WHOIS Task Forces 1 2 326 April 2005 - Minutes ATTENDEES:
GNSO Constituency representatives:
Jordyn Buchanan - Co-Chair
Registrars constituency - Paul Stahura
Registrars constituency - Tom Keller
Registrars constituency - Ross Rader
gTLD Registries constituency - David Maher
gTLD Registries constituency - Ken Stubbs
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 - Niklas Lagergren
Non Commercial Users Constituency - Milton Mueller Liaisons
At-Large Advisory Committee (ALAC) liaisons - Bret Fausett
At-Large Advisory Committee (ALAC) liaisons - Wendy Seltzer ICANN Staff:
Paul Verhoef - Vice President, Policy Development Support
Olof Nordling - Manager of Policy Development Coordination
Maria Farrell Farrell - GNSO Policy Officer
Glen de Saint Géry - GNSO Secretariat Absent:
Registrars constituency - Tim Ruiz
Internet Service and Connectivity Providers constituency - Greg Ruth
Intellectual Property Interests Constituency - Steve Metalitz - apologies
Intellectual Property Interests Constituency - Kiyoshi Tsuru
Commercial and Business Users constituency - Sarah Deutsch
Non Commercial Users Constituency - Kathy Kleiman
Non Commercial Users Constituency - Frannie Wellings
Internet Service and Connectivity Providers constituency - Maggie Mansourkia
At-Large Advisory Committee (ALAC) liaisons - Vittorio Bertolo MP3 Recording
Action point summary Jordyn Buchanan proposed the following agenda:
1. Brief update on preliminary report on the notification work item
2. Administrative matters
- Jeff Neuman's resignation as co-chair
- Timing of task force calls
3. Substance of the revised document by Steve Metalitz of recommendation 2 1. Brief update on preliminary report on the notification work item
Maria Farrell reported that the Preliminary Task force report was posted on 22 April for 20 days of public comment starting on 23 April until 12 May 2005. When the public comment is over, a summary will be made and added to the report .
Marilyn Cade suggested that the task force meet after the public comment period before the final report is sent to the Council.
Jordyn Buchanan proposed that the final report be sent to the list on 16 May, that the task force meet on 17 May and that the final report would be sent to the Council in time for the scheduled meeting on 2 June 2005. 2. Administrative matters
- Jeff Neuman's resignation as co-chair
Marilyn Cade, seconded by Tony Harris proposed that Jordyn Buchanan continue as the chair.
Jordyn Buchanan agreed to stay on as the task force chair at least until there was a re charter of the task force. - Timing of task force calls
A couple of alternatives were proposed off list.
- alternating time slots, 18:00UTC and 0800 EST
- going back to the original timeslot 11:00 EST
Ken Stubbs suggested 9:00 or 9:30 am EST
Marilyn Cade advised against alternating times but agreed to change times
Paul Stahura supported one time and asked for the call time and dial in details be sent to the task force list.
Wendy Seltzer said anything that could be done to make the calls shorter and less frequent would be appreciated.
Jordyn Buchanan suggested taking a straw poll on the list for either 9:30 am and 11:00 am EST slots. 3. Substance of the revised document by Steve Metalitz of recommendation 2
Jordyn Buchanan referred to Steve Metalitz's revised document sent to the mailing list on Sunday 24 April, 2005. and proposed dividing the discussion in two parts:
1. the substance of the re-draft
2. the merits of moving forward with the proposal at all given the points raised on the mailing list. Paul Verhoef commented on the diagram that Maria Farrell circulated and said it clarified who was involved and on what issue. It indicated a trajectory that went from left to right, starting with the policy development process resulting in ICANN staff implementing a Registrar Accreditation Agreement (RAA) with the registrars. The registrars would then translate the agreements which would result in their contracts with the registrants. He saw possible court actions or conflicts, or any government action focused on the registrar and registrants relationship, rather than what the document currently indicated, namely that the focus would be on conflicts or the risk of conflict between the registrar or the registry's legal contractual obligation to ICANN and the legal obligation with local law. His impression was that any governmental action would not necessarily be directed at the RAA but more at the relationship between the registrar and registrants. He went on to say that supposing there were a court case and the court looked at that contractual relationship between the registrar and the registrant, it was too early to say whether this would be a direct result of the RAA. First it was not clear that the court would express itself on the RAA, secondly what was missing in the process as it currently stood was that the registrars were translating the RAA into local contracts and it could well be that the problem was in the translation phase. If there were a court decision that required changing the contract between registrars and registrants, it did not necessarily impact the RAA. He queried the notion of claimant and felt that potential conflict lay in the registrar/registrant relationship and welcomed discussion.
In summary, he saw three important elements that should be distinguished and recognized in order to clarify the process:
a) the RAA,
b) the local contracts,
c) the translation, not only linguistic but also the implementation.
