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

Wed Apr 27 14:21:56 UTC 2016

I too want to support the positions of Stephanie and Klaus with respect 
to the role of legal advice here, but from a slightly different 
perspective. It is always the case, though frequently ignored, that 
expertise only has relevance in context. In medicine that is "Scope of 
Practice" and venturing outside one's scope of practice can result in 
serious repercussions. In the case of legal advice the risk is 
different. It is not that lawyers venture outside their scope of 
practice. (/No IP lawyers involved in ICANN would consider representing 
me in a divorce case /:-) .) The risk of bringing in legal advice in too 
early is that the legal advice is used to shape the context of the 
issue. While influencing context in advance is common strategy in 
partisan politics, it is a bad practice in setting good public interest 
policy.

We hammer out desirable solutions and legal advice helps to nail down 
their legal dimensions. If legal advice says something won't fly, we 
argue that and then maybe go back to the drawing board for more work. 
That may be a bit slower but it is better than handing the drawing board 
and the paint brush to lawyers who also represent clients with private 
interests (Stephanie's "privacy goalies"). We won't like the picture 
they paint.

Sam L. (NPOC)

/On 4/27/2016 8:28 AM, Klaus Stoll wrote://
/
> // /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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>>> gnso-rds-pdp-wg at icann.org
>>> https://mm.icann.org/mailman/listinfo/gnso-rds-pdp-wg
>>
>>
>>
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>
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