[council] WHOIS Conflicts with Local Law - Alternate Triggers

Erika Mann erika at erikamann.com
Wed Nov 29 09:02:59 UTC 2017


Keith -

Agree with your point 3) in particular: "Initiating a formal public comment
period on what is essentially a contractual compliance issue is likely a
non-starter for contracted parties".

Kind regards,
Erika

On Wed, Nov 29, 2017 at 6:25 AM, Heather Forrest <haforrestesq at gmail.com>
wrote:

> 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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>>
>>
>>
>>
>>
>
>
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