[NCAP-Discuss] About the brief from ICANN Legal on "Visible Interruption and Notification"

[Warren Kumari]

On Thu, Jan 11, 2024 at 4:57 PM, Ram Mohan <rmohan at donuts.email> wrote:

> Thanks Matt. This is helpful.
>

Yup / +lots.


I don't think there has been any notion of ill will or bad faith.
>

Also yup / +lots.


The transparency in publishing the brief helps clear the minds of any who
> might think so.
>


… And once again, yup / +lots.
W


Regards
> Ram
>
> On Thu, Jan 11, 2024, 3:51 PM Matt Larson <matt.larson at icann.org> wrote:
>
>> Dear colleagues,
>>
>> The SO and AC leadership met this week in Washington, DC, and the topic
>> of NCAP came up in the context of a discussion of a brief about “Visible
>> Interruption and Notification” (formerly “Active Collision Assessment” and
>> hereafter VIN, for lack of a shorter name or better abbreviation) that I
>> requested from ICANN Legal. I was not in the room, but apparently there is
>> concern about the existence of this brief and if it signals anything about
>> ICANN org’s plans for NCAP Study 2. I’m writing this email to relate the
>> history behind the brief and show that there is no ill intent.
>>
>> There has always been a contingent in the DG who strongly support VIN. As
>> time passed, it became increasingly clear to me that the final Study 2
>> report would almost certainly include a recommendation for VIN as a tool
>> for the TRT. Back in the 2012 round, a similar (if not identical) idea was
>> proposed and rejected for privacy and liability reasons. (Controlled
>> Interruption was ultimately used instead as a name collision identification
>> and notification technique.) I recalled the reception that the “honey pot”
>> idea (as it was called then) from 2012 had received and didn’t want the org
>> to be unprepared when Study 2 was published. So in March 2023 I briefed
>> ICANN Legal on the technical details of VIN (then called Active Collision
>> Assessment) and asked for an opinion on possible issues. That might seem a
>> long time ago, but please recall that this group has thought Study 2 was
>> always a couple months from completion for over a year. The document that
>> ICANN Legal provided was written as legal advice for ICANN org. The brief
>> is therefore labeled confidential attorney-client work product: not because
>> the conclusions are secret (they’re not) but because I didn’t ask for a
>> document suitable for publication. The intent at that point was a document
>> for the org’s internal information. I believe I mentioned the brief
>> informally to a few people as time passed: I certainly wasn’t hiding its
>> existence.
>>
>> In my experience, a well-functioning legal department doesn’t tell you,
>> “You can’t do that”. Instead, they say, “If you want to do that, you should
>> consider these issues and risks”. Indeed, the brief doesn’t state “Don’t do
>> VIN.” Rather, it outlines risks (chiefly related to privacy). My read of
>> the brief is that it does take a somewhat pessimistic view of the viability
>> of VIN because of the resulting privacy issues and resulting legal risks.
>>
>> At the October 2023 workshop, we talked extensively about the “toolbox”
>> of techniques for the TRT, including VIN. I decided that it would be
>> appropriate to mention the legal brief when the discussion turned to VIN. I
>> was only able to give a high-level summary and couldn’t share the brief for
>> reasons described above. As those present at the workshop remember, the
>> group ultimately decided that considering legal issues was outside of the
>> DG’s remit, and that the DG would stick to documenting what it felt were
>> the best technical options. It would be up to others with different
>> expertise to determine if any of those techniques had non-technical
>> implications.
>>
>> I hope this (long) message makes it clear that there is nothing funny
>> going on. The brief exists because one person (me) asked for it so the org
>> wouldn’t be caught unprepared at what seemed to be the ever-imminent
>> publication of Study 2. It’s not public because it’s (for now) confidential
>> attorney-client work product. And I’ve explained the delay between the
>> writing of the brief (March 2023) and my mentioning it in a wider context
>> (October 2023).
>>
>> I’ve been involved in NCAP as long as everyone else, and the last thing I
>> want is to see Study 2 thrown out or ignored. That’s not going to happen.
>>
>> I can understand that by now everyone is really curious about the brief.
>> :-) I’ve asked ICANN Legal for a version that can be distributed more
>> widely. Preparing it might be as simple as removing the attorney-client
>> work product label (the content certainly seems innocuous to me) but that’s
>> a decision for ICANN Legal.
>>
>> Also, at the request of the Board Technical Committee, I’m going to go
>> back to Legal now that VIN is actually documented in Study 2 and ask them
>> to update the analysis.
>>
>> So if anyone heard about the discussion this week in Washington and
>> wondered what was going on, I hope this email clears up any possible
>> confusion and allays any possible concerns.
>>
>> Matt (L.)
>>
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