WHOIS Task Forces 1 2 319 April 2005 - Minutes ATTENDEES:
GNSO Constituency representatives:
Jordyn Buchanan - Co-Chair
Registrars constituency - Paul Stahura
Registrars constituency - Tim Ruiz
Registrars constituency - Ross Rader
Commercial and Business Users constituency - Marilyn Cade
Commercial and Business Users constituency - David Fares
Internet Service and Connectivity Providers constituency - Antonio Harris
Intellectual Property Interests Constituency - Steve Metalitz
Non Commercial Users Constituency - Milton Mueller Liaisons
At-Large Advisory Committee (ALAC) liaisons - Bret Fausett
At-Large Advisory Committee (ALAC) liaisons - Wendy Seltzer Ex-officio Suzanne Sene GAC Liaison to GNSO Council ICANN Staff:
Olof Nordling - Manager of Policy Development Coordination
Maria Farrell Farrell - GNSO Policy Officer GNSO Secretariat - Glen de Saint Géry Absent:
gTLD Registries constituency: - Jeff Neuman - Co-Chair - apologies
Registrars constituency - Tom Keller - apologies
Internet Service and Connectivity Providers constituency - Greg Ruth
gTLD Registries constituency - David Maher
gTLD Registries constituency - Ken Stubbs - apologies
Intellectual Property Interests Constituency - Niklas Lagergren - apologies
Non Commercial Users Constituency - Kathy Kleiman
Non Commercial Users Constituency - Marc Schneiders - apologies
Internet Service and Connectivity Providers constituency - Maggie Mansourkia MP 3 recording
Decisions and Actions Jordyn Buchanan proposed the following agenda:
1. Recap from Mar del Plata
2. Discussion on Preliminary report provided by staff - voting procedure
3. Work plan waiting for GNSO Council proposed re charter of task force 1. Recap from Mar del Plata
There were 2 Whois related meetings in Mar del Plata.
- between the GNSO Council and the Whois task force
- the GNSO public forum with presentations by
Jordyn Buchanan
Denic and Network and Solutions on privacy In the meeting between the GNSO Council and the Whois task force it was agreed that the council would provide a new charter for the task force to narrow the scope of the work and indicate a clearer path forward with new terms of reference within the policy development process (PDP).
Until the new charter is established by the Council, it was agreed to work in 4 areas.
1. On the first recommendation on providing notice, the final report up for the task force vote.
2. The second recommendation on disputes with local or national privacy laws. It would be decided whether it would be a formal consensus recommendation or advice to the board.
3. Tiered access or access to data area.
4. Task force three on accuracy focusing on accuracy in response to complaints. Suzanne Sene reported that the Government Advisory Committee (GAC) working group and the GNSO Council had met for nearly 3 hours, much longer than the scheduled one hour.
It was agreed to work together in a closed working session at the Luxembourg meeting, starting with the topic of law enforcement to facilitate a better understanding of law enforcement uses of whois data. 3. Work plan waiting for GNSO Council proposed re charter of task force
Jordyn Buchanan commented that it was less evident how to go forward with the accuracy topic. He referred to the summary notes regarding accuracy issues and outcome of discussion in Cape Town that Bruce Tonkin had sent to the task force.
Ross Rader commented that the Cape Town discussion had been the most productive and a better starting point for more work. He went on to comment that it would probably be more appropriate for the task force to finish its work and the council appoint a new task force.
Jordyn Buchanan commented that lacking a new charter, his understanding of the agreement in Mar del Plata was that there would continue to be accuracy work within the scope of this task force with the focus on responses to complaints.
Milton Mueller, who was not at the Mar del Plata meetings, felt that tiered access which is the big rock that affected everything else and that unless this task force was capable of doing something on tiered access it did not make sense to have something separate on accuracy . Accuracy had been dealt with for years and the accuracy issue could not be resolved without resolving the privacy issue.
Tony Harris agreed keeping accuracy and tiered access on the table and commented that the cost affected the registrars directly and until a way could be found around that issue that would not impact cost, the discussions would not progress.
Marilyn Cade suggested that further discussion depended on Bruce Tonkin’s proposed charter back but that the minutes reflected everybody’s comments.
Jordyn Buchanan, in view of the proposed GNSO Council meeting on 12 May 2005, suggested scheduling some substantive dialogue on the topics to see what ground could be covered as a useful foundation once the PDP and stricter guidelines were established.
In the three meetings between 19 April and the 12 May he suggested substantive dialogue on each of the 3 topics:
- tiered access,
- international laws
- accuracy.
Task force members indicted their preference: Ross Rader, Registrar Constituency, opted for accuracy following the constructive conversation in Cape Town. Wendy Seltzer, ALAC without an official vote, opted for the tiered access and content of international laws. She specified further that national laws might up front indicate what was possible in terms of the other questions. Milton Mueller's (NCUC) input was in favour of national laws as it was the furthermost progressed and should be moved along. Marilyn Cade, CBUC, wanted clarification that the next step was the recommendation on national law. She also asked for Senior ICANN Staff members to participate on the call. It was agreed that Steve Metalitz would circulate a revised draft of recommendation 2 , a Procedure for conflicts, when there are conflicts between a registrar's or registry's legal obligations under local privacy laws an their contractual obligations to ICANN
to be discussed with the task force and Senior Staff at the next meeting, 26 April 2005 2. Discussion on Preliminary report provided by staff - voting procedure
Maria Farrell commented that no substantial changes had been made to the report. Jordyn Buchanan gave his interpretation of the GNSO Council resolution from 21 November, 2003 that there was one vote per constituency.
