[council] [Ext] Re: WHOIS Conflicts with Local Law - Alternate Triggers

Mon Nov 13 20:21:34 UTC 2017

Thanks, Erika, I did not mean to imply that you had not read it carefully, I just wanted to make sure that everyone is aware that although the focus of the review has been on the trigger, the procedure itself includes a number of additional steps.

Best regards,

Marika

From: Erika Mann <erika at erikamann.com>
Date: Monday, November 13, 2017 at 07:27
To: Marika Konings <marika.konings at icann.org>
Cc: Heather Forrest <haforrestesq at gmail.com>, "council at gnso.icann.org" <council at gnso.icann.org>
Subject: [Ext] Re: [council] WHOIS Conflicts with Local Law - Alternate Triggers

Thank you Marika -

I read the text behind the link pretty careful but will read it again.

My previous comment relates in particular to point:

"1.3 Depending on the specific circumstances of the WHOIS Proceeding, the registrar/registry may request that ICANN keep all correspondence between the parties confidential pending the outcome of the WHOIS Proceeding. ICANN will ordinarily respond favorably to such requests to the extent that they can be accommodated with other legal responsibilities and basic principles of transparency applicable to ICANN operations."

  *   My point is that 'correspondence' shall be kept confidential but the outcome, including the reference to the national law requirement and the agreement of the waiver or the special bilateral clauses, shall be published
Will review the complete text again and will make additional comments, if needed.

Thank you again!
Erika

On Mon, Nov 13, 2017 at 2:17 PM, Marika Konings <marika.konings at icann.org<mailto:marika.konings at icann.org>> wrote:
Erika, all,

As a reminder, the trigger is only the first step of the procedure (notification), there are five subsequent steps which need to be taken following notification, namely:

  *   Consultation
  *   General Counsel Analysis and Recommendation
  *   Resolution
  *   Public Notice
  *   Ongoing Review

For further details on each of these steps, please see https://www.icann.org/resources/pages/whois-privacy-conflicts-procedure-2008-01-17-en[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_whois-2Dprivacy-2Dconflicts-2Dprocedure-2D2008-2D01-2D17-2Den&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=2qa6_Sn-WLvrXFzUPs4I4lkxJQriVLPwC5AodTsc7Z0&s=QhYuNtVg0Q1OGs0Twvjcev8PDIFgV351u0QY87v-L_I&e=>.

Best regards,

Marika

From: council <council-bounces at gnso.icann.org<mailto:council-bounces at gnso.icann.org>> on behalf of Erika Mann <erika at erikamann.com<mailto:erika at erikamann.com>>
Date: Monday, November 13, 2017 at 04:37
To: Heather Forrest <haforrestesq at gmail.com<mailto:haforrestesq at gmail.com>>
Cc: "council at gnso.icann.org<mailto:council at gnso.icann.org>" <council at gnso.icann.org<mailto:council at gnso.icann.org>>
Subject: Re: [council] WHOIS Conflicts with Local Law - Alternate Triggers

Heather, Keith -

how about mentioning that all these waivers and derogations based on national laws/requested by opinions from law firms, shall continue to be made public.

Kind regards,
Erika

On Mon, Nov 13, 2017 at 7:11 AM, Heather Forrest <haforrestesq at gmail.com<mailto:haforrestesq at gmail.com>> wrote:
Dear Keith,

Thank you very much indeed for taking the lead on this initiative.

Paul and I appreciate the alternatives you have set out and are taking input from our IPC colleagues. We're aiming to offer a substantive reply no later than this Friday to ensure this gets across the line by the 20th document deadline.

Best wishes,

Heather

On Sat, Nov 11, 2017 at 4:53 AM, Drazek, Keith via council <council at gnso.icann.org<mailto:council at gnso.icann.org>> wrote:

Hello fellow Councilors,

As discussed in Abu Dhabi, I’m re-surfacing the previously drafted motion (thanks Marika) and some proposed language for consideration at our November Council meeting.

We need to respond to Akram’s letter on this topic. It could either be via a motion or in a letter response.

Substantively, here are two options:

Alternate Trigger #1: Written Legal Opinion

In the absence of a Whois Proceeding, a registry or registrar may present to ICANN a written legal opinion from a nationally recognized law firm or attorney in good standing that identifies any portion of the collection, retention, display or dissemination of any data element specified by the ICANN contract in question violates or is likely to violate applicable law, statute or regulation.  Such written opinion shall identify the provision(s) of the ICANN contract in question that are identified to be in conflict and the manner in which the registry or registrar, by fulfilling the terms of the contract, is likely to violate applicable law, statute or regulation.

Alternate Trigger #2: Previously granted waiver

If (i) it was previously determined that a provision in the RA, RAA or other contractual obligation conflicted with applicable law, statute, or regulation such that ICANN granted an exception under the terms of this Procedure and (ii) the registry or registrar is subject to the same applicable law, statute, or regulation, then the registry or registrar may request the same exception. Such request shall be granted by ICANN unless ICANN provides reasonable justification for not granting the request, in which case the registry or registrar may utilize another trigger.

Thanks and regards,
Keith

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