[IAG-WHOIS conflicts] Dual Trigger Proposal

Tue Jun 2 19:56:04 UTC 2015

Steve, James and all:

I agree with Steve that the most authoritative sources of interpretation of national legal frameworks are agencies charged with their enforcement, particularly in the context of a policy which requires a credible demonstration that national laws prevent compliance with relevant obligations.  I've taken a further look at Steve's proposal, attached here for ease of reference, and I would like to suggest we focus on whether we a possible way to bridge the gap could be to consider the necessity and feasibility of the requirement that an agency attest to its intention or preparedness to enforce the relevant law against the contracted party unless contractual obligations are adjusted in a specified manner - currently set forth as Paragraph 4.

Recognizing that agencies may be reluctant to take on what might be considered a positive obligation to enforce, I think that paragraphs 1 through 3 would provide a trigger mechanism which embodies the best source of national law interpretation, while stopping short of requiring any specific legal action to be commenced - consistent with the underlying policy.

This is my own view, and obviously can't speak for Steve or others who have supported his proposal.

Bradley

From: whois-iag-volunteers-bounces at icann.org [mailto:whois-iag-volunteers-bounces at icann.org] On Behalf Of Metalitz, Steven
Sent: Monday, June 01, 2015 2:10 PM
To: 'James Gannon'; whois-iag-volunteers at icann.org
Subject: Re: [IAG-WHOIS conflicts] Dual Trigger Proposal

Hello James and colleagues,

While I appreciate that this is a constructive proposal and that it has been put forward in a good faith effort to find broader support, the problem remains whether it is consistent with the policy that it seeks to implement.  That consensus policy states that the trigger to seeking a waiver of the contractual Whois obligations that the contracted party has undertaken is appropriate only when the contracted party "can credibly demonstrate that it is legally prevented by local/national privacy laws or regulations from fully complying" with those obligations. The issue is whether a written opinion prepared by a law firm at the behest of that contracted party can, by itself, amount to that credible demonstration.  I believe that the answer is no, and thus a procedure that allows such an opinion, standing alone, to trigger such a waiver is inconsistent with the policy and should not be adopted.

In his earlier response to Bradley, James stated "if a national law is in effect in the jurisdiction of the registrar and the registrar has competent legal opinion that the law is applicable to their business then we must accept that there is an actual prevention." I don't believe we must or should accept that, because a law firm retained by the contracted party does not have the capability to enforce that law and thus to carry out the "actual prevention" the policy requires as a trigger. While I agree with James that "we cannot go down the road of assuming that a registrar will not comply with a national law or that a national law will not be enforced," the law firm legal opinion standing alone does not credibly demonstrate either non-compliance or the realistic threat of enforcement.

As stated in the European Commission comments submitted last year, "the decision of granting of an exemption to the implementation of the contractual requirements concerning the collection, display and distribution of Whois data should remain exclusively based on the most authoritative sources of interpretation of national legal frameworks."   Simply put, law firms retained by contracted parties are not "the most authoritative sources of interpretation of national legal frameworks."  The agencies charged with enforcement of such laws are, which is why I proposed the alternative trigger based on a written statement from such a source.   I would certainly welcome suggestions for ways to refine this alternative trigger, or to consider additional alternatives that also satisfy the policy's requirement of a "credible demonstration of legal prevention."

Steve Metalitz

From: whois-iag-volunteers-bounces at icann.org<mailto:whois-iag-volunteers-bounces at icann.org> [mailto:whois-iag-volunteers-bounces at icann.org] On Behalf Of James Gannon
Sent: Monday, May 25, 2015 7:21 AM
To: James Gannon; whois-iag-volunteers at icann.org<mailto:whois-iag-volunteers at icann.org>
Subject: Re: [IAG-WHOIS conflicts] Dual Trigger Proposal

Hi All,

Please find attached Rev 1 on the dual trigger, incorporating some small changes to the trigger text that I received feedback on.
If staff want to put this into a google doc for feedback please feel free.

-James

From: whois-iag-volunteers-bounces at icann.org<mailto:whois-iag-volunteers-bounces at icann.org> [mailto:whois-iag-volunteers-bounces at icann.org] On Behalf Of James Gannon
Sent: Thursday, May 07, 2015 12:32 PM
To: whois-iag-volunteers at icann.org<mailto:whois-iag-volunteers at icann.org>
Subject: [IAG-WHOIS conflicts] Dual Trigger Proposal

Hi All,
In an effort to try and find a common ground, and after recognizing Steve's input and comments on the call last night that his proposal needs not be the exclusive trigger I have tried to string together some draft language on what I am calling a Dual Trigger process.
My changes have focused on step one being the trigger step, my changes to the remainder of the process have been minor, a change of 'shall' to 'may' in Section 2 to reflect the change in substance of the trigger mechanism. And the addition of Steve's language to the Consultation period for a public comment period.

Steve: I think I have faithfully reproduced your language here please let me know if I changed anything that changes the substance of your proposal.
All: I would appreciate comments or input on the proposal.

Please turn off tracking changes on formatting under the 'Show Markup' pane if you get spammed with changes related to formatting. As always my battle with Word and its method of dealing with formatting revisions continues!

Please treat this as a Zero draft for discussion.

James Gannon
Director
Cyber Invasion Ltd
Dun Laoghaire, County Dublin, Ireland
Office: +353 (1)663-8787
Cell: +353 (86)175-3581
Email:james at cyberinvasion.net<mailto:james at cyberinvasion.net?subject=Via:%20Email%20Signature>
GPG: https://keybase.io/jayg

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