[council] Whois Review Team Final Report

Wed Aug 29 22:02:34 UTC 2012

Brian, Jeff, et. al.,

I must concur with Jeff on this matter.  The BC and other constituencies
have already offered public comment on the work of the RT.  We COULD
negotiate a single letter from the Council, but we would certainly need
more time than we have.  Whether we SHOULD be writing such a letter is
another matter and an issue worth some discussion.

Cheers,

John Berard
Founder
Credible Context
58 West Portal Avenue, #291
San Francisco, CA 94127
m: 415.845.4388

-------- Original Message --------
Subject: RE: [council] Whois Review Team Final Report
From: "Winterfeldt, Brian" <bwinterfeldt at steptoe.com>
Date: Wed, August 29, 2012 10:27 am
To: "council at gnso.icann.org" <council at gnso.icann.org>

Dear Jeff:

One solution may be to deliver a summary letter to the Board by August
31, 2012 briefly explaining that the GNSO Council was unable to reach an
agreement on which recommendations require a Policy Development Process
and that individual comments from each Stakeholder Group and
Constituency have been requested.

Based on the input we have received thus far, some believe that only a
handful of the WHOIS RT recommendations require GNSO policy work, (which
we understood to be the impetus for the decision to parse through
recommendations per the Council’s July 20, 2012 discussion).  However,
others believe that all sixteen recommendations require GNSO policy
work.  That is a fundamental difference, and as Stéphane phrased it, a
“direct contradiction,” which likely vitiates the possibility for
general agreement on the matter.

I am interested in everyone’s thoughts and happy to take a stab at a
first draft of a very short letter to the Board today if we decide to
take this route.

Thank you,

Brian

Brian J. Winterfeldt  
bwinterfeldt at steptoe.com
Steptoe

------------------------------------------- 
From: Neuman, Jeff[SMTP:JEFF.NEUMAN at NEUSTAR.US] 
Sent: Wednesday, August 29, 2012 8:57:50 AM 
To: Mason Cole; Winterfeldt, Brian 
Cc: council at gnso.icann.org 
Subject: RE: [council] Whois Review Team Final Report 
Auto forwarded by a Rule

All,

It seems clear that we either need more time to work on this letter than
August 31st or should just agree to not send a Council letter, but leave
this to the stakeholder groups/constituencies.  If we do decide to do
the letter, we will need a few more weeks at least to approve on the
September 13th call.

Jeffrey J. Neuman 
Neustar, Inc. / Vice President, Business Affairs

From: owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org]
On Behalf Of Mason Cole
Sent: Tuesday, August 28, 2012 2:10 PM
To: Winterfeldt, Brian
Cc: council at gnso.icann.org
Subject: Re: [council] Whois Review Team Final Report 

Brian --

Thank you for your and the RT's continued work on Whois issues.  On
behalf of the RrSG, our feedback is provided below, in line.  I am happy
to assist with drafting from here if I can be of help.

Mason

On Aug 27, 2012, at 8:26 AM, Winterfeldt, Brian wrote:

Dear all:

I hereby forward to the full Council the latest draft letter to the
ICANN Board regarding the WHOIS Review Team Final Report, wherein we
attempt to flag potential ambiguous recommendations and assist the Board
in determining which Review Team recommendations are matters of GNSO
policy development versus which recommendations are matters of staff
implementation or negotiation with contracted parties. 

Achieving full consensus of the Council may prove difficult given the
divergence of viewpoints expressed in our small group, which we hope to
have accurately encapsulated in our draft below.  The proposed text
below was supported by myself and Wolf-Ulrich, and we have also included
comments from Jeff and Wendy in red font within brackets.

I would like to thank Jeff, Wendy, Wolf-Ulrich and Thomas for their
input and assistance in this matter, and I look forward to working with
everyone toward finalizing a letter for submission to the ICANN Board by
the August 31, 2012 deadline.

Thank you,

Brian

Brian J. Winterfeldt  

Partner

bwinterfeldt at steptoe.com
Steptoe

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_________________________________________________________

TO:  ICANN Board

FROM:  Chair of the GNSO Council

VIA:  GNSO Liaison to the ICANN Board

I hereby forward to you the written public input of the GNSO Council on
the WHOIS Review Team Final Report pursuant to your resolution
(2012.06.23.26) from the meeting in Prague, Czech Republic, requesting
that the GNSO provide such input by 31 August 2012.  

As you are aware, the WHOIS Review Team’s scope, guided by the
Affirmation of Commitments, was to review the extent to which ICANN’s
WHOIS policy and its implementation are effective, meet legitimate needs
of law enforcement and promote consumer trust.  To this end, the Final
Report, which issued on 11 May 2012, contained sixteen recommendations.

During its meeting on 20 July 2012, the GNSO Council considered the
substance of the WHOIS Review Team Final Report, as well as how to
respond to the Board’s request.  The GNSO Council recognizes, given
the hard work and public input already incorporated into the Final
Report, that there is a reasonable expectation by the Review Team for
its recommendations be implemented as soon as practicable.[[The NCSG
disagrees.  Please cut this sentence.  The Review Team can make
recommendations but it can’t expect implementation simply by dint of
its hard work.  The NCSG has previously stated that any implementation
requires GNSO policy development. “The NCSG believes all
recommendations require GNSO Policy Development.”]] 

RRSG:  The RrSG agrees.  Our group is very appreciative of the work, but
as has been pointed out before by council members, work output doesn't
necessarily represent the expectation of action.

