[Accred-Model] WP29 statement on WHOIS

Thu May 3 01:03:26 UTC 2018

Thanks Scott. I certainly believe that the concepts you discuss as to “registered agent” are relevant here.  The DPAs are going to be shocked at the abuse cases if people are unable to reach sellers (and collectors of charitable contributions) who are perpetrating fraud on Internet users.  Having said that, I think it would be good for us to find out if EU countries require the equivalent of a “registered agent” for entities formed in various EU member states.  I personally don’t know much at all about this “registered agent for service of process” issue in the EU.

If a solution is not reached, there are going to be tons of lawsuits, including against ISPs and registrars, as well as an overwhelming inbox at abuse at registrar.com<mailto:abuse at registrar.com>.  Hopefully the registrars are adding personnel to handle these complaints in a reasonably timely manner.
Anne

Anne E. Aikman-Scalese

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From: Scott Austin [mailto:SAustin at vlplawgroup.com]
Sent: Saturday, April 28, 2018 6:43 AM
To: Michael Graham (ELCA); Aikman-Scalese, Anne; 'Michael Palage'; 'Rubens Kuhl'; accred-model at icann.org
Subject: RE: [Accred-Model] WP29 statement on WHOIS
Importance: High

Michael Graham, Mike Palage, Anne:
This discussion opens a door for me to make a suggestion, which I hope someone at ICANN can address. Every State in the U.S. requires an individual who seeks to form an entity to engage in business in exchange for limiting liability, whether a corporation, partnership or LLC must provide a registered agent, upon whom service of process can be made and who provides their own contact information and accepts the appointment. Similarly, the DMCA requires an OSP/ISP to provide a designated agent with the US Copyright office as a point of contact for notice of infringing content takedowns in order to avoid liability under safe harbors under that Act. To traverse this ICANN v GDPR impasse, instead of liability on ICANN or its contracting registrars and registries, put the onus on registrants, that as a condition to an Internet presence to engage in online commerce or communication, registrants (individuals as well as businesses) must provide a verifiable registered agent (registrant agent?) or designated agent similar to state corporate requirements and the DMCA, which would be designated as such in WHOIS or RDAP as one additional link or email address line in the database, but whose full contact information could be accessed in a registry like the one available through the US Copyright Office (and yes Anne, most of the DMCA agents are IP lawyers!). To encourage compliance the provision could also require that the applicable registry/registrar that controls the domain only ensures that the line is not left blank, but is required to register the domain name. The registrant remains responsible for ensuring the registered agent is valid and agrees contractually that to continue to sustain its registration the registered agent designated must be subject to vetting/random inspection or testing to demonstrate that it can reach the registrant. If this registrant based condition has already been used or dismissed, my apologies, as I have been working on several other matters.

Best regards,
Scott

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From: Accred-Model <accred-model-bounces at icann.org<mailto:accred-model-bounces at icann.org>> On Behalf Of Michael Graham (ELCA)
Sent: Friday, April 27, 2018 3:44 PM
To: Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>>; 'Michael Palage' <michael at palage.com<mailto:michael at palage.com>>; 'Rubens Kuhl' <rubensk at nic.br<mailto:rubensk at nic.br>>; accred-model at icann.org<mailto:accred-model at icann.org>
Subject: Re: [Accred-Model] WP29 statement on WHOIS

Agree that this would be a perfect time for an Expedited PDP.

Michael R.

From: Accred-Model [mailto:accred-model-bounces at icann.org] On Behalf Of Aikman-Scalese, Anne
Sent: Friday, April 27, 2018 8:52 AM
To: 'Michael Palage' <michael at palage.com<mailto:michael at palage.com>>; 'Rubens Kuhl' <rubensk at nic.br<mailto:rubensk at nic.br>>; accred-model at icann.org<mailto:accred-model at icann.org>
Subject: Re: [Accred-Model] WP29 statement on WHOIS

What concerns me most here is the apparent failure of the much-lauded Multistakeholder Bottom-up policymaking process.    It is clear that there ARE in fact circumstances where ICANN Board and staff must act in a top-down manner in the Global Public Interest.    WHOIS was removed as a public interest obligation in the IANA transition.  It was said that it would not matter.  Many knew that it would matter – if only because ICANN would have been forced to deal with the conflict between that obligation and the GDPR at a much earlier stage – we would have had an anonymized e-mail address system by now.

The victim is the Global Public Interest.  The root cause is the Bottom-up policymaking process and the desire on the part of some stakeholders to “look the other way” on the issue of proportionality.  Goram is a smart guy. Everyone on the Board is smart.  Everyone on the Board also has a fiduciary duty to avoid risk to the corporation.  I am certain that these individuals were advised that avoiding that risk involved avoiding being classified as a “joint data controller”.  Hence, the delay while the perfect storm was developing between ICANN controlling risk and various stakeholders preferring the present outcome.

It really bugs me when Internet policy just ends up creating more work for IP lawyers. ;-(.

All that said, I do favor the Expedited PDP.  I also favor ICANN enacting an Emergency Policy under Specification 2 of the RA that requires registrants to provide an e-mail that does not contain personal information.   The mailing list vehicle for this could be the same e-mail registrars send out to ask for verification of information.

No one ever said that conditioning services on the provision of an e-mail address that does NOT contain personal information is a GDPR violation.  (Apparently some ccTLDs have been requiring this for quite a while.)
Anne

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office

520.879.4725 fax

AAikman at lrrc.com<mailto:AAikman at lrrc.com>

_____________________________

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Lewis Roca Rothgerber Christie LLP

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From: Accred-Model [mailto:accred-model-bounces at icann.org] On Behalf Of Michael Palage
Sent: Friday, April 27, 2018 8:14 AM
To: 'Rubens Kuhl'; accred-model at icann.org<mailto:accred-model at icann.org>
Subject: Re: [Accred-Model] WP29 statement on WHOIS

Rubin,

I read that article with interest as well.  While there has not been a lot of community consensus surrounding GDPR, hopefully the ICANN community could unite around the question posed in the article, “who” came up with this non-viable solution - was is it ICANN legal or an external law firm?

I think we the community deserve an answer to this fundamental question. Hopefully there is one or more ICANN Board members on this list that could answer this fundamental question.

The next big question, will that person or law firm be held accountable for the “fantasy land” advice  (per the article) that was sold to the community, and wasted the little precious time we had to prepare for the GDPR deadline.  Sadly I do not think Dan Halloran, ICANN’s Chief Data Protection Officer can be held accountable because it appears that John Jeffery has made sure he has had zero visibility in any of the meetings with the Article 29 WP to date.

While I have been known to file my fair share of DIDP requests with ICANN , anyone interested in filing a joint one to get to the bottom of this latest ICANN GDPR debacle please contact me offlist.

Best regards,

Michael

From: Accred-Model <accred-model-bounces at icann.org<mailto:accred-model-bounces at icann.org>> On Behalf Of Rubens Kuhl
Sent: Friday, April 27, 2018 10:45 AM
To: accred-model at icann.org<mailto:accred-model at icann.org>
Subject: [Accred-Model] WP29 statement on WHOIS

WP29 provided a member of the press a statement putting an end to the moratorium idea:
https://www.theregister.co.uk/2018/04/27/europe_icann_whois_gdpr/?page=1

But, it doesn't come with a link to a published statement, so my skepticism prevents me from taking it at face value. But the likelihood of it being true is pretty high.

That said, let's gear up to get a layered lawful model off the ground. The sooner, the better.

Rubens

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