WHOIS Task Forces 1 & 2

21 December, 2004 - Minutes

ATTENDEES:

GNSO Constituency representatives:

gTLD Registries constituency: - Jeff Neuman - Co-Chair
gTLD Registries constituency - David Maher
Commercial and Business Users constituency - Marilyn Cade
Registrars constituency - Tom Keller
Registrars constituency - Paul Stahura
Intellectual Property Interests Constituency - Steve Metalitz
Intellectual Property Interests Constituency - Niklas Lagergren,
Non Commercial Users Constituency - Milton Mueller
Non Commercial Users Constituency - Kathy Kleiman
Internet Service and Connectivity Providers constituency - Maggie Mansourkia
At-Large Advisory Committee (ALAC) liaisons - Wendy Seltzer
At-Large Advisory Committee (ALAC) liaisons - Thomas Roessler

ICANN Staff Manager: Barbara Roseman
GNSO Secretariat: Glen de Saint Géry

Absent:
Registrars constituency - Jordyn Buchanan - Co-Chair - apologies
Internet Service and Connectivity Providers constituency: - Antonio Harris - apologies
Registrars constituency - Tim Ruiz
Nominating committee representative - Amadeu Abril l Abril
Non Commercial Users Constituency - Marc Schneiders - apologies
Commercial and Business Users constituency - David Fares - aplogies
Intellectual Property Interests Constituency - Jeremy Banks

MP3 recording

Agenda:
1. Discuss recommendation as revised by ICANN staff
A Procedure for conflicts, when there are conflicts between a registrar's of registry's legal obligations under local privacy laws and their contractual obligations to ICANN
2. Discuss priorities and timelines for tiered access

1. Jeff Neuman suggested starting the meeting with reference to the staff response from Paul Verhoef on the task force recommendations on a Procedure for conflicts

The following comments were made: (taken from Barbara Roseman's notes)

Point 1:
Registries and registrars should of course not enter contracts that would be illegal for them to perform.

Paul Stahura: statement is correct, but what about after the agreement is signed, and either the agreement changes, or national law changes? What happens then? That is the point of the recommendation.

Milton Mueller: Staff wants to be the policy maker and there is no flexibility in the terms of the contract. If the bottom-up process decides that exceptions are allowed, then ICANN should follow that decision.

Tom Keller: Trying to build a process in the case when legislation comes up that makes part of the contract illegal when it wasn't illegal before. Can't make policy for everything, just set guidelines.

Jeff Neumann: Agree with all points raised, ICANN is sending message that while registries and registrars are bound by bottom-up process, ICANN is not. If you live in a country where the national law conflicts with an ICANN requirement, then you basically cannot be an ICANN accredited registry or registrar. Understand that they don't want to introduce loopholes to the contracts, want to be able to enforce the contracts, they still need to recognize that this is a problem. Did you really intend to frame it this way?

Steve Metalitz: Need to have a dialogue with John Jeffrey and Paul Verhoef. Seems they don't understand what was trying to be achieved. Can't be as black and white as if the National law conflicts with the Registrars Accreditation Agreement (RAA) that you can't be an accredited registrar. Jeff Neumann: there are some registrars who don't currently comply with the Registrars Accreditation Agreement , what is their status?

Point 2:
Fair competition rules dictate that registries and registrars should not be able to gain a competitive advantage by choosing to operate from a jurisdiction that has purportedly outlawed compliance with part of the Registrar Accreditation Agreement (RAA).

Milton Mueller: What bothers me here is the word "purportedly". We stated that you had to clearly identify the law involved, not just make the claim about illegality. Did they not understand what we wrote?

Paul Stahura: Seem to be saying that competition trumps all other issues.

Tom Keller: Should be extended to all registrars in that country, and then it's up to the Board to decide if they want to continue working with those registrars. Trying to force us to determine what the lowest common denominator is, should be a process to evaluate different requirements and decide what the lowest common denominator is. Staff should be involved, not council

Thomas Roessler: Why is it a problem that someone seeks a competitive advantage through whatever means. This happens in business all the time. Apparent intent of staff is that local law not be taken into account so that registrars don't get a competitive advantage.

Jeff Neumann: Does ICANN believe that registrars will move all of their operations to a locale where they can avoid certain restrictions? Even if they open an office in such a jurisdiction, it wouldn't apply to all of their offices.

Point 3
Without careful study, action to address the concerns raised by TF1/2 could open loopholes to compliance with the RAA that would hurt data accuracy, consumer protection, and other authorised uses of Whois data.

Steve Metalitz: Like other parts of this statement, I agree with point 3, but it's prefaced with "without careful study" as if we haven't given it careful study. We're reacting, in part, to the condescending tone of the staff response. There's a tone here that implies we haven't given this a lot of thought.

Marilyn Cade: considerable gap of understanding between us and the ICANN staff. May still be a gap after dialogue, but the dialogue has to take place. We may be so much better informed that we revise their thinking. After the discussion we may be so much better informed we agree with them, or they may be better informed by our views.


Paul Stahura: we need to check to see if they really understand what we've written. They may fully understand the issue and have a different position on it than the task force.

Point 4:
The recommendation is drafted broadly, and could be read to require ICANN to allow violations of the RAA except to preserve stability or security. The draft report appears to give registrars and registries the right to unilaterally breach the RAA, as long as they give notice to ICANN. ICANN would be unable to take any reaction to ensure compliance without formal action by the Board of Directors, following a process that includes publishing a report that could contain privileged and confidential legal advice from ICANN's attorneys.