 However, the GNSO Council also recognizes that a small number of the
Review Team’s recommendations may require future GNSO policy
development.  Accordingly, the written input this letter is intended to
clarify potential ambiguity and assist the Board in determining which
Review Team recommendations are matters of GNSO policy development
versus which recommendations are matters of staff implementation or
negotiation with contracted parties.

Recommendation Two - Single WHOIS Policy.  The Review Team’s second
recommendation calls for the Board to oversee creation of a single WHOIS
policy document, and reference it in agreements with Contracted Parties,
as well as clearly document the current gTLD WHOIS policy as set out in
the gTLD Registry & Registrar contracts & Consensus Policies and
Procedure. 

The GNSO Council notes that this recommendation carefully avoids the
phrase “policy development.”  It asks for documentation of the
existing policy set forth in the contracts and consensus policies.  It
does not ask for the GNSO council to review or develop any policies. 
Accordingly, the GNSO Council believes that this is not a recommendation
for further GNSO policy development.

[[The RySG agrees that if this recommendation means creation of a single
policy document that just summarizes all current relevant WHOIS
policies, then no PDP is required.  However, if this recommendation
requires the creation of a new single policy, then a PDP should be
required.]]

RRSG:  The RrSG agrees with the RySG here.

Recommendation Three - Outreach.  The Review Team’s third
recommendation calls for ICANN to ensure that WHOIS policy issues are
accompanied by cross-community outreach, including outreach to the
communities outside of ICANN with a specific interest in the issues, and
an ongoing program for consumer awareness.

The GNSO Council views this recommendation as a modifier, or supplement,
to a number of other recommendations in the Final Report.  Accordingly,
the GNSO Council believes that this is not a recommendation
necessitating GNSO policy development.

6.     [[Recommendation Six - Data Accuracy.  The sixth recommendation
of the Review Team instructs that ICANN should take appropriate measures
to reduce the number of WHOIS registrations that fall into the accuracy
groups “Substantial Failure” and “Full Failure” (as defined by
the NORC Data Accuracy Study) by 50% within 12 months and 50% again over
the following 12 months.
The RySG believes that the recommendation to undertake “appropriate
measures” to reduce the number of WHOIS registrations that fall into
these accuracy groups may require a PDP depending on what these measures
are.]]

RRSG:  The RrSG agrees again.  Further "all appropriate measures" is
undefined and is unfortunately subject to differing interpretation.  The
RrSG recommends the GNSO Council request that ICANN Compliance outline a
plan to reach these goals, along with their expected timeframe and
metrics.  These should be published before implementation of any new
compliance initiatives meant to address these metrics.

Recommendation Ten - Data Access – Privacy and Proxy Services.  The
Review Team’s tenth recommendation essentially calls for ICANN to
initiate processes to regulate and oversee privacy and proxy service
providers; processes should be developed in consultation with all
interested stakeholders and note relevant GNSO studies; a possible
approach to achieving this would be to establish an accreditation system
for all proxy/privacy service providers, and consider the merits (if
any) of establishing or maintaining a distinction between privacy and
proxy services; goal is to provide clear, consistent and enforceable
requirements for the operation of these services consistent with
national laws, and to strike an appropriate balance between stakeholders
with competing but legitimate interests—including privacy, data
protection, law enforcement, the industry around law enforcement and the
human rights community.

The GNSO Council acknowledges that this recommendation can be read to
describe a GNSO policy development process.  However, in recognition of
the contemporaneous negotiation of the RAA, the GNSO Council recommends
that—notwithstanding any GNSO policy development process on this
recommendation—ICANN retain its authority to unilaterally impose
regulation of privacy and proxy services pursuant to the RAA in the
event that no consensus policy has been reached in a reasonably time
frame, such as twelve months from 31 August 2012.

[[The RySG strongly believes that ICANN can only initiate a process to
regulate and oversee privacy and proxy service providers through a PDP
process.  The RySG believes that the entirety of the Review Team’s
tenth recommendation does in fact require a PDP without any artificial
time constraints imposed.]]

RRSG:  The RrSG agrees again with the RySG.  The Whois RT report plainly
says privacy / proxy accreditation should be developed in consultation
with all interested stakeholders.  While regulation of privacy / proxy
may be a laudable outcome, nowhere does the RAA suggest the ICANN
corporation has the authority to make such an imposition, and it's false
to say it does.  The RrSG has discussed privacy / proxy accreditation
with ICANN staff in the course of RAA negotiations and our experience is
that, unfortunately, like many community desires, it is complex,
involves the interests of multiple stakeholders, and has cost an
resource impacts on ICANN staff and the community.  It is an appropriate
issue for a PDP and not unilateral action.

Recommendation Twelve - Internationalized Domain Names.  The Review
Team’s twelfth recommendation calls for ICANN to task a working group
within six months of publication of their report, to determine
appropriate internationalized domain name registration data requirements
and evaluate available solutions; at a minimum, the data requirements
should apply to all new gTLDs, and the working group should consider
ways to encourage consistency of approach across the gTLD and (on a
voluntary basis) ccTLD space; the working group should report within a
year.

The GNSO Council acknowledges that the work of the Internationalized
Registration Data Working Group “IRD WG” is already underway in
regard to this recommendation.

The GNSO Council welcomes comments from the Board concerning this input.

Stéphane Van Gelder

Chair, GNSO Council