention to the substance of what we do.
>> 
>> Let me make it clear that we’re committed to improving and strengthening the gTLD registration data system, not weakening it, and I think the language that is currently written into the Whois review could impede long-needed improvements.  See the end of this message for some of the actions ICANN and the IETF have taken over the past few years.  In proposing to move the AoC Review obligations into ICANN’s Bylaws, the language should be consistent with, and supportive of, the advancements we have made and the goals we have set for ourselves.
>> 
>> The AoC[2] language  regarding the Whois reviews that was crafted in 2009 states:
>> 
>>> 9.3.1 ICANN additionally commits to enforcing its existing policy relating to WHOIS, subject to applicable laws. Such existing policy requires that ICANN implement measures to maintain timely, unrestricted and public access to accurate and complete WHOIS information, including registrant, technical, billing, and administrative contact information. 
>> 
>> These words, well intentioned at the time they were written, embody the assumption that the architecture of the existing gTLD directory system that uses the WHOIS protocol is appropriate and that improvement is merely a matter of enforcement.  I do not believe it is that simple, and I do not believe we should be embedding this assumption into ICANN’s Bylaws.
>> 
>> The current wording is tied to the original – may I say “ancient?” – model that is sorely in need of overhaul.  I am of the strong opinion that we must not import into ICANN’s Bylaws, the words drafted six years ago.  I am concerned that a strict interpretation of the existing language is inconsistent with structural changes to the system, and hence it would be a mistake to continue to use that language. 
>> 
>> Rather, I feel this is the time to revise those words to fit both the current WHOIS service and the potential future needs for contact information, and to do so in a way that makes it clear to all parties that improvements and strengthening is the right direction for gTLD directory services to evolve.
>> 
>> We will shortly propose language that is consistent with the intent of the existing language. It will make clear that we continue to be committed to a strong system and it will include the possibility of significant improvements that may require structural changes to the entire system.
>> 
>> Steve Crocker
>> 
>> On behalf of the ICANN Board of Directors
>> 
>> ==========================================================
>> 
>> Selected list of actions, including IETF work on WEIRDS, to strengthen the gTLD Directory Services and to build a path toward possible structural improvements.
>> 
>> •   Board Working Group—Board created a new "Board Working Group on Registration Data Directory Services” to support WHOIS as a strategic priority, oversee implementation/improvement of WHOIS, liaise with GNSO on PDP for next generation registration directory services, and liaise with the next WHOIS Review Team.
>> 
>> •   Board-Initiated Policy Development—Board adopted a “Process Framework” developed to provide guidance for a Board-initiated GNSO PDP to define the purpose of collecting, maintaining and providing access to gTLD registration data, and consider safeguards for protecting data, using the recommendations in the EWG Final Report as input/foundation for new gTLD policy.
>> 
>> •   Next Generation Registration Directory Service—Expert Working Group on gTLD Directory Services (EWG), created under Board direction, issued their report, “A Next-Generation Registration Directory Service (RDS”), after exhaustive research and community consultation, to help redefine the purpose and provision of gTLD registration data, and develop a potential new model to replace today’s WHOIS system.
>> 
>> •   Preliminary Issue Report—To move forward with the PDP on Next-Generation gTLD Registration Directory Services to Replace WHOIS (above) a Preliminary Issue Report was submitted to the GNSO Council and is now open for public comment
>> 
>> •   Two-Pronged Approach to WHOIS—In 2012 the Board adopted a two-pronged approach to address the recommendations of the first WHOIS Review Team, calling for ICANN to (i) continue to fully enforce existing consensus policy and contractual conditions relating to WHOIS (See Action Plan), and (ii) create an expert working group to determine the fundamental purpose and objectives of collecting, maintaining and providing access to gTLD registration data, to serve as a foundation for a Board-initiated GNSO PDP.
>> 
>> •   Strategic Priority—WHOIS is emphasized in ICANN’s Strategic Plan and funded in its Operating Plans and Budgets.
>> 
>> •   RAA— Adoption of a new 2013 Registrar Accreditation Agreement, which includes many Compliance and WHOIS related enhancements, such as stricter validation and verification requirements.
>> 
>> •   Registry Agreements— Adoption of a New gTLD Registry Agreement requiring registrars to use 2013 RAA and incorporate many WHOIS improvements, and transition of 2013 RAA into existing registry agreements.
>> 
>> •   New IETF Protocol—IETF’s WEIRDS finalized the new Registration Data Access Protocol (RDAP) that will replace the (port-43) WHOIS protocol.
>> 
>> •   Privacy & Proxy Services—A public comment period recently closed on the Initial Report of a GNSO Working Group on issues relating to the accreditation of privacy and proxy service providers; ICANN has committed to developing and implementing such a program.
>> 
>> •   Translation/Transliteration of Contact Info—A public comment period recently closed on recommendations from the GNSO’s PDP on Translation and Transliteration of Contact Information regarding gTLD non-ASCII script contact information.
>> 
>> •   WHOIS Accuracy Reporting System—Work is ongoing to develop a WHOIS Accuracy Reporting System (ARS), following-up on the Pilot Study for WHOIS Accuracy Reporting System that was released last year.
>> 
>> [1] See https://community.icann.org/pages/viewpage.action?pageId=54692681
>> 
>> [2] https://www.icann.org/resources/pages/affirmation-of-commitments-2009-09-30-en
>> 
>> 
>> 
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> 

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