WHOIS Task Forces 1 2 314 June 2005 - Minutes ATTENDEES:
GNSO Constituency representatives:
Jordyn Buchanan - Chair
gTLD Registries constituency - Ken Stubbs
gTLD Registries constituency - David Maher
Registrars constituency - Tim Ruiz (alternate)
Registrars constituency - Ross Rader
Non Commercial Users Constituency - Milton Mueller
Non Commercial Users Constituency - Kathy Kleiman
Commercial and Business Users Constituency - David Fares
Intellectual Property Interests Constituency - Steve Metalitz
Intellectual Property Interests Constituency - Niklas Lagergren
Internet Service and Connectivity Providers constituency - Maggie Mansourkia
Internet Service and Connectivity Providers constituency - Greg Ruth Liaisons
At-Large Advisory Committee (ALAC) liaisons - Wendy Seltzer - absent
GAC Liaison - Suzanne Sene ICANN Staff:
Maria Farrell Farrell - ICANN GNSO Policy Officer
GNSO Secretariat - Glen de Saint Géry Absent:
Registrars constituency - Paul Stahura
Registrars constituency - Tom Keller - apologies
Commercial and Business Users constituency - Marilyn Cade - apologies
Non Commercial Users Constituency - Marc Schneiders
Non Commercial Users Constituency - Frannie Wellings
Commercial and Business Users Constituency - Sarah Deutsch - apologies
Internet Service and Connectivity Providers constituency - Tony Harris - apologies MP3 Recording
Summary Agenda 1. Policy and Advice Recommendation 2
2 Purpose of Whois – questions for public forum in Luxembourg
Initial list of questions regarding purpose Policy and Advice Recommendation 2 Steve Metalitz reported that he had worked with Kathy Kleiman to divide the recommendation into a policy recommendation and advice on the procedure that the ICANN staff could use in implementation Most of the present document was drawn from earlier versions.
The goals listed for the procedure include: a. Ensuring that ICANN staff is informed of a conflict at the earliest appropriate juncture; b. Resolving the conflict, if possible, in a manner conducive to stability and uniformity of the Whois system;
this is the level playing field c. Providing a mechanism for the recognition, in appropriate circumstances where the conflict cannot be otherwise resolved, of an exception to contractual obligations with regard to collection, display and distribution of personally identifiable data via Whois; and d. Preserving sufficient flexibility for ICANN staff to respond to particular factual situations as they arise.
(c and d grew out of a discussion with the staff, letting staff respond to situations as they arose.) Part two is identical to what it was before. Kathy Kleiman commented that the text of the procedure still contained the previous edits, e.g. from Tom Keller which could be discussed by the task force. The four high level goals would be part of the consensus policy. Ross Rader asked for an explanation on the notion of the "level playing field".
Steve Metalitz explained that it came from postings to the combined task force list and Jordyn Buchanan added that it reflected the registrars' concern that the procedure had the potential to create competitive imbalances.
Kathy Kleiman added that it also concerned stability and uniformity and captured language about the level playing field that Task Force 2 had been discussing. Ross Rader commented that the term " whois system " should be broadened for the staff to apply the guidelines in a broader context and he suggested further consultation with his constituency.
Constituency statements usually took 2 to 4 weeks to develop. Jordyn Buchanan suggested working Ross Rader's concern on the mailing list and then making a call for constituency statements on the policy recommendation and the advice on the procedure at the same time. Where does this fit in with the policy development process (PDP) in the ICANN Bylaws?
The PDP requires constituency statements:
6. Public Notification of Initiation of the PDP
After initiation of the PDP, ICANN shall post a notification of such action to the Website. A public comment period shall be commenced for the issue for a period of twenty (20) calendar days after initiation of the PDP. The Staff Manager, or some other designated representative of ICANN shall review the public comments and incorporate them into a report (the "Public Comment Report") to be included in either the Preliminary Task Force Report or the Initial Report, as applicable. Task Force 1, Task Force 2 and Task Force 3 constituency statements were not germane to the specific policy recommendation 2.
In November 2004 the recommendation 2 was responded to by Paul Verhoef. ICANN General Counsel and senior staff discussed the recommendation with the combined Whois task force on March 15, 2005 . There has been no public comment period.
Thus, step 6 in the PDP process is being revisited which will enable the GNSO policy officer to incorporate the constituency statements and provide a preliminary report that will be posted for public comment. Jordyn Buchanan proposed the following timelines:
- allowing one week for additional edits from the task force on recommendation 2, policy and procedure before constituency comments were requested
- Tuesday 21 JUNE 2005 - aim to distribute the recommendation to constituencies for formal comment.
- Thursday 21 JULY 2005 - Deadline for constituency responses.
