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

[John Berryhill]

I agree with Tim for the additional reason that the proposal below appears
to engage ICANN general counsel and staff in the business of providing
advice to registrars relative to compliance with their respective national
laws and/or engaging ICANN general counsel in prescribing "ICANN compliance"
in conflict with national authorities.

While any lawyer might enjoy kibitzing on other people's legal problems,
acting on legal guidance from ICANN in the absence of ICANN's acceptance of
malpractice liability and indemnification, seems a bit much for a registrar
to assume.  ICANN's general counsel is, in fact, prohibited by the law of
the State of California from rendering legal advice without exposure to
unlimited personal liability.  If ICANN's counsel desires to opine on the
laws of several nations, then I would admire the fortitude required to seek
admission to practice in those jurisdictions.

Tim is absolutely correct there is a larger principle at work than simply
the WHOIS issue.

It is entirely conceivable that a national law could be so opposed to an
ICANN accreditation provision that it turns out that a registrar cannot
operate in that country and be ICANN compliant.  For example, there are
countries in which business entities cannot legally pay their obligations to
ICANN - e.g. Cuba.  As attractive a notion it may be to send ICANN staff to
North Korea to work out a compromise position on WHOIS or other issues, I am
fond of certain members of that staff and would like to see them return.

There seems to be a line of reasoning in this discussion which has not been
made explicit.  A contract obligation to "abide by applicable laws and
governmental regulations" is not normally understood to excise any other
contract provision that may by its own terms conflict with such applicable
law.  It does, however, render the relevant party incapable of performing.
Hence, it may well be that there are national laws so repugnant to ICANN
contract requirements as to simply make it impossible to accredit or operate
a registrar in the relevant nations. Morphing a "uniform" contract to have
non-uniform requirements depending on a contracting party's location merely
creates a haven or race-to-the-bottom effect.

So, if a law in Whereisastan renders Whereisastanis from operating as duly
ICANN accredited registrars, then that is a problem between the affected
Whereisastanis and their government - it is not ICANN's problem, nor is it
the problem of compliant registrars outside of Whereisastan.

John Berryhill



 -----Original Message-----
From: owner-registrars at gnso.icann.org
[mailto:owner-registrars at gnso.icann.org]On Behalf Of Tim Ruiz
Sent: Friday, June 17, 2005 8:27 AM
To: Bruce Tonkin
Cc: registrars at dnso.org
Subject: RE: [registrars] Comments on WHOIS task force recommendation on
Conflicts with Local law


  Bruce,

  I agree with your principles. I just don't believe we need any new
consensus policy on this subject for the following reasons:

  1. Secton 3.7.2 of the RAA already covers this: "Registrar shall abide by
applicable laws and governmental regulations." Any registrar is capable of
contacting ICANN to open a dialogue when a conflict exists.

  2. Whois is just one area where conflicts might come up. I don't believe a
precedent should be set where PDPs get started on every area or situation
where such conflicts might occur. That is not practical nor achievable.

  I have made a request to the TF for a couple of minor but important
changes to the policy portion, but only out of concern that it *might*
become consensus policy. I do not expect that those changes will be
accepted, but either way I suggest that when the RC is asked for a position
statement on this recommendation that we wholly reject both the policy and
advice portions based on 1 and 2 above.

  Tim




    -------- Original Message --------
    Subject: [registrars] Comments on WHOIS  task force recommendation on
    Conflicts with Local law
    From: "Bruce Tonkin" <Bruce.Tonkin at melbourneit.com.au>
    Date: Fri, June 17, 2005 3:45 am
    To: registrars at dnso.org

    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
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