RE: [dow1-2tf] Re-Revised Step by Step Procedures
I am comfortable with Milton's draft for the most part. Attached please
find suggested changes in redline format -- the text as I propose to
revise it is pasted below.
I may be late joining the call tomorrow, for which I apologize, but look
forward to the discussion of this document, which I understand is the
main agenda item.
Steve Metalitz
DRAFT PROCEDURE FOR CONFLICTS
Step-by-Step
The following procedures are intended to facilitate reconciliation of
any conflicts between local/national mandatory privacy laws or
regulations and applicable provisions of the ICANN contract regarding
the collection, display and distribution of personally identifiable data
via Whois.
The procedure
Step One: Notification of Initiation of Action
Once learning of an investigation, litigation, regulatory proceeding or
other government or civil action that might affect its compliance with
the RAA, a Registrar/ Registry must within 30 days provide ICANN's
General Counsel with the following information:
* Summary description of the nature and status of the action
(e.g., inquiry, investigation, litigation, threat of sanctions, etc.)
* Contact information for the responsible official of the
registrar for resolving the problem.
* Contact information for the responsible territorial government
agency and a statement from the registrar 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.
* The text of the applicable law or regulations upon which the
local government is basing its action or investigation, if such
information has been indicated by the government.
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.
Step Two: Consultation
Unless impractical under the circumstances, the ICANN General Counsel
shall, upon receipt and review of the notification (which shall include
dialogue with the registrar/registry if appropriate), begin a process of
consultation with the local/national enforcement authorities together
with the registrar/registry. The goal of the consultation process shall
be to seek to resolve the problem in a manner that preserves the ability
of the registrar to comply with its contractual obligations to the
greatest extent possible.
If the investigation or other matter ends without requiring any changes
and/or the required changes in registrar/registry practice do not, in
the opinion of the General Counsel, constitute a deviation from the
R.A.A., then the General Counsel and the registrar/registry need to take
no further action.
If the registrar/registry is required by local law enforcement
authorities to make changes in its practices affecting compliance with
contractual obligations before any consultation process can occur, the
registrar/registry shall promptly notify the General Counsel of the
changes made and the law/regulation upon which the action was based.
Step Three: General Counsel analysis and recommendation
If the local/national government requires changes that, in the opinion
of the General Counsel, prevent full compliance with contractual WHOIS
obligations, ICANN shall refrain, on a provisional basis, from taking
enforcement action against the registrar/registry for non-compliance,
while the General Counsel prepares a report and recommendation and
submits it to the ICANN Board for a decision. The report must contain:
i. A summary of the law or regulation involved in the conflict;
ii. Specification of the part of the registrar's contractual WHOIS
obligations for which the exception is requested; and
iii. Recommendation of whether ICANN should agree to an exception for
the registrar/registry from one or more identified WHOIS contractual
provisions. The report shall include a detailed justification of its
recommendation. .
The registrar/registry shall be provided a copy of the report and
provided a reasonable opportunity to comment on it to the Board.
Step Four: Resolution
The Board shall 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 the report's recommendations, with or without
modifications;
* 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
The Board's resolution of the issue, together with the
General Counsel's report, 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, 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.
________________________________
From: owner-dow1-2tf@xxxxxxxxxxxxxx
[mailto:owner-dow1-2tf@xxxxxxxxxxxxxx] On Behalf Of KathrynKL@xxxxxxx
Sent: Monday, November 01, 2004 9:41 PM
To: dow1-2tf@xxxxxxxxxxxxxx
Subject: [dow1-2tf] Re-Revised Step by Step Procedures
All:
As you know, Milton was asked at the end of the last conference call to
revise the Step by Step Procedures to include the changes discussed in
the sessions, and his closing recommendation that the procedures return
to a single track (with new detail).
Milton worked hard on these revised procedures. He asked me to post
them to you as he is currently out of the country.
Regards, Kathy (Kleiman)
p.s. Word doc attached; text below.
************************************************************************
**************
DRAFT PROCEDURE FOR CONFLICTS
Step-by-Step
Preamble
Whois Task Force 2 anticipated "an ongoing risk of conflict between a
registrar's or registry's legal obligations under local privacy laws and
their contractual obligations to ICANN." (TF2 Report, Section 2.3) The
Task Force determined that "Registrars and Registries encountering such
local difficulties should be allowed an exception from the contractual
WHOIS obligation for the part of the WHOIS data in question by the local
regulation."
In making such an allowance for these exceptions, the Task Force
recognizes two principles:
1) Maintaining global availability of WHOIS data is not part of ICANN's
core mission as defined in Article 1, Section 1 of the bylaws. Registrar
contracts regarding the collection, display and distribution of WHOIS
data can vary without undermining the interoperability of the Internet,
the coordination of the Internet's unique identifiers, or the operation
and evolution of the root name-servers of the DNS.
2) It is desirable to maintain, insofar as it is possible and legal, the
uniformity of gTLD registrar contracts to create a level playing field
for competition.
With those principles as a guide, the following procedures are intended
to facilitate reconciliation of any conflicts between local/national
mandatory privacy laws or regulations and applicable provisions of the
ICANN contract regarding the collection, display and distribution of
personally identifiable data via Whois.
The procedure
Step One: Notification of Initiation of Action
Once formally notified of an investigation, litigation, regulatory
proceeding or other government or civil action that might affect its
compliance with the RAA, a Registrar/ Registry must within 30 days
provide ICANN's General Counsel with the following information:
* Summary description of the nature of the action (e.g., inquiry,
investigation, litigation, threat of sanctions, etc.)
* Contact information for the responsible official of the registrar for
resolving the problem.
* Contact information for the responsible territorial government agency
and a statement from the registrar 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.
* The text of the applicable law or regulations upon which the local
government is basing its action or investigation, if such information
has been indicated by the government.
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.
Step Two: Consultation
If the action is an investigation or inquiry that poses no immediate
demands for a change in practice, the ICANN General Counsel may, upon
receipt and review of the notification (which shall include dialogue
with the registrar), begin a process of consultation with the
local/national enforcement authorities together with the
registrar/registry. The goal of the consultation process shall be to
seek to resolve the problem in a manner that preserves the ability of
the registrar to comply with its contractual obligations to the greatest
extent possible.
If the investigation ends without requiring any changes and/or the
required changes in registrar/registry practice do not, in the opinion
of the General Counsel, constitute a deviation from the R.A.A., then the
General Counsel and the registrar/registry need to take no further
action.
Step Three: General Counsel analysis and recommendation
If the local/national government requires changes that, in the opinion
of the General Counsel, prevent full compliance with contractual WHOIS
obligations, ICANN shall permit the registrar/registry to comply with
the local laws on a provisional basis while the General Counsel prepares
a report and recommendation and submits it to the ICANN Board for a
decision. The report must contain:
i. A summary of the law or regulation involved in the conflict;
ii. Specification of the part of the registrar's contractual WHOIS
obligations for which the exception is requested; and
iii. Recommendation of whether ICANN should agree to an exception
for the registrar/registry from one or more identified WHOIS contractual
provisions. The report shall include a detailed justification of its
recommendation, taking into account the two principles defined in the
preamble.
Step Four: Resolution
The Board shall 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 the report's recommendations, with or without modifications;
* 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
The Board's resolution of the issue, together with the General Counsel's
report, 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.
Attachment:
Whoisstepbystepprocedure- revised (2) 110804.doc |