[council] WHOIS Conflicts with Local Law - Alternate Triggers

[Heather Forrest]

Hi Keith, all,

Just following up to get your thoughts on my proposed amendments below and
to confirm where we are at? Is the motion to be on the agenda as submitted
by Keith originally (If so, Keith, would you consider my proposed
amendments below friendly?), or is the motion to be Keith's text plus my
amendments?

Best wishes to all, and Happy Thanksgiving to those who celebrate it,

Heather

On Fri, Nov 17, 2017 at 2:37 PM, Heather Forrest <haforrestesq at gmail.com>
wrote:

>  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
>>
>> _______________________________________________
>> council mailing list
>> council at gnso.icann.org
>> https://mm.icann.org/mailman/listinfo/council
>>
>>
>
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