[registrars] Motion to Adopt: Whois Conflicts
Thomas Keller
tom at schlund.de
Thu Jul 21 07:51:41 UTC 2005
Hello all,
this motion has been endorsed by 5 members of the constituency
Jordyn Buchanan
Marcus Faure
Bruce Tonkin
Paul Stahura
Tom Keller
I therefore ask to move the motion to a vote at the earliest time
possible.
Best,
tom
Am 20.07.2005 schrieb Paul Stahura:
> I endorse this motion as well.
>
> Also, we need to get our statement (on Recommendation 2) into the TF by
> 21 JULY 2005.
> http://www.gnso.icann.org/calendar/#july
> I guess we may be late on that.
>
> -----Original Message-----
> From: owner-registrars at gnso.icann.org
> [mailto:owner-registrars at gnso.icann.org] On Behalf Of Jordyn Buchanan
> Sent: Monday, July 18, 2005 12:36 PM
> To: ross at tucows.com
> Cc: registrars at dnso.org
> Subject: RE: [registrars] Motion to Adopt: Whois Conflicts
>
> I endorse this motion (with the clarification that I think these changes
> were actually worked out within the TF--Bruce has suggested
> modifications to the policy recommendations relating to notification of
> registrants, not this one).
>
> Jordyn
>
> -----Original Message-----
> From: owner-registrars at gnso.icann.org
> [mailto:owner-registrars at gnso.icann.org] On Behalf Of Ross Wm. Rader
> Sent: Sunday, July 17, 2005 1:05 PM
> To: ross at tucows.com
> Cc: registrars at dnso.org
> Subject: Re: [registrars] Motion to Adopt: Whois Conflicts
>
> Registrars -
>
> I hope everyone travelling had a safe return from our meeting! It was
> great reconnecting with each of you.
>
> I also require endorsements and/or amendments to this motion. It is
> extremely important that we provide our task force representatives with
> a clear indication of the consituencies needs as it relates to this
> important issue.
>
> If you do not agree with the text of this motion, please forward an
> amendment to the list and we can discuss it - the motion adopted for
> presentation to the task force does not have to be this one, but it is
> important that we have one.
>
> If you have any questions, please let me know.
>
>
> On 7/11/2005 10:34 AM Ross Rader noted that:
> > I move that we adopt Bruce Tonkin's amendments to the Whois Task Force
>
> > Recommendations on Avoiding Conflicts with National Law and that our
> > Task Force and Council representatives advocate the adoption of this
> > position in their respective meetings and discussions.
> >
> > A text version of Bruce's amendments follow this motion. I have
> > attached PDF and RTF versions to this message.
> >
> > Preamble:
> >
> > Task Force 2 spent over a year collecting data and working on the
> > conflict between a registrar/registry's legal obligations under
> > privacy laws and their contractual obligations to ICANN. Its report
> > included the statement: "The Task Force believes that there is an
> > ongoing risk of conflict between a registrar's or registry's legal
> > obligations under local privacy laws and their contractual obligations
>
> > to ICANN. TF2 Report, Section 2.3,
> >
> http://www.gnso.icann.org/issues/whois-privacy/Whois-tf2-preliminary.htm
> l.
> >
> > By vote of the Task Force, now merged, on May 24, 2005, the work of
> > Task Force 2 is hereby divided into a recommendation for "consensus
> policy"
> > accompanied by "well-developed advice for a procedure."
> >
> > I. Task Force Policy for WHOIS Conflicts with Privacy Law
> >
> > Consensus Policy Recommendation
> >
> > In order to facilitate reconciliation of any conflicts between
> > local/national mandatory privacy laws or regulations and applicable
> > provisions of the ICANN contract regarding the collection, display and
>
> > distribution of personal data via Whois, ICANN should:
> >
> > 1. Develop and publicly document a procedure for dealing with the
> > situation in which a registrar or registry can credibly demonstrate
> > that it is legally prevented by local/national privacy laws or
> > regulations from fully complying with applicable provisions of its
> > ICANN contract regarding the collection, display and distribution of
> > personal data via WHOIS.
