[council] WHOIS Conflicts with Local Law - Alternate Triggers

[Heather Forrest]

 Hi Keith, colleagues,

Many thanks again to Keith for holding the pen on this one that has been
with us for so long now. I'm hopeful that we can finally get to a motion
text that covers all concerns, rather than duke it out in voting. The issue
is important to a substantial proportion of the GNSO community, so it's
particularly worthwhile trying to get it to a place that is workable from
all perspectives.

I understand that Alternate Trigger #1 was considered and not agreed upon
by the IAG - if that's the case, then in my view it circumvents the IAG to
raise it now. That's a precedent that I am loathe to set, as it could
easily come back to haunt us later.

Alternate Trigger #2 is quite workable. May I suggest a few tweaks for
clarity/specificity's sake, in caps below:

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, AND TO THE SAME CONTRACTUAL
OBLIGATION,  then the registry or registrar may request the same exception.
AFTER A REASONABLE OPPORTUNITY FOR PUBLIC COMMENT ON THE REQUEST,  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.

Hoping this can spur us to reaching a good place in time for submitting the
motion-

Best wishes to all,

Heather

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