[IRT.RegDataPolicy] IRT Liaison report on Rec7 during the 20Aug2020 GNSO Council Meeting

Fri Sep 11 11:13:42 UTC 2020

Good Morning,

+1 Amr, I was thinking along the same lines of a question.

But I also think it is important to know if everyone in the IRT (including staff) is supportive of the outcome, before taking this question forward. And what I mean by that is:

  *   if the Council believes there is no conflict between Rec 7 and the Thick WHOIS Policy then the recommendation language is correctly added back in as stated in the recommendation, and;
  *   if the Council believes there is a conflict between Rec 7 and the Thick WHOIS Policy then Council should provide direction on how to resolve the perceived conflict.

I also think that if the IRT supports these outcomes then these outcomes should be part of the question as well, so as to aid the Council in making their decision.

Thoughts?

Thanks
Roger

________________________________
From: IRT.RegDataPolicy <irt.regdatapolicy-bounces at icann.org> on behalf of Amr Elsadr <aelsadr at icannpolicy.ninja>
Sent: Friday, September 11, 2020 4:38 AM
To: irt.regdatapolicy at icann.org <irt.regdatapolicy at icann.org>
Subject: Re: [IRT.RegDataPolicy] IRT Liaison report on Rec7 during the 20Aug2020 GNSO Council Meeting

Notice: This email is from an external sender.

Hi,

If I’m not mistaken, we’re quickly running out of time to meet the deadline to submit a question to the GNSO Council in time for its September meeting. Sebastian will likely need us to come to some kind of conclusion on how to interact with the Council on by Monday. If I’m not mistaken, identifying reaching this conclusion is the primary objective of this thread.

Like others, I don’t believe asking the Council to adjudicate on the existence (or the lack thereof) of a valid legal basis to transfer Registration Data from Registrars to Registries is the best approach. Instead, and perhaps more appropriately, should we ask the GNSO Council to provide guidance on whether it believes there is a conflict between the “thick” Whois Policy and Recommendation #7 in the EPDP Phase 1 Final Report?

This question seems to be at the heart of the disagreement among members of the IRT, and sounds to me like something the Council would be better suited to provide guidance on.

Thanks.

Amr

> On Sep 10, 2020, at 9:16 PM, Rubens Kuhl <rubensk at nic.br> wrote:
>
> Alex,
>
> That assumption is wrong. A legal basis is also required in the Thick WHOIS policy, as listed in https://www.icann.org/resources/pages/thick-whois-transition-policy-2017-02-01-en
>
> Implementation Note
> Where a conflict exists between local privacy laws and requirements included in this Policy, ICANN Procedure for Handling WHOIS Conflicts with Privacy Law is available for Registry Operators and Registrars
>
> Deference to laws are also present in the RAA and RA. Since we are talking about data from registrars, this is the RAA section:
> https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en
>
> 3.7.2 Registrar shall abide by applicable laws and governmental regulations.
>
> So if everything is already constrained by law, saying a new policy is also constrained by law changes nothing.
>
>
> Rubens
>
>
>
>
>> On 10 Sep 2020, at 14:15, Alex Deacon <alex at colevalleyconsulting.com> wrote:
>>
>> Again let's not overcomplicate things.
>>
>> I appreciate the argument that we should keep the "provided an appropriate legal basis exists" language as that the IRT is not empowered to amend policy recommendations adopted by the GNSO Council and the ICANN Board.
>>
>> It has also been stated numerous times that a legal basis doesn't exist.  (As you know I don't agree but whatever...)
>>
>> So I'm simply pointing out that if we include that language in the one doc the IRT explicitly amends policy recommendations adopted by the GNSO Council and the ICANN board (Thick WHOIS) which everyone is admonishing me not to do.
>>
>> This is the jam we are in - don't kill the messenger.
>>
>> Alex
>>
>>
>>
>>
>> ___________
>> Alex Deacon
>> Cole Valley Consulting
>> alex at colevalleyconsulting.com
>> +1.415.488.6009
>>
>>
>>
>> On Wed, Sep 9, 2020 at 2:23 PM Rubens Kuhl <rubensk at nic.br> wrote:
>>
>>
>>> On 9 Sep 2020, at 15:10, Sarah Wyld <swyld at tucows.com> wrote:
>>>
>>> Hello team,
>>>
>>> I'd like us to return to Roger's initial email, which I think had some very valuable points in it that have been a bit passed over. I've attached it here for reference (hope it comes through).
>>>
>>> Recommendation #7 says the data "must be transferred from registrar to registry provided an appropriate legal basis exists and data processing agreement is in place."
>>>
>>> Whether the Thick Whois Transition Policy is itself the grounds for a legitimate interest in the data or not is beside the point; our duty in this IRT is to implement the recommendations, and omitting that language from the final Policy would mean we lose requirements which the Phase 1 EPDP team found important enough to specifically include in the recommendation.
>>>
>>> If a Registry's implementation of the Thick Whois Transition Policy is such that all the data elements listed in Rec 7 are required, then that's fine as long as the registry provides an appropriate data processing agreement to the registrar. But it's not appropriate for us as the IRT to modify the Policy by removing this requirement.
>>>
>>
>> And if the IPT tries removing that language without an IRT consensus, this would be fast grounds to an RfR or to an IRP.
>>
>> If the legal basis exists, there is no problem in keeping the exact recommendation language since it always be true, right ?
>>
>>
>> Rubens
>>
>>
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