[IAG-WHOIS conflicts] Dual Trigger Proposal

[Christopher Wilkinson]

Good evening:

I have reviewed the 'Dual Trigger' procedure as proposed by James Gannon, for which many thanks.

However as I have explained to the recent conference calls, I see no merit in spending time on tweaking the procedure for handling eventual WHOIS conflicts with privacy and data protection laws when the underlying ICANN policy is fundamentally flawed.

I have proposed to greatly simplify and expedite the matter either by ICANN adapting WHOIS to international best practice whereby all Registries and Registrars would implement a high level of personal data protection and privacy, world wide. Or alternatively, to Reverse the Burden of Proof, whereby Registries and Registrars would, as their primary default, implement applicable privacy and data protection laws in their respective jurisdictions. It would then be up to ICANN to initiate a procedure to examine whether, in any particular case, there was a threat to the stability and security of the Internet.

The present draft document of some six detailed pages is really not workable and contains some serious misconceptions.

-	How many Registries and Registrars, world-wide, would be potentially affected by this procedure? What would be the consequences in cost and staff time for ICANN should they all actually apply for exemption?
	(Into how many languages would the procedure have to be translated before it could be realistically implemented by all present and future affected Registries and Registrars?)

-	ICANN's 'contractual WHOIS obligations' (Section 2.1) are not sacrosanct, particularly when they are inconsistent with applicable law.

-	the reference to '… anticipated impact on the operational stability …' (Section 4.1) is rather tendentious. I am aware of no reason to anticipate that privacy and data protection law would have any such impact. On the contrary, there are a large number of Registries (principally ccTLDs) which do respect applicable law. Did ICANN ever question whether they had any negative impact on stability, security or interoperability etc. of the Internet?

-	The reference in Section 5.2 to "ICANN's forbearance from enforcement of full compliance … " is likely to be perceived as rather offensive. ICANN is not in a position to force Registrars or Registries to choose between ICANN's contractual conditions and applicable law. On the contrary, ICANN's Articles of Incorporation were drafted to ensure that the opposite would be the case.

More generally, there is an underlying issue of fair competition between accredited Registrars in the ICANN gTLD system. Should one accept the procedure as proposed, one would be effectively placing certain Registrars at a competitive disadvantage (a) to undertake an exorbitant procedure to obtain a waiver or exemption from ICANN's contractual conditions and/or (b) to risk infringement of applicable law vis-à-vis their Registrants and public authorities.

Again, such outcome is contrary to the underlying objectives of ICANN which was created in the first place to ensure conditions of fair competition among Registrars, world-wide.

In the light of the above, I would recommend that the working group proceed no further with the so called 'trigger mechanisms' and start again from a more realistic and legally compliant position.

With best regards to you all

Christopher Wilkinson


On 07 May 2015, at 13:31, James Gannon <james at cyberinvasion.net> wrote:

> 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
> GPG: https://keybase.io/jayg
>  
> <IAGWHOIS_Procedure_DualTrigger_Draft0.docx>_______________________________________________
> Whois-iag-volunteers mailing list
> Whois-iag-volunteers at icann.org
> https://mm.icann.org/mailman/listinfo/whois-iag-volunteers

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