[council] WHOIS Conflicts with Local Law - Alternate Triggers

Wed Nov 29 05:25:20 UTC 2017

Hi Keith,
Thanks very much for your thoughtful comments. I wasn't on the IAG myself
so don't have all of the answers on that, but I take to heart your
willingness to get this to an agreeable position before voting. If you're
willing, I think it would be excellent to make this a discussion item, with
a view to achieving an outcome that we can vote on in December - if you and
others are willing.

Best wishes,

Heather

On Wed, Nov 29, 2017 at 12:32 AM, Drazek, Keith <kdrazek at verisign.com>
wrote:

> 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
>    <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.
>
>
>
>    1. 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.
>
>
>
>    1. Initiating a formal public comment period on what is essentially a
>    contractual compliance issue is likely a non-starter for contracted parties.
>
>
>
>    1. 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>
> 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
>
>
>
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