Maria Farrell received feedback from ICANN Deputy General Counsel that had a somewhat different interpretation:
Consulting "Dan Halloran on the bylaws and it would seem that constituency reps on the previous task forces probably retain their voting rights. But I believe there is some flexibility here, largely because the Task Force vote is illustrative and not binding.
If the number of voting reps on the call causes a numerical inequality between constituencies (e.g. if there are three registrar votes and the BC votes, as it plans to do, only once), we can ascribe the same number of votes to each constituency, with a constituency voting en bloc having the same nominal amount of votes.
This may be an approach to take if votes within a constituency are likely to differ.
Two things to bear in mind:
1 The Task Force vote is an important indicator and is an essential part of the Final Task Force Report. But it is not a decisive vote.
2 If the ambiguity persists, we can use the list to vote. The deadline is Friday." Ross Rader referred to his original inquiry, in the context of the registrar bylaws, which was that the registrar constituency elected each of its representatives and it was unclear in the present task force whether it was a new task force or the old three task forces combined. Thus he wanted to know if he had a legitimate right to cast a vote. Marilyn Cade proposed:
1. figuring out a way to handle the vote at the meeting
2. devising a question that would be sent to council for clarity on the ongoing work.
She went on to comment that the response from the deputy general counsel was unsatisfactory. Further comments were that each constituency had a different assumption. Though each constituency had three members, not all the members could always be on the call thus each constituency could not always have three people voting. It was unclear to the constituencies how the voting would be handled. Task forces, as chartered by the Council are asked to vote to present a recommendation, they do not vote on consensus policy, but there is process for documenting minority opinions so there is clarity for the council on what comes forward. The situation would appear to confused because of the newness of the current combined task force situation. Milton Mueller agreed with Marilyn Cade that there were ambiguities in terms of voting but saw no reason to hold up the process being too bureaucratic. He was not confused by the deputy general counsel's clarification. The GNSO council was where the real vote was held anyway. Deputy Counsel indicated that it was a merged task force and that he could see all three members voting. The practice had been for each constituency to have one representative on each call however in the case of the NCUC everybody knew the vote was happening and that Milton Mueller would be covering it for the constituency. He offered to back up his statement with formal proxies if necessary but urged the group to move forward. Marilyn Cade clarified that she was not proposing postponing the vote. Steve Metalitz agreed with Marilyn Cade and Milton Mueller and asked the co-chair to cast his vote in favour of approving the preliminary report as he had to drop off the call. Jordyn Buchanan proposed:
- That that any representative from a previous task force could on the call
- The votes would be recorded as constituency votes
- If there were splits within the constituencies it would be reported
In summary, the votes would be enumerated and then it would be reported that constituencies approved, abstained or voted against. The Secretariat noted the following votes: David Fares CBUC – in favour Marilyn Cade CBUC – in favour Tony Harris ISPC – in favour Milton Mueller NCUC – in favour Paul Stahura Registrar C - against the recommendation
Paul Stahura held Thomas Keller’s ( Registrar C.) proxy and voted against the recommendation. Ross Rader Registrar C– against the recommendation Steve Metalitz IPC – in favour Jordyn Buchanan – does not vote.
Tim Ruiz Registrar C– not voting. The Secretariat mentioned that no one from the the gTLD Registry Constituency was on the call . Jordyn Buchanan stated that it opened the question of whether to allow email votes. Marilyn Cade proposed that the secretariat contact the members of the combined task force who were not present on the call and ask them to vote by email and have the votes recorded. Jordyn Buchanan agreed that an email ballot be sent to those absent task force members.
Milton Mueller asked that no one change their vote.
Steve Metalitz asked for clarity on the text of the vote. Jordyn Buchanan agreed to both requests.
The text of the vote: Please vote on whether you support the recommendations contained in Section 1.1 of the preliminary report posted by Maria Farrell today. (Note: this is NOT a vote on whether you support posting the report or not, this IS a vote on whether or not you endorse the recommendations.) [ ] I support the recommendations
[ ] I do not support the recommendations
[ ] I abstain and that – I think that’s most fair as we have expanded the … who will be voting. Absent objections from anyone present, we ask everyone to send their vote. Jordyn Buchanan concluded by commenting that there appeared to be 4 constituencies in favour and one against. Next Call
Tuesday 26 April 2005 14:00 EST, 18:00 UTC 1. It was agreed that Steve Metalitz would circulate a revised draft of recommendation 2 , a Procedure for conflicts, when there are conflicts between a registrar's or registry's legal obligations under local privacy laws an their contractual obligations to ICANN
to be discussed with the task force and Senior Staff at the next meeting, 26 April 2005
2. Seek clarification from the GNSO Council on who is eligible to vote.
3. Send email votes to absent task force members Jordyn Buchanan thanked everyone for their participation.
The call ended at 19:20 UTC | 