Next step:
Maria Farrell will draft a preliminary report and it will be determined whether or not any changes to the recommendations are appropriate in light of the constituency statements. Tuesday 2 AUGUST 2005 - Target date for task force to vote on recommendations in the preliminary report, and to make it available for public comments.
Tuesday 23 AUGUST Public comment period ends. Consider whether any modifications needed to be made to the recommendations in light of the public comment.
If not, a Final Report that incorporates the public comments would be forwarded to the GNSO Council, probably at the end of August. Maria Farrell proposed sending the recommendation 2 to ICANN General and Deputy Counsel at the same time as it would be sent for constituency statements. Summary 1 Recommendation 2 on conflicts with national laws Steve Metalitz and Kathy Kleiman had circulated their revised draft to the mailing list several days previously. As requested by the task force, they divided the document into a recommendation and a procedure staff could use to implement it. The text of the procedure still contains the edits suggested previously - e.g. by Tom Keller – and the drafters have not amended these. The current version of the recommendation was sent by Kathy Kleiman to the list on Monday, 13 June (subject line: Fwd: [gnso-dow123] Policy and Advice: Recommendation 2) Decisions The task force has one week to comment on and finalize it for circulation for constituency statements.
As the previous public comments on the relevant task force were not germane to this recommendation, we will solicit constituency statements pursuant to section 7(d) of the PDP.
Once we have received constituency statements, Maria Farrell will craft a draft preliminary report and we will determine whether or not any changes to the recommendations are appropriate in light of the constituency statements.
August 2 is the target date to vote on the recommendations in the preliminary report, and to make it available for public comments. At that point, a public comment period begins which should run through about August 23.
The task force then would consider whether any modifications need to be made to the recommendations in light of the public comment. If no modifications are needed,a Final Report that incorporates the public comments would be forwarded to the GNSO Council, probably at the end of August 2005. Actions Jordyn will send a note to the task force outlining the steps to be taken. (This was done immediately after the task force call on 14 June, 2005).
Maria to assist Jordyn in determining if no round of constituency comments more germane to this recommendation has already been conducted.
Initial suggestions will be submitted no later than June 16, and further edits may take place over the following few days.
On Tuesday 21 June the recommendation will be distributed to constituencies for formal comments. Deadline for responses will be July 21.
Ross Rader to submit his comments on the use of the term ‘the whois system’. 2. Purpose of Whois – questions for public forum in Luxembourg
Initial list of questions regarding purpose Jordyn Buchanan referred to his posting of 13 JUNE 2005 and possible questions to pose at the public forum in Luxembourg on task 1 and 2 of the terms of reference
Task 1, Define the purpose of the WHOIS service in the context of ICANN's mission and relevant core values
Task 2 Define the purpose of the Registered Name Holder, technical, and administrative contacts, in the context of the purpose of WHOIS, and the purpose for which the data was collected.
Two ways were proposed:
- gathering input on answering the questions or
- reviewing data items from the past.
Past work includes:
- the original WHOIS task force co-chaired by Marilyn Cade and Tony Harris Whois task force report June 2002 - WHOIS task force 2 did a survey soliciting public comment on the uses of WHOIS
- the Transfers task force defined uses of WHOIS
- recently Maria Farrell's work on the uses of WHOIS data The issues were broken into three subsets,
1. the uses of the WHOIS, which may or may not be distinct from the purpose of WHOIS.
2. work intended to define the purpose of whois
3. the ways various people make use of the various contacts. There seemed to be general agreement that sufficient data had been gathered on the uses of WHOIS.
To articulate or define the purpose of WHOIS was one of the tasks in the terms of reference, and as Tim Ruiz and David Maher suggested it was a policy issue which could be worked on in the task force. Kathy Kleiman disagreed and believed that the purpose of WHOIS had not been sufficiently examined because, firstly, it was set as a task in the terms of reference and secondly it was a term of art in the European Union (EU) Directive. The purpose should be seen in the terms of ICANN's mission, and in relation to the EU Directive. "Purpose" was an important criteria and a legal term, and not a collection of uses, thus the constituencies should be consulted. Milton Mueller suggested asking what was the purpose of the WHOIS system as it contributed to ICANN's mission. International laws affecting privacy or WHOIS were constraints external to the WHOIS system and ICANN itself that had to be respected but it would be useful, as an exercise, to examine "given ICANN's mission and core values, what do we want the purpose of WHOIS to be in ICANN's mission ?" A data protection law expert could be invited to explain some of the interpretations of how purpose has been used in the past as a factual matter when referring to terms such as databases and data collection. Ross Rader believed that the task force should be directly engaged in the question., David Fares cautioned that two concepts were being blurred:
- at the international level, purpose specification on privacy was related to data collection.
- the issue regarding use of that data.
