[council] WHOIS Conflicts with Local Law - Alternate Triggers

[Darcy Southwell]

I guess I’ m a bit confused because the motion implies that Alternate Trigger #1 comes directly from the IAG.  That’s not the case?

 

Thanks,

Darcy

 

From: council <council-bounces at gnso.icann.org> on behalf of Heather Forrest <haforrestesq at gmail.com>
Date: Thursday, November 16, 2017 at 7:37 PM
To: "Drazek, Keith" <kdrazek at verisign.com>
Cc: "council at gnso.icann.org" <council at gnso.icann.org>
Subject: Re: [council] WHOIS Conflicts with Local Law - Alternate Triggers

 

 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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