[Rt4-whois] Help required - NOW EVEN EASIER!!

Tue Aug 16 15:40:56 UTC 2011

Bill, you have a great point. It'll be hard to reach a definition that
is convenient to greeks and trojans.

IOW it's almost impossible to please everyone.

Omar

2011/8/16 Smith, Bill <bill.smith at paypal-inc.com>:
> I'm for 2. It keeps us in "ICANN" language making both definitions and discussion simpler. I consider producer, processor, consumer, and maintainer to be legal terms subject to interpretation by the court.
>
> It's impossible for us to determine a priori which of the legal definitions would apply to any of the ICANN terms in all situations. That determination is dependent on the specific facts of each individual case, and will be made by the court not us.
>
> I could support the inclusion of the legal terms but think we might be best served by referencing one or more definitions and suggesting a few equivalencies given a set of facts. If we don't limit ourselves to one set of facts (or perhaps a few), I doubt we'll reach agreement and that won't serve us well - in my opinion.
>
>
> On Aug 15, 2011, at 3:42 PM, "Susan Kawaguchi" <<mailto:susank at fb.com><mailto:susank at fb.com>susank at fb.com<mailto:susank at fb.com>> wrote:
>
> Hello,
>
> Applicable Laws
>
> Sorry for the late input but hopefully we can all discuss on Wednesday’s call.     I am concerned that by adding “or any other relevant laws which are binding on one or more of the parties" this will confuse the issues with the definition.  Several comments pointed out that although individuals may be protected by many different laws around the world that at least in the EU and US businesses are explicitly not protected in the same manner and that they have specific obligations to provide information if they are engaging in commercial activity on the internet.
>
> The IPC made a very good point in their comments not all laws that involve the protection of data are actually applicable to ICANN and the WHOIS policy.
>
> The following is an excerpt from their comments:
>
> “In order to assess whether ICANN is fulfilling
> this commitment, the Review Team must focus on which laws are applicable to ICANN in
> carrying out this policy. This can be a difficult question to answer. While some national laws
> may apply to ICANN’s ability to enforce the requirements of providing open Whois access, it
> seems inconceivable that “any and all local and national laws that regulate and/or control the
> collection, use, access and disclosure of personally identifiable information” are all applicable to
> ICANN in its enforcement of this policy.”
>
>
> Producers and Maintainers
>
> These definitions have been problematic and confusing to me from day one.  I understand James’ point in defining the terms in this way (and I agreed to it as part of the team) but it is obvious from the comments that we have caused some confusion.
>
> Two possible solutions:
>
>
> 1.        Provide additional information with the definition that James originally provided
>
>
>
> Existing Organizations:  Where do they fit?
>
>
>
> The subteam is unanimous on the following:
>
> ----------------------------------------
>
> Registrants = Producers
>
> ICANN = Maintainer (Data Controller)
>
> gTLD REGISTRY = Maintainer (Data Controller and Data Processor)
>
> gTLD REGISTRAR = Maintainer (Data Processor)
>
> WHOIS DATA ESCROW PROVIDER = Maintainer (Data Processor)
>
>
>
> The subteam disagrees on the following:
>
> ----------------------------------------
>
> WHOIS DATA AGGREGATOR = Data Processor (Susan), No Category (James)
>
> PRIVACY/PROXY SERVICE = Data Processor (Susan), Producer or No Category (James)
>
>
>
> We may have to add to this list as there may be other services that fit into these categories
>
>
> 2.     Revert to the usual terms such as Registrant, Registrar, Registry etc. that are well known and understood.
>
>
> Looking forward to the discussion on Wednesday.
>
> Susan
>
>
