[gnso-rds-pdp-wg] obtaining legal support

[Stephanie Perrin]

I agree whole heartedly, and although I am not at liberty to discuss 
what the EWG did with respect to legal analysis, I believe I may say 
that in my view it was very inadequate.  We need a very balanced legal 
analysis from many perspectives, and in my view until we bring in legal 
experts from places like the Council of Europe and the data protection 
authorities, we will not have done the job.  Outside counsel in the 
privacy field, if I may say, would not be sufficient, as most lawyers 
practicing in this area are what we refer to as privacy goalies, 
defending their clients from possible complaints and attack.  Even 
selecting legal scholars could be fraught with controversy, but we 
certainly need representation from this group as well. Further 
complicating factors are that for the next couple of years, many 
billable hours are to be had as Europe figures out how to implement the 
Data Protection Regulation, and the upcoming electronic communications 
privacy directive...getting volunteers for this committee might be tough 
when there are so many business opportunities for privacy lawyers.:-)  
Perhaps it might be useful if we set up a parking lot for legal 
questions, so that we have a fulsome set of issues to discuss when it 
comes time to create a legal forum.  I have a few already.....

Stephanie
On 2016-04-26 20:59, Greg Aaron wrote:
>
> This note is especially directed to the WG leaders.  I am wondering at 
> what point the Working Group secures legal support.
>
> Our current round of document review reminds me of how complex the 
> legal issues are -- including privacy and data protection law, law 
> enforcement, contracts, and legal jurisdictions.  There is the 
> expectation that our WG will make policies designed to address various 
> legal problems and requirements, and that those policies will be in 
> place for years to come.  So it is imperative that we get things right.
>
> The WG has access to a number of documents, and the WG has some fine 
> legal experts on it, but this may not be enough.  Our legal-eagle 
> members hail from certain jurisdictions, and there may be gaps in 
> their geographic expertise.  They also have day jobs and as volunteers 
> may not be able to do all the lifting and research that may eventually 
> be needed.
>
> I also see gaps in the ICANN processes to date, and therefore in the 
> resulting documents.  In 2012 the WHOIS Policy Review Team laid out 
> some of the legal issues, but it was not for that group to analyze the 
> issues and potential solutions in any depth.  Then the EWG proposed a 
> specific solution, but provided fairly little in the way of legal 
> analysis and justification, and it is unclear what legal advice the 
> EWG  received, beyond a memo prepared by the ICANN legal staff.  For 
> example, the EWG report doesn’t even contain a reference to EU Article 29.
>
> The IANA transition was another complicated issue, and the transition 
> CWG received dedicated assistance in the form of neutral outside legal 
> counsel.
>
> I am curious about whether the RDS WG leadership has given thought to 
> this issue, and how to manage it over time.
>
> With best wishes,
>
> --Greg Aaron
>
> P.S.: Legal support also strikes me as an excellent use of the nTLD 
> application and auction proceeds …although I suppose that’s another 
> matter!
>
>
>
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