Jordyn Buchanan thanked Paul Verhoef and commented that it might be useful to look at the language to make clear that ICANN should have the prerogative to conclude that the cause of conflict was not necessarily the RAA. Milton Mueller agreed that an important distinction was raised with the translation of the RAA into a foreign language but he felt that if the registrar was threatened they would argue that they had to act in accordance with the RAA. The inevitable thing for them to say would be that they had no choice as the RAA, which made it possible for them to do business required disclosure, so eventually it would fall back on the RAA.
Jordyn Buchanan was of the impression that the procedure was supposed to apply when the registrar had come to the conclusion that whatever the action brought it was as a result of contents of the RAA. If law enforcement had a problem it would be likely with the registrant and at that point they would engage ICANN.
Task force members felt that if the local contract was challenged ICANN did not have to get involved.
Ken Stubbs expressed concern that in some countries a complaint could be lodged that the display of information in the Whois by a registrar or registry was in direct contravention to the privacy requirements in that country. In which case he felt that the agency might look at the registrar and registry policies and if they decided that there was a violation of the privacy laws, the registrars/registry's logical response would be that it was an ICANN requirement . Thus the contract with the registrant was not at stake.
Paul Stahura quoted section 3.7.7.3 of the RAA which referred to how registrars could licence a name that allowed for services like e-nam and e-protect and Godaddy names by proxy. He asked for clarification how there could be a conflict with national law that would prohibit some registrars from other countries from registering names when they could put the names on ID protect. If they would choose not to do that would they get a special exemption form ICANN?
Jordyn Buchanan commented that the procedure was intended for a situation where there was a reasonable alternative that could be developed. If there were a way to solve the conflict without a change to the RAA, then the registrar would be expected to do that.
Tom Keller commented that it was not certain what would happen in the future in data privacy protection and the process was designed to deal with issues when they arose.
David Fares commented that there were exceptions to the privacy right and it should be determined whether information in the Whois database was subject to the Directive provisions.
Paul Stahura asked whether if there were two registrars in the same country and a decision was given for one, would it apply to the second as well or would the second have to go through the same procedure and apply again?
Paul Verhoef assumed that if there was action by a regulator or court that applied to one particular registrar/registry operating in the same market,and it was established that the RAA was the cause of the problem, then it would be logical that it would cause problems for all registries/registrars in that country.It would not be realistic to go through the same process each time.
Milton Mueller commented that the Non Commercial Users Constituency could support the document with the following changes or modifications.
He commented that Steve Metalitz's main change was making the document a recommendation.
In seeking the middle ground, he suggested stating that there should be a policy for a procedure for the reconciliation of conflicts, but to make the specific procedure a recommendation.
He felt that it should be made clear and recognized that it was a stopgap measure until the necessary reform of Whois access was undertaken. He further suggested that the appendices be attached in order to document the existence of these conflicts in national laws.
Line 10, paragraph 1"ICANN should be able to fulfil its obligations to all elements of the ICANN community" was too broad, and suggested that the language be stricken.
Near the end of the document, regarding the criteria to disallow an exception, he suggested holding to clear guidelines deleted in Steve Metalitz ’s draft.
Marilyn Cade commented that it was better as a recommendation rather than consensus policy. She also cautioned about making sure that attached supporting documents were current or up to date.
Ross Rader added that if it were indeed a stop gap measure it should be mandatory to flag that and add specific time periods, one year, 6 months, 5 years, etc. He was not clear how a registry or registrar
could deal with local variations on a global basis.
Paul Verhoef asked for clarification on‘claimants’. It was suggested that the legal questions could be reviewed by John Jeffrey. Jordyn Buchanan proposed that some of the concerns raised should be discussed further on the list, as should Tom Keller and Milton Mueller's proposal of making it a policy hybrid recommendation. Jordyn Buchanan asked for comments on:
applicability of the recommendation to the terms of reference
Ross Rader commented that he felt the time was not being usefully allocated as he did not see such issues coming up and that they were rather boundary cases. He felt that the focus should be on the big rock and try and really move things forward.
Milton Mueller commented that those who support the measure would be happy to abandon if there were even a modest reform on tiered access.
Tom Keller commented that it was initially started in task force 2 because after observing the privacy laws it was felt there might be a necessity to have such a recommendation, and now it was being questioned once again.
Wendy Seltzer felt that for three years there had been no gain for the registrant in terms of privacy and she felt it was necessary to give the registrars a procedure when facing questions with national laws so that registrants would have more privacy options. Next Call 3 May 2005
Discuss accuracy.
Bruce Tonkin ’s summary of the Cape Town dialogue Jordyn Buchanan thanked everyone for their participation.
The call ended at 20:22 UTC | 