[gnso-rds-pdp-wg] a suggestion for "purpose in detail"

Wed Mar 22 23:43:14 UTC 2017

I would hope that all of us can agree on this assuming that we can agree as a WG on the objective: “the essence of navigating the legal landscape is finding a way to accomplish objectives to the greatest possible extent within the bounds of the law”.

I am not opposed to members starting in their respective trenches but we now need to start looking for ways to get out of our trenches.

Chuck

From: gnso-rds-pdp-wg-bounces at icann.org [mailto:gnso-rds-pdp-wg-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Wednesday, March 22, 2017 1:25 PM
To: John Horton <john.horton at legitscript.com>
Cc: RDS PDP WG <gnso-rds-pdp-wg at icann.org>
Subject: [EXTERNAL] Re: [gnso-rds-pdp-wg] a suggestion for "purpose in detail"

I think we all want changes -- at least in modernizing the system and getting the data on a better technical platform.  Unfortunately, that's wrapped up in (or held hostage by) a whole raft of other concerns.

As for fears (aside from clowns):

1.  Losing access.  For purposes of this response, it's not necessary to provide an exhaustive list of uses for Whois/RDS records, but to highlight a few from the point of view of an attorney in private practice: Whois records are a standard and necessary tool in conducting transactional due diligence (both buy-side and sell-side), IP audits and trademark "clearance".  Also, Whois records are a standard and necessary tool in investigating phishers, spearphishers, fraudsters, scammers, infringers, counterfeiters, data thieves, etc., etc.

2.  Not finding solutions in this WG.  As a lawyer, I recognize the necessity of navigating the legal landscape and mitigating legal risk. Those who collect, hold and provide access to Whois/RDS data need to be able to comply with applicable laws and not be made into targets for enforcement of those laws.  But "navigating the legal landscape" can't be the equivalent of staying in bed because it's the best way to avoid car accidents.  Rather, the essence of navigating the legal landscape is finding a way to accomplish objectives to the greatest possible extent within the bounds of the law.  From the IP stakeholder point of view, that means, among other things, maintaining (and potentially improving) access, and improving accuracy and contactability.

My fear is that we will not learn how to do this -- how to accomplish these objectives to the greatest extent within the bounds of the law.  I'm not enough of a worldwide data protection and privacy law savant to know how to do this myself.  I hope that those who do know more will help.  Unfortunately, some (many?) who do know more seem only to be interested in building higher, thicker and more impregnable walls around data, rather than providing solutions to allow access.  Frankly, I found the data protection commissioners at ICANN58 to be in this mold -- more data privacy "guardians" than objective experts.  (I'm waiting for the data access commissioners to show up, to provide some counterpoint.  Since these don't exist, we'll need to get that counterpoint elsewhere.)

As long as we stay dug in to our trenches, we're just squandering the opportunities that this WG offers.  (Rather than "trenches," I prefer the analogy of a high school dance, where everyone is stuck to the wall, and no one is asking anyone to dance. The trench analogy does not end nearly as well.)

Greg Shatan

P.S.  Clowns exist only to make you smile.  Why so scary?

Greg Shatan
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S: gsshatan
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gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>

On Wed, Mar 22, 2017 at 12:33 PM, John Horton <john.horton at legitscript.com<mailto:john.horton at legitscript.com>> wrote:

   Thanks, Nathalie. I'm sure many share your frustration!

   I think that's a constructive question, and I'll jump in. My biggest fear is that in the monitoring that companies like mine do for banks, payment providers, e-commerce companies, etc. that helps determine whether a merchant is who they say they are, and whether they are engaged in other bad activity (i.e., laundering money) will be unable to obtain access to the Whois records we need in order to preserve the integrity of the payments system, protect payment providers from risk, and derivatively protect consumers. In other words, my fear is that we'll lose access to Whois records, which we need for that purpose.

   Actually, to be honest, that's not true -- my biggest fear (to answer your question directly) is of clowns, and every time I travel, I ask the hotel to please check for clowns in my closet before I enter the room. But I assume you didn't really want to know my biggest fear -- you just want to know my biggest fear in relation to Whois policy, correct? Two different things, but yeah -- if a clown jumped out of my hotel closet, that would probably be the realization of my biggest fear. That's probably nothing that this working group can do much about, though.

   John Horton
   President and CEO, LegitScript

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   On Wed, Mar 22, 2017 at 9:24 AM, nathalie coupet via gnso-rds-pdp-wg <gnso-rds-pdp-wg at icann.org<mailto:gnso-rds-pdp-wg at icann.org>> wrote:

      +1 I must say I'm a bit disillusioned by the entire process. This PDP should look like a negotiating table, instead it is more like a War of Trenches.
      If stakeholders are not motivated to negotiate, there is no sense of urgency and stakes for change are so low, then I wonder what we are doing here in the first place.
      Could every stakeholder state what their biggest fear is, and we could try to avoid their realization?
      Or maybe, in last resort, we should just vote for the best proposal and go home?

      Nathalie

      Sent from my iPhone

      > On Mar 22, 2017, at 12:06 PM, Andrew Sullivan <ajs at anvilwalrusden.com<mailto:ajs at anvilwalrusden.com>> wrote:
      >
      >> On Wed, Mar 22, 2017 at 10:19:56AM -0500, John Bambenek wrote:
      >> Yes there is a difference which is why I am using both words. And that's why I am suggesting we talking about optional and maskable fields right up front as part of the requirements discussion not some ancillary discussion that happens later after all the decisions are already made.
      >>
      >
      > I thought the WG had already decided on a different (multi-pass)
      > strategy, in which data collection itself was treated first with the
      > principle that, if there were some (legitmate, hand-wave hand-wave)
      > purpose then collection would be considered.  Later, the further
      > question of access to such collected items would be taken up.
      >
      > I don't really care which way we do this, but it seems to me that we
      > need to stop arguing about the way by which we'll reach a result and
      > start actually doing work in the direction of some result.  The
      > meta-discussions about process are wearing out contributors (well, at
      > least one contributor!) and creating the condition in which those who
      > want no changes at all will get their way by exhaustion.  If ICANN is
      > incapable of coming to terms with the deficiencies of whois (the
      > protocol) after all this time, it will be revealed to be ridiculous.
      >
      > Best regards,
      >
      > A
      >
      > --
      > Andrew Sullivan
      > ajs at anvilwalrusden.com<mailto:ajs at anvilwalrusden.com>
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