[council] WHOIS Conflicts with Local Law - Alternate Triggers

Tue Nov 28 13:32:08 UTC 2017

Hi Heather, all,

Thanks for your feedback on this issue and apologies for my delay responding. I’ve been out of the office and am just now digging out.

Here’s my initial reaction to the proposed amendments. I will also raise this with the RySG during our bi-weekly call tomorrow (Wednesday), so I may receive further guidance.

1.      While I was not a member of the IAG, my understanding is that consensus was not reached -- in either direction -- on the implementation of a Legal Opinion Trigger. The group was divided and the public comments on the issue were similarly divided. If the IPC believes adding a Legal Opinion Trigger now runs counter to the prior work of the IAG, then it’s probably time to convene another IAG to review the issue. The current implementation is simply not working or workable. Further, the comment period back in May was a reasonable first step towards forming another IAG:  https://www.icann.org/news/announcement-2017-05-03-en and the GNSO council resolution on 16 Feb 2017 approving the previous IAG’s work called for a new review to be commenced no later than 1 Oct 2017:  https://gnso.icann.org/en/council/resolutions In light of all the recent developments around GDPR and experience with current implementation, this really needs to be reviewed and revisited ASAP.

2.      Relying only on Alternate Trigger #2 assumes that there is another workable trigger setting the precedent, which is not the case, so I don’t see a stand-alone #2 as effective or sufficient.

3.      Initiating a formal public comment period on what is essentially a contractual compliance issue is likely a non-starter for contracted parties.

4.      It's worth noting that ICANN’s statement on GDPR “noncompliance” from Abu Dhabi is very similar to the legal opinion trigger we’re now discussing. ICANN will defer compliance action, but to be eligible a registry or registrar must first submit to ICANN what you are going to do, including an analysis explaining how the proposal reconciles contractual obligations with GDPR.  ICANN will then submit that to Hamilton for legal analysis.

So, to summarize, I unfortunately can’t accept the proposed amendments from the IPC as friendly. That said, I also don’t want to force a vote without the opportunity for the Council to discuss further. Does it make sense to have this as a discussion item but not tabled for a vote this week?

I’ll let you know tomorrow if I receive any additional input from the RySG.

Thanks and regards,

Keith

From: Heather Forrest [mailto:haforrestesq at gmail.com]
Sent: Tuesday, November 21, 2017 12:20 AM
To: Drazek, Keith <kdrazek at verisign.com>
Cc: council at gnso.icann.org; gnso-secs at icann.org
Subject: [EXTERNAL] Re: [council] WHOIS Conflicts with Local Law - Alternate Triggers

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<mailto: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<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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