What the task force was concerned about was the purpose of WHOIS which should be kept separate. Kathy Kleiman supported by Maggie Mansourkia suggested soliciting expert advice before the constituencies were asked to respond and emphasised that the intention was to ask an expert to define and frame what that question was and how the task force answer would be interpreted. There were many groups that examined the legal purpose of information collection and its use, however this was a foreign concept under US law but not under European law. Steve Metalitz agreed that the constituencies should be asked to comment on task 1 but had reserves about it being useful as a public forum topic on the purpose of WHOIS at the Luxembourg meetings and believed the one area still to be explored was law enforcement's uses of the WHOIS. He mentioned the presentation at the ICANN meetings in Montreal, in June 2003 by Maneesha Mithal of the Federal Trade commission Jordyn Buchanan summarised:
- request constituency positions on the purpose of WHOIS within the context of ICANN's mission, task 1.
- whether to include this as a topic for the GNSO public forum in Luxembourg
- whether to seek expert input on the purposes Ross Rader expressed concern about the time that would be spent consulting the constituencies thought that there should be a conversation between the task force members about the issue and have them consult their constituencies and broader consultation could be provided during the public comment period Jordyn Buchanan summarised the proposal generally agreed upon:
- Requesting constituency statements on task one, the purpose of WHOIS in the context of ICANN's mission
Time frame 21 July 2005
- In parallel, examine what should be done on the definition of "purpose", data collection by Maria Farrell on the definition of purpose in EU law and other jurisdictions and if appropriate have outside advisors provide information. However this discussion should be deferred. Task 2 Define the purpose of the Registered Name Holder, technical, and administrative contacts, in the context of the purpose of WHOIS, and the purpose for which the data was collected. – ok, let’s move on to our Jordyn Buchanan proposed
- calling for constituency statements due at the same time as those for task 1
- referring to the definition of the contacts provided by the Transfer policy report, surveying the constituencies as to how members populate that data to ascertain the current usage independently of the definitions. For example what types of people are put in the technical contact role, are the registrant and administrative role the same? Steve Metalitz suggested broadening the enquiry to include registrants, Registries and Registrars. Particularly the registrars to find out whether they provide guidance to the registrants about who to fill in for the various contacts. Ross Rader, providing some historical information, commented that the definition from the Transfers task force came from multiple definitions from the community and not from the original work of the task force.
He suggested presenting the definition as described in the Transfer Policy Report and asking the Registrar constituency what they were doing, and Jordyn Buchanan suggested asking whether there was a default response that went into the fields. David Farres reminded Jordyn Buchanan of Marilyn Cade's questions as she was not able to be on the call and it was agreed that they had been answered during the discussions. Jordyn Buchanan summarised:
- call for constituency statements on task 1 and Task 2 of the terms of reference
- supplemental question to users on how they populate contacts and to registrars on how they instruct or guide registrants on the purpose or use of the contacts.
- deadline for response 21st July 2005
- defer call on 21 June to 28 June 2005
- discuss on the list
(i) National law recommendation 2 for constituency statements
(ii) how to move ahead with the meaning of the purpose for WHOIS . Summary - Purpose of Whois – questions for public forum in Luxembourg The task force discussed the questions to be put to the public during the GNSO public forum in Luxembourg on the purpose of whois and the ways people use the various contact types. The task force also discussed possible information gathering on the purpose of whois, particularly regarding the meaning of purpose in the data protection context. The task force also discussed the purpose of the different contacts within the whois system. (e.g. administrative contact, technical contact, etc.) Decisions Task force representatives will go back to their constituencies for constituency statements on the purpose of whois “in the context of ICANN's mission and relevant core values, international and national laws protecting privacy of natural persons, international and national laws
that relate specifically to the WHOIS service, and the changing nature of Registered Name Holders.” (terms of reference text)
Task force will discuss on the list the definition of purpose and having Maria and/or others gather information on this topic, as well as having an outside expert address the meaning of purpose in data protection. Actions · Task force representatives to produce constituency statements on the purpose of whois “in the context of ICANN's mission and relevant core values, international and national laws protecting privacy of natural persons, international and national laws that relate specifically to the WHOIS service, and the changing nature of Registered Name Holders” by Tuesday, 21 July 2005. · Task force representatives will also ask their constituencies (registrants) how they populate the contact fields. This will be a supplemental question to the question on the purpose of whois. · Registrar representatives are to request that constituency members provide information on what instruction and guidance they provide to registrants about the correct data to provide for each contact type, and to indicate whether there is default data populated into each contact type. This will be a supplemental question to the question on the purpose of whois. 3 Next task force call:
Task Force members have asked for the number of calls to be reduced and for work to proceed on the mailing list as much as possible. The next conference call of this task force will be held on June 28th, 2005. See Jordyn Buchanan - Follow up items from the call Jordyn Buchanan thanked all the task force members for participating. The WHOIS task force call ended at 17:35 CET - | 