[registrars] Comments on WHOIS task force recommendation on Conflicts with Local law

[Bruce Tonkin]

Hello All,

The WHOIS task force have been discussing a proposed consensus
recommendation with respect to the conflict between local laws and
ICANN.

I think the principles should be:
- registrars must comply with their ICANN agreements
- registrars must comply with the laws of the countries they operate in
- registrars need to be innovative in coming up with solutions to
problems that meet both the above requirements
- ICANN staff can assist registrars by providing feedback on whether the
innovative approaches by registrars are still compliant with the ICANN
agreements
- ICANN staff should assist the GNSO policy process by providing advice
that assists refining the consensus polices to make it easier for
registrars to comply with local laws, provided these laws are in the
best interest of registrants and Internet users generally

The draft consensus policy recommendation states:



"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 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."

I recommend that (c) above either be deleted or redrafted as:
"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;


Regards,
Bruce Tonkin