> >
> > 2. Create goals for the procedure which include:
> >
> > a. Ensuring that ICANN staff is informed of a conflict at the
> > earliest
> >
> > appropriate juncture;
> >
> > b. Resolving the conflict, if possible, in a manner conducive to
> > stability and uniformity of the Whois system;
> >
> > c. Providing a mechanism for the recognition, in appropriate
> > circumstances where the conflict cannot be otherwise resolved, of an
> > exception to contractual obligations for all registrars` with regard
> > to collection, display and distribution of personally identifiable
> > data via Whois; and
> >
> > d. Preserving sufficient flexibility for ICANN staff to respond
> > to particular factual situations as they arise.
> >
> >
> > II. Guidance on Procedure
> >
> > Well-Developed Advice on a Procedure for Handling WHOIS Conflicts
> > with Privacy Law
> >
> > Based on extensive research and negotiation among Task Force 2
> > together with the merged Task Force and ICANN staff, the following
> > procedure for handling the policy recommendation set out in Section I
> > above is set out as a Recommended Step-by-Step Procedure for
> > Resolution of WHOIS Conflicts with Privacy Law. We encourage ICANN
> > staff to use this Recommended Procedure as a starting point for
> > developing the procedure called for in the Consensus Policy
> > Recommendation above.
> >
> >
> > Step One: Notification of Initiation of Action
> >
> > Once receiving notification of an investigation, litigation,
> > regulatory proceeding or other government or civil action that might
> > affect its compliance with the provisions of the RAA or other
> > contractual agreement with ICANN dealing with the collection, display
>
> > or distribution of personally identifiable data via Whois ("Whois
> > Proceeding"), a Registrar/ Registry must within thirty (30) days
> > provide ICANN's General Counsel (or other staff member as designated
> > by ICANN)1 with the following information:
> >
> > Summary description of the nature and status of the action (e.g.,
> > inquiry, investigation, litigation, threat of sanctions, etc.) Contact
>
> > information for the responsible official of the registrar/registry for
>
> > resolving the problem.
> > Contact information for the responsible territorial government agency
> > or other claimant and a statement from the registrar/registry
> > authorizing ICANN to communicate with those officials or claimants on
> > the matter. If the registrar/registry is prevented by applicable law
> > from granting such authorization, the notification should document
> this.
> > The text of the applicable law or regulations upon which the local
> > government or other claimant is basing its action or investigation, if
>
> > such information has been indicated by the government or other
> claimant.
> >
> > Meeting the notification requirement permits Registrars/Registries to
> > participate in investigations and respond to court orders,
> > regulations, or enforcement authorities in a manner and course deemed
> > best by their counsel.
> >
> > Depending on the specific circumstances of the Whois Proceeding, the
> > Registrar/Registry may request that ICANN keep all correspondence
> > between the parties confidential pending the outcome of the Whois
> > Proceeding. It is recommended that ICANN respond favorably to such
> > requests to the extent that they can be accommodated with other legal
> > responsibilities and basic principles of transparency applicable to
> > ICANN operations.
> >
> > Step Two: Consultation
> >
> > Unless impractical under the circumstances, we recommend that the
> > ICANN General Counsel, upon receipt and review of the notification
> > and, where appropriate, dialogue with the registrar/registry, consider
>
> > beginning a process of consultation with the local/national
> > enforcement authorities or other claimant together with the
> > registrar/registry. The goal of the consultation process should be
> > to seek to resolve the problem in a manner that preserves the ability
> > of the registrar/registry to comply with its contractual obligations
> to the greatest extent possible.
> >
> > The Registrar should attempt to identify a solution that allows the
> > registrar to meet the requirements of both the local law and ICANN
> > obligations. The General Counsel can assist in advising the registrar
>
> > on whether the proposed solution meets the ICANN obligations.
> >
> > If the Whois proceeding ends without requiring any changes and/or the
>
> > required changes in registrar/registry practice do not, in the opinion
>
> > of the General Counsel, constitute a deviation from the R.A.A. or
> > other contractual obligation , then the General Counsel and the
> > registrar/registry need to take no further action.
