[dow1-2tf] Expanded "step by step" procedure re conflicts with local law
As requested on last week's call, I have taken a shot at expanding the
TF2 recommendation below into a step-by-step procedure. The draft is
attached in MS Word and also pasted below, for your reactions, comments
and suggestions.
Steve Metalitz
Version 1.1, 10/4/04
DRAFT PROCEDURE FOR CONFLICTS: Step-by-Step
The following procedure should be followed by any registrar (or, in the
thick registry environment, any registry) that believes that it is
legally prevented, by local mandatory privacy law or regulations, from
fully complying with applicable provisions of its ICANN contract
regarding the collection, display and distribution of personally
identifiable data via Whois. This procedure assumes continued
compliance with contractual obligations throughout the process until the
issue is resolved.
Step One: Notification
The registrar notifies the ICANN General Counsel promptly once it
determines that the condition described above applies. The notification
should be in writing and should include at a minimum the following:
* A detailed summary of the problem.
* Contact information for the responsible official of the
registrar for resolving the problem.
* The text of the applicable law or regulations which are asserted
to be preventing full compliance with contractual obligations.
* Citation to the specific provisions of the RAA (or other
applicable contract) which the registrar believes itself to be prevented
from complying with.
* Documentation of the problem, including but not limited to:
o Legal opinions, if any, obtained by the registrar bearing on the
claimed conflict.
o Relevant correspondence with local/national enforcement
authorities bearing on the claimed conflict.
If the problem arises from actions of the local/national enforcement
authority, the notification should include contact details for the
relevant officials of that authority, and the registrar's statement
authorizing ICANN to communicate with those officials on the matter. If
the registrar is prevented by applicable law from granting such
authorization, the notification should document this.
Similarly, if the problem arises from a formal complaint or
contact by a local/national law enforcement authority which cannot be
communicated to ICANN under provisions of local/national law, the
registrar will use appropriate available channels to seek relief from
such a secrecy obligation, and will provide a notification conforming as
closely as possible to what is outlined above as soon as it is able to
do so.
Step Two: Consultation
Promptly upon receipt and review of notification (which may include
dialogue with the registrar), the General Counsel shall begin a process
of consultation with the registrar and, if relevant and available, with
the local/national enforcement authorities. The goal of the
consultation process shall be to seek to resolve the problem in a manner
most conducive to the stability and uniformity of the Whois system and
that preserves the ability of the registrar to comply with its
contractual obligations to the greatest extent possible.
The General Counsel need not undertake this consultation process if
(s)he determines, upon review of the notification, that (a) the
notification does not establish that the registrar is legally prevented
from full compliance due to local/national mandatory legal or regulatory
requirements; or (b) the matter is not ripe for action because there is
a reasonable likelihood that the threatened conflict can be avoided
without the consultation process. Either of these determinations shall
be communicated to the registrar promptly and in writing.
Step Three: Reporting
The General Counsel shall report to the Board as follows:
A. Promptly upon beginning the consultation process described in Step
Two, or upon making either of the determinations described in the second
paragraph of Step Two. This report shall briefly summarize the parties
and issues involved.
B. Every 30 days during the consultation process, unless concluded more
quickly. This report shall summarize the status of the consultation
process.
C. Promptly upon the conclusion of the consultation process. This
report shall include:
i. Summary of the law or regulation involved in the conflict.
ii. Specification of the part of the registrar's contractual
obligation with which it is claimed that the law or regulation prevents
compliance.
iii. Recommendation of how the conflict should be resolved. If
this resolution includes ICANN's forbearance from full enforcement of
compliance with one or more identified contractual provisions, the
report shall include a detailed description of why such forbearance is
recommended and of what other steps, if any, ought to be taken to
promote the stability and uniformity of the Whois system.
The reports described in A and B would not normally be made public. The
report in C would normally be made public, with whatever redactions are
necessary to preserve the confidentiality of proprietary information.
Step Four: Resolution
The Board shall consider and take appropriate action on the
recommendations contained in Report C above as soon as practicable.
Actions could include, but are not limited to:
* Scheduling a public comment period on the report.
* Referring the report to GNSO for its review and comment by a
date certain.
* Approving the report's recommendations, with or without
modifications.
Step Five: Public Notice
The Board's resolution of the issue shall ordinarily be made
public, along with the reasons for it, and shall be archived on a public
website (along with other related materials) for future research.
Unless the Board decides otherwise in its action on Report C, if the
result of its resolution of the issue is that data elements in the
registrar's Whois output will be removed or made less accessible, its
resolution shall include the following features:
* The registrar shall be directed to insert a notification of this
fact in the Whois output, to include, if possible, suggesting other
sources or alternative procedures for obtaining access to the data
element in question.
* ICANN shall 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.
-----Original Message-----
From: owner-dow1-2tf@xxxxxxxxxxxxxx
[mailto:owner-dow1-2tf@xxxxxxxxxxxxxx] On Behalf Of Steven J. Metalitz
IIPA
Sent: Tuesday, September 28, 2004 9:05 AM
To: Jeff Neuman; Marc Schneiders; Jeff Neuman
Cc: dow1-2tf@xxxxxxxxxxxxxx
Subject: [dow1-2tf] RE: Procedure re conflicts with local law
As background and/or a starting point for today's discussion, here is
the recommendation from the TF2 preliminary report:
ICANN should develop and implement a procedure for dealing with the
situation where a registrar (or registry, in thick registry settings)
can credibly demonstrate that it is legally prevented by local mandatory
privacy law or regulations from fully complying with applicable
provisions of its ICANN contract regarding the collection, display and
distribution of personal data via Whois. The goal of the procedure
should be to resolve the conflict in a manner conducive to stability and
uniformity of the Whois system. In all cases this procedure should
include:
* Written notification by the affected registrar/registry to ICANN
with a detailed report which includes but is not limited to:
o The law or regulation that causes the conflict.
o The part of the Whois obligation in question.
o The steps that will have to be taken to cure the conflict.
* If data elements are removed this must be notified to the
requester by the insertion of standardized notice in the Whois results
advising the requester of the problem and, if possible, directing
requester to another source or alternative procedure for obtaining
access to this data element.
* Prompt notification from ICANN to the public informing it of the
change and of the reasons for ICANN's forbearance from enforcement of
full compliance with the contractual provision in question. .
* The changes must be archived on a public website for future
research
Except in those cases arising from a formal complaint or contact by a
local law enforcement authority that will not permit consultation with
ICANN prior to resolution of the complaint under local law, the
procedure should be initiated using the following steps:
* prompt notification by the affected registrar/registry to ICANN
with detailed summary of the problem arising including:
o The law or regulation that causes the conflict.
o The part of the Whois obligation in question.
* consultation by the registrar/registry with ICANN and other
parties (which may include government agencies) to try to resolve the
problem/ remove the impediment to full compliance with contract.
--
Attachment:
Domain Names Whois TF 1+2 DRAFT 1.1 step by step procedure sjm rml 100404.doc
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