[Gnso-epdp-team] ICANN Procedure for Handling WHOIS Conflicts with Privacy Law

Marika Konings marika.konings at icann.org
Tue Aug 21 18:55:10 UTC 2018

Dear All,

Per the action item from today’s meeting, please find attached the staff assessment and next steps report on the Revised ICANN Procedure for Handling WHOIS Conflicts with Privacy Law which was published in May 2017. As there were specific questions in relation to the origin of the procedure, I’ve excerpted the background section from this document below. As noted, the GNSO Council has already agreed to form an Implementation Advisory Group to review the procedure and adopted a charter for this effort in February of this year (see https://gnso.icann.org/en/council/resolutions#201802). However, due to workload issues and the pending EPDP, the Council delayed the call for volunteers and agreed during its most recent meeting to decide when the call for volunteers should be launched following the publication of the Initial Report on the Temporary Specification by the EPDP Team.

Best regards,

Caitlin, Berry and Marika


Background (from https://www.icann.org/en/system/files/files/whois-privacy-conflicts-procedure-03may17-en.pdf).

In November 2005, the GNSO concluded a policy development process<https://gnso.icann.org/en/issues/whois-privacy/council-rpt-18jan06.htm> (PDP) on Whois conflicts with privacy law which recommended that “In order to facilitate reconciliation of any conflicts between local/national mandatory privacy laws or regulations and applicable provisions of the ICANN contract regarding the collection, display and distribution of personal data via the gTLD Whois service, ICANN should:

  1.  Develop and publicly document a Procedure for dealing with the situation in which a registrar or registry can credibly demonstrate that it is legally prevented by local/national privacy laws or regulations from fully complying with applicable provisions of its ICANN contract regarding the collection, display and distribution of personal data via Whois.
  2.  Create goals for the procedure which include:
     *   Ensuring that ICANN staff is informed of a conflict at the earliest appropriate juncture;
     *   Resolving the conflict, if possible, in a manner conducive to ICANN's Mission, applicable Core Values, and the stability and uniformity of the Whois system;
     *   Providing a mechanism for the recognition, if appropriate, in circumstances where the conflict cannot be otherwise resolved, of an exception to contractual obligations to those registries/registrars to which the specific conflict applies with regard to collection, display and distribution of personally identifiable data via Whois; and
     *   Preserving sufficient flexibility for ICANN staff to respond to particular factual situations as they arise”.

The ICANN Board of Directors adopted the recommendations in May 2006 and directed staff to develop such a Procedure. A draft Procedure was posted for public comment, and input was specifically solicited from the Governmental Advisory Committee (GAC). The GAC recommended adding a provision, which was included as section 1.4 in the procedure, urging a registrar or registry to work with relevant national governments to ensure adherence to domestic and international law, as well as applicable international conventions.

If the Whois requirements require changes that ICANN determines prevent compliance with contractual Whois obligations, ICANN may refrain, on a provisional basis, from taking enforcement action for non-compliance, while ICANN prepares a public report and recommendation and submits it to the ICANN Board for a decision. Given that to date no registrar or registry operator has formally invoked the Whois Procedure, and yet numerous concerns have arisen from contracted parties and the wider community, ICANN launched a review in 2014, as provided in the Whois Procedure’s final clause.

Marika Konings
Vice President, Policy Development Support – GNSO, Internet Corporation for Assigned Names and Numbers (ICANN)
Email: marika.konings at icann.org<mailto:marika.konings at icann.org>

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