> >
> > If the registrar/registry is required by local law enforcement
> > authorities or a court to make changes in its practices affecting
> > compliance with Whois-related contractual obligations before any
> > consultation process can occur, the registrar/registry shall promptly
> > notify the General Counsel of the changes made and the law/regulation
> > upon which the action was based. The Registrar/Registry may request
> > that ICANN keep all correspondence between the parties confidential
> > pending the outcome of the Whois Proceeding. It is recommended that
> > ICANN respond favorably to such requests to the extent that they can
> > be accommodated with other legal responsibilities and basic principles
>
> > of transparency applicable to ICANN operations.
> >
> >
> > Step Three: General Counsel analysis and recommendation
> >
> > If the local/national government requires changes (whether before,
> > during or after the consultation process described above) that, in
> > the opinion of the General Counsel, prevent full compliance with
> > contractual WHOIS obligations, ICANN should consider the following
> > alternative to the normal enforcement procedure. Under this
> > alternative, ICANN would refrain, on a provisional basis, from taking
> > enforcement action against the registrar/registry for non-compliance,
> > while the General Counsel prepares a report and recommendation and
> > submits it to the ICANN Board for a decision. Such a report may
> contain:
> >
> > i.A summary of the law or regulation involved in the conflict;
> >
> > ii.Specification of the part of the registry or registrar's
> > contractual WHOIS obligations with which full compliance if being
> > prevented; iii.Summary of the consultation process if any under step
> > two; and
> >
> > iv.Recommendation of how the issue should be resolved, which may
> > include whether ICANN should provide an exception for all
> > registrars/registries from one or more identified WHOIS contractual
> > provisions. The report should include a detailed justification of its
> > recommendation, including the anticipated impact on the operational
> > stability, reliability, security, or global interoperability of the
> > Internet's unique identifier systems if the recommendation were to be
> approved or denied .
> >
> > The registrar/registry should be provided a copy of the report and
> > provided a reasonable opportunity to comment on it to the Board. The
> > Registrar/Registry may request that ICANN keep such report
> > confidential prior to any resolution of the Board. It is recommended
> > that ICANN respond favorably to such requests to the extent that they
> > can be accommodated with other legal responsibilities and basic
> > principles of transparency applicable to ICANN operations.
> >
> >
> >
> > Step Four: Resolution
> >
> > Keeping in the mind the anticipated impact on the operational
> > stability, reliability, security, or global interoperability of the
> > Internet's unique identifier systems, the Board should consider and
> > take appropriate action on the recommendations contained in the
> > General Counsel's report as soon as practicable. Actions could
> > include, but are not limited to:
> >
> > Approving or rejecting the report's recommendations, with or without
> > modifications; Scheduling a public comment period on the report; or
> > Referring the report to GNSO for its review and comment by a date
> > certain.
> >
> >
> >
> >
> > Step Five: Public Notice
> >
> > The Board's resolution of the issue, together with the General
> > Counsel's report, should ordinarily be made public, along with the
> > reasons for it, and be archived on a public website (along with other
> > related materials) for future research. Prior to release of such
> > information to the public, the Registry/Registrar may request that
> > certain information (including, but not limited to, communications
> > between the Registry/Registrar and ICANN, or other
> > privileged/confidential information) be redacted from the public
> notice.
> >
> > In the event that such redactions make it difficult to convey to the
>
> > public the nature of the actions being taken by the
> > Registry/Registrar, the General Counsel should work with the
> > Registry/Registrar on an appropriate notice to the public describing
> > the actions being taken and the justification for such actions.
> >
> > Unless the Board decides otherwise, if the result of its resolution of
>
> > the issue is that data elements in the registrar's Whois output will
> > be removed or made less accessible, ICANN should issue an appropriate
> > notice to the public of the resolution and of the reasons for ICANN's
> > forbearance from enforcement of full compliance with the contractual
> > provision in question.
> >
> >
>
>
> --
> Regards,
>
>
> -rwr
>
>
>
>
>
>
> "In the modern world the intelligence of public opinion is the one
> indispensable condition for social progress."
> - Charles W. Eliot (1834 - 1926)
>
>
>
>
>
Gruss,
tom
(__)
(OO)_____
(oo) /|\ A cow is not entirely full of
| |--/ | * milk some of it is hamburger!
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