Jeff Neumann: May be a drafting problem in the task force language, so perhaps could be better drafted.

Milton Mueller: The issue of whether they, Counsel's report, contained privileged and confidential legal advice could be easily fixed if they would work with us.

Jeff Neumann: what about point that they couldn't act without board approval?

Milton Mueller: That's fully within our remit to clarify what everyone's roles and responsibilities are; including stating that the General Counsel should act with Board approval. If there are legitimate concerns on the part of the staff, the procedure can accommodate them. It's better than saying that if your local law doesn't allow something than you're out, can't be an accredited registrar.

Steve Metalitz: Seems like a lack of understanding of what we're recommending, but there was a lot of discussion and disagreement about what the requirements for General Counsel should be, this was a strong point of disagreement and negotiation in the task force. May be able to be clarified through drafting different language.

Point 5:
The recommendation posits specific activities for the ICANN General Counsel's office, and prescribes actions to the General Counsel's office which may be dealt with more appropriately by policy development, registrar/registry liaison or ICANN's Global Partnerships departments. The specificity of actions described also seems like micro-management of ICANN staff resources in what is supposed to be a policy discussion.

Jeff Neumann: a little confused by this, first part says that policy process shouldn't dictate too many things, but in point 5 they are saying that these issues should go through the policy process.

Marilyn Cade: we have a big gap in understanding between what constitutes our role, vs. what constitutes the staff role in developing bottom-up policy. We probably should invite Council to sit in on the call, implementing policy is a different stage then developing policy.

Jeff Neumann: Does ICANN have to implement consensus policy, regardless?

Marilyn Cade: Yes, or they have to send it back to us for more work.

Milton Mueller: There's a tendency among organizations for staff to become more and more empowered. I don't understand how you can make a policy effective without somehow translating it into a procedure. In the .net situation, we set a policy, and established a procedure. That wasn't micro-management. You have to get down to details about what procedures everyone involved follows, you have to set a procedure. All staffs want to be autonomous, but if you accept the ICANN structure, we're fully within the mandate of the GNSO to set a procedure.

Steve Metalitz: This is another point where having the dialogue might clarify things. We put General Counsel in this stage because we thought that was the right person to do these things, if ICANN staff feels its someone else, then so be it. You have to remember that we started with a more general procedure and got more and more specific. Staff should look at the process of our discussion and see why we arrived at this conclusion. Then determine if they disagree with the recommendation.

Point 6:
In light of the serious concerns meant to be addressed by the recommendation, and the issues outlined above with the initially suggested approach, might it be preferable to focus GNSO attention on developing improvements to Whois policies that will allow for the broadest possible harmony with local regulations, and then continue to leave it up to individual companies to determine whether they can undertake the obligations set forth in ICANN policies and agreements in light of local requirements?

Jeff Neumann: This has most of the condescending tone, and is dismissive of our work. But, they may be right that if we found the right lowest common denominator for Whois, this may not be an issue

Milton Mueller: Just recall that we viewed this as low-hanging fruit and the need for this would go away if we reformed whois in the way some of us want to. But, in the meantime, we need to have something like this.

Marilyn Cade: In the past we were able to work more closely with ICANN staff and get feedback as we were going along. It seems we're at that stage now, where we need to do this consultation and figure out how to proceed given everyone's concerns. Let's just go ahead and schedule it.

Paul Stahura: Maybe if we go ahead with tiered access, we can address local concerns through that. Maybe we don't need this policy.

Jeff Neumann and others: Were under the impression that having Barbara involved in the calls meant there was communication between the task force and ICANN staff. Clearly that wasn't the case, and we need to schedule a call with Paul Verhoef. John Jeffrey, and Dan Halloran, or as many of them as we can get in order to discuss the issues.

Marilyn Cade: Don't need a point-by-point rebuttal, should have a call with the Task Force discussing the background of the recommendations, and have them be prepared to discuss the overall issue. Responsibility of the ICANN staff to familiarize themselves with the work of the task force and come to the discussion prepared to address the heart of the issues.

Jeff Neumann: I'll craft an invite to staff that addresses those concerns for them to be familiar with our prior work. Does anyone have any issues with inviting Council to participate in the call? No, so I'll include them in the invite.
I will issue an invite to ICANN staff, GNSO Council for a call. Purpose of the call is to discuss the email that was sent by Paul Verhoef to the task force, will ask everyone to review the record of the task force. That the record may answer many of their questions, that on the call we'll review where we are, how we got there, and then we'll have a discussion.

Call for Constituency statements
Jeff Neumann proposed proceeding with a call for constituency statements for recommendations relating to improving notification and consent for the use of contact data in the Whois system. The aim was to draft a preliminary report and attach the constituency statements.

Proposed time line:
31 January 2005 deadline for submission of constituency statements

2. Discuss priorities and timelines for tiered access
Next Call:

Proposed date and agenda:
4 January 2005 task force 1/2 teleconference
- firm up questions for the open call with CRISP panel on 12 January 2005
- follow up on request for meeting with ICANN staff
- next steps in Tiered Access - extend invitations

Jeff Neuman thanked everyone for their presence and participation.

Next Call: 4 January 2005
see: GNSO calendar