[Rt4-whois] Procedure for Handling Whois Conflicts with Privacy Laws

Tue Sep 20 18:03:51 UTC 2011

The link I provided (below) was for the draft procedure.  Here's the final
procedure in case you need it:

*Step One: Notification of Whois Proceeding*

1.1 At the earliest appropriate juncture on receiving notification of an
investigation, litigation, regulatory proceeding or other government or
civil action that might affect its compliance with the provisions of the
Registrar Accreditation Agreement (“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 should provide ICANN staff with the following:

   - Summary description of the nature and status of the action (e.g.,
   inquiry, investigation, litigation, threat of sanctions, etc.) and a range
   of possible outcomes.
   - Contact information for the responsible official of the
   registrar/registry for resolving the problem.
   - If appropriate, 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.
   - Description of efforts undertaken to meet the requirements of both
   local law and obligations to ICANN.

1.2 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.

1.3 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. ICANN
will ordinarily 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.

1.4 A registrar or registry that is subject to a WHOIS proceeding should
work cooperatively with the relevant national government to ensure that the
registrar or registry operates in conformity with domestic laws and
regulations, and international law and applicable international conventions.

*Step Two: Consultation*

2.1 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 WHOIS obligations to the greatest extent
possible.

2.1.1 Unless impractical under the circumstances, upon receipt and review of
the notification, ICANN will consult with the registrar/registry. Where
appropriate under the circumstances, ICANN will consult with the
local/national enforcement authorities or other claimant together with the
registrar/registry.

2.1.2 Pursuant to advice from ICANN’s Governmental Advisory Committee, ICANN
will request advice from the relevant national government on the authority
of the request for derogation from the ICANN WHOIS requirements.

2.2 If the WHOIS Proceeding ends without requiring any changes or the
required changes in registrar/registry practice do not, in the opinion of
ICANN, constitute a deviation from the RAA or other contractual obligation,
then ICANN and the registrar/registry need to take no further action.

2.3 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 should promptly notify ICANN of the
changes made and the law/regulation upon which the action was based.

2.4 The registrar/registry may request that ICANN keep all correspondence
between the parties confidential pending the outcome of the WHOIS
Proceeding. ICANN will ordinarily 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*

3.1 If the WHOIS Proceeding requires changes (whether before, during or
after the consultation process described above) that, in the opinion of the
Office of ICANN’s General Counsel, prevent compliance with contractual WHOIS
obligations, ICANN staff may refrain, on a provisional basis, from taking
enforcement action against the registrar/registry for non-compliance, while
ICANN prepares a public report and recommendation and submits it to the
ICANN Board for a decision. Prior to release of the report 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 report. The
General Counsel may redact such advice or information from any published
version of the report that relates to legal advice to ICANN or advice from
ICANN’s counsel that in the view of the General Counsel should be restricted
due to privileges or possible liability to ICANN. Such a report may contain:

   1. A summary of the law or regulation involved in the conflict;
   2. Specification of the part of the registry or registrar's contractual
   WHOIS obligations with which full compliance if being prevented;
   3. Summary of the consultation process if any under step two; and
   4. Recommendation of how the issue should be resolved, which may include
   whether ICANN should provide an exception for those registrars/registries to
   which the specific conflict applies 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.

3.2 The registrar/registry will be provided a reasonable opportunity to
comment to the Board. The Registrar/Registry may request that ICANN keep
such report confidential prior to any resolution of the Board. ICANN will
ordinarily 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*

4.1 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 will 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;
   - Seeking additional information from the affected registrar/registry or
   third parties;
   - 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*

5.1 The Board's resolution of the issue, together with the General Counsel's
report, will ordinarily be made public and be archived on ICANN’s 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. The General Counsel may
redact such advice or information from any published version of the report
that relates to legal advice to ICANN or advice from ICANN’s counsel that in
the view of the General Counsel should be restricted due to privileges or
possible liability to ICANN. In the event that any redactions make it
difficult to convey to the public the nature of the actions being taken by
the registry/registrar, ICANN will work to provide appropriate notice to the
public describing the actions being taken and the justification for such
actions, as may be practicable under the circumstances.

5.2 Unless the Board decides otherwise, if the result of its resolution of
the issue is that data elements in the registry/registrar's WHOIS output
will be removed or made less accessible, ICANN will 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.

*Step Six: Ongoing Review*

6.1 With substantial input from the relevant registries or registrars,
together with all constituencies, ICANN will review the effectiveness of the
process annually.

Denise Michel
ICANN
Advisor to the President & CEO
denise.michel at icann.org
+1.408.429.3072 mobile
+1.310.578.8632 direct

On Tue, Sep 20, 2011 at 10:52 AM, Denise Michel <denise.michel at icann.org>
wrote:
> Dear Team members:
>
> To follow-up on a question raised this morning -- the "ICANN Procedure
> For Handling WHOIS Conflicts with Privacy Law" doesn't impose any
> obligations on registrars and is referred to as a "procedure" as it is
> not a policy that registrars are contractually obligated to implement.
>
> The GNSO concluded a policy development process on the establishment
> of a procedure and in 2006 ICANN's Board adopted the policy and
> directed ICANN staff to issue a conflicts procedure.   While the
> procedure includes possible actions for the affected gTLD
> registry/registrar, this procedure does not impose any new obligations
> on registries/registrars.  The procedure can be found here:
>
>
http://gnso.icann.org/issues/whois-privacy/whois_national_laws_procedure.htm
>
> Please let me know if you need more information.
>
> Regards,
> Denise
>
> Denise Michel
> ICANN
> Advisor to the President & CEO
> denise.michel at icann.org
> +1.408.429.3072 mobile
> +1.310.578.8632 direct
>
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