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

Wed Apr 27 20:10:30 UTC 2016

+1 about the "precocity" intervention issue rose up in your message....I've
Worked in a telecommunication regulatory authority for about seven years,
and after many years of discussions, lawyers finally agree  upon the fact
that technical guys need first to work and give the shape of the solution,
refine it the most possible before the lawyers can check its conformity
with law, even though the initial problem is about a legal issue : *legal
issue in a technical field should be approached differently than legal
issues in legal/social world.*

Le mer. 27 avr. 2016 à 16:33, Sam Lanfranco <sam at lanfranco.net> a écrit :

> 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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> --
> ------------------------------------------------
> "It is a disgrace to be rich and honoured
> in an unjust state" -Confucius
>  邦有道，贫且贱焉，耻也。邦无道，富且贵焉，耻也
> ------------------------------------------------
> Dr Sam Lanfranco (Prof Emeritus & Senior Scholar)
> Econ, York U., Toronto, Ontario, CANADA - M3J 1P3
> email: Lanfran at Yorku.ca   Skype: slanfranco
> blog:  http://samlanfranco.blogspot.com
> Phone: +1 613-476-0429 cell: +1 416-816-2852
>
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-- 
Best regards,

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