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

[Klaus Stoll]

I want to support strongly the observations made by Stephanie. In our 
case legal advise is not an art form that is based on solid foundations 
but the shifting sands of personal and corporate interests. Legal 
observations should inspire our conversation but not guide us. We should 
in our deliberations not be limited by legal arguments but our solutions 
should be tested by legal standards after we come up with some 
conclusions and recommendations. Yes, lets park some of the questions in 
an legal parking lot and you will also see that some cars parked are 
after some weeks have been deemed obsolete.

Beware of billable hours!

Klaus

On 4/27/2016 4:34 AM, Stephanie Perrin wrote:
>
> 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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>
>
>
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