> From: <mailto:rt4-whois-bounces at icann.org> <mailto:rt4-whois-bounces at icann.org> rt4-whois-bounces at icann.org<mailto:rt4-whois-bounces at icann.org> [mailto:rt4-whois-bounces at icann.org] On Behalf Of Emily Taylor
> Sent: Monday, August 15, 2011 2:26 AM
> To: Mikhail Yakushev
> Cc: <mailto:rt4-whois at icann.org> <mailto:rt4-whois at icann.org> <mailto:rt4-whois at icann.org> rt4-whois at icann.org<mailto:rt4-whois at icann.org>
> Subject: Re: [Rt4-whois] Help required - NOW EVEN EASIER!!
>
> Hi all
>
> Thanks for your feedback.   I agree with Michael and Bill, except that I think we need to tweak the definition further.  As I recall, there were some comments (the GAC? others?) to the effect that, while data protection/privacy laws are the obvious example of relevant applicable laws, our definition should not exclude other relevant applicable laws - and therefore we should add some words like "or any other relevant laws which are binding on one or more of the parties".  The commentators may have suggested better wording, but I think we do need to consider this sort of sweep up.
>
> Kind regards
>
> Emily
> On 15 August 2011 10:18, Mikhail Yakushev <<mailto:m.yakushev at corp.mail.ru><mailto:m.yakushev at corp.mail.ru><mailto:m.yakushev at corp.mail.ru>m.yakushev at corp.mail.ru<mailto:m.yakushev at corp.mail.ru>> wrote:
> Dear Sharon,
> Thank you very much for your valuable work.
> I mostly share Bill’s views (see his separate e-mail) on most comments and I think there is no proven necessity to make any substantial changes in any of the definitions.
> As for the “Applicable Laws” definition:
>
> (a)    The  feedback was mostly positive,
>
> (b)    I am ready to prepare a short response for each comment – based on Bill’s methodology ☺,
>
> (c)    I think it is possible to agree with Lexinta proposal and to remove the reference to the UN Guidelines on Personal Data – indeed, it’s legal force is much weaker, that the Human Rights Declaration. However, Lexinta’s reference to the ‘applicable’ laws (making an unfortunate cross-reference definition) should also be omitted.
> Regards,
> Michael
>
> From: <mailto:rt4-whois-bounces at icann.org> <mailto:rt4-whois-bounces at icann.org> <mailto:rt4-whois-bounces at icann.org> rt4-whois-bounces at icann.org<mailto:rt4-whois-bounces at icann.org> [mailto:<mailto:rt4-whois-bounces at icann.org><mailto:rt4-whois-bounces at icann.org><mailto:rt4-whois-bounces at icann.org>rt4-whois-bounces at icann.org<mailto:rt4-whois-bounces at icann.org>] On Behalf Of LEMON, Sharon
> Sent: Friday, August 05, 2011 1:04 PM
> To: <mailto:rt4-whois at icann.org> <mailto:rt4-whois at icann.org> <mailto:rt4-whois at icann.org> rt4-whois at icann.org<mailto:rt4-whois at icann.org>
> Subject: [Rt4-whois] Help required - NOW EVEN EASIER!!
>
>
> NOT PROTECTIVELY MARKED
>  Hello Everyone,
>
> Last week I sent out my part of the report - definitions for comment and assistance.  Response was
> limited ;-), but I still need your help.
>
> So - to make it even easier I have subdivided the work into three and you only need to look at the one which relates to the subgroup you were in.  I would like you to look at the definition, the feedback received and let me know if you think we should change it in light of that feedback. The first document is the key for those who fedback, the second the defination and comments and the third the longer version, should you be interested.  I have now incorporated the LE feedback from both Peter and I and summarised the comments, rather than just listed them.
>
> This will only take minutes PROMISE - and  I would really like to feedback at our next conference call and I am off next week - so you have until Monday 15th!.
>
> So - Producers and Maintainers - James, Susan and Wilfried
>       Applicable Laws -Kim, Omar, Michael, Lynn
>       Law Enforcement - Kim, Lutz, Peter.
>
> Here's hoping,
>
> Sharon
>
>
>
> Sharon LEMON OBE
> Deputy Director
> Cyber and Forensics
> Serious and Organised Crime Agency (SOCA)
> 07768 290902
> 0207 855 2800
>
>
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