WHOIS Task Forces 1 and 2 Teleconference 26 October, 2004 - Minutes ATTENDEES:
GNSO Constituency representatives:
gTLD Registries constituency: - Jeff Neuman - Co-Chair
Registrars constituency - Jordyn Buchanan - Co-Chair
gTLD Registries constituency - David Maher
Non Commercial Users Constituency - Milton Mueller
Non Commercial Users Constituency - Kathy Kleiman
Commercial and Business Users constituency - Marilyn Cade
Internet Service and Connectivity Providers constituency: - Antonio Harris
Internet Service and Connectivity Providers constituency - Maggie Mansourkia
Registrars constituency - Paul Stahura
Registrars constituency - Tom Keller
Intellectual Property Interests Constituency - Steve Metalitz
Liaisons:
At-Large Advisory Committee (ALAC) liaisons - Thomas Roessler
GNSO Secretariat: Glen de Saint Géry
Absent:
ICANN Staff Manager: Barbara Roseman - absent - apologies
Commercial and Business Users constituency - David Fares
Amadeu Abril l Abril
Intellectual Property Interests Constituency - Jeremy Banks
Intellectual Property Interests Constituency - Niklas Lagergren - absent - apologies
Non Commercial Users Constituency - Marc Schneiders - absent, apologies
At-Large Advisory Committee (ALAC) liaisons - Wendy Seltzer
MP3 recording
Agenda
Discuss step by step for conflict situations
Jordyn Buchanan in summary of the call on 19 October, referred to Barbara Roseman's posting
" - I've looked at the way the Transfers and Deletes policy proposals were made and they both had provisions for an Implementation Committee to proceed with work upon adoption of the policy by Council.
That is, they did not hold work on the implementation recommendations until the Board approved the policy, but began work as soon as the Council forwarded the policy to the Board.
The key characteristics of these Implementation proposals was that the scope of work was very clearly spelled out in the recommendation, and there were efforts to determine what was likely to need to be changed in the current system to allow for implementation of the policy.
The Implementation Committees were given very specific direction on what was within their purview.
Steve Metalitz referred to the Draft Procedure for Conflicts: Step-by-step.
Version 1.1, 10/4/04
The following procedure should be followed by any registrar (or, in the thick registry environment, any registry) that believes that it is legally prevented, by local mandatory privacy law or regulations, from fully complying with applicable provisions of its ICANN contract regarding the collection, display and distribution of personally identifiable data via Whois. This procedure assumes continued compliance with contractual obligations throughout the process until the issue is resolved.
Step One: Notification
The registrar notifies the ICANN General Counsel promptly once it determines that the condition described above applies. The notification should be in writing and should include at a minimum the following: * A detailed summary of the problem.
* Contact information for the responsible official of the registrar for resolving the problem.
* The text of the applicable law or regulations which are asserted to be preventing full compliance with contractual obligations.
* Citation to the specific provisions of the RAA (or other applicable contract) which the registrar believes itself to be prevented from complying with.
* Documentation of the problem, including but not limited to:
o Legal opinions, if any, obtained by the registrar bearing on the claimed conflict.
o Relevant correspondence with local/national enforcement authorities bearing on the claimed conflict.
If the problem arises from actions of the local/national enforcement authority, the notification should include contact details for the relevant officials of that authority, and the registrar's statement 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. Similarly, if the problem arises from a formal complaint or contact by a local/national law enforcement authority which cannot be communicated to ICANN under provisions of local/national law, the registrar will use appropriate available channels to seek relief from such a secrecy obligation, and will provide a notification conforming as closely as possible to what is outlined above as soon as it is able to do so.
Step Two: Consultation
Promptly upon receipt and review of notification (which may include dialogue with the registrar), the General Counsel shall begin a process of consultation with the registrar and, if relevant and available, with the local/national enforcement authorities. The goal of the consultation process shall be to seek to resolve the problem in a manner most conducive to the stability and uniformity of the Whois system and that preserves the ability of the registrar to comply with its contractual obligations to the greatest extent possible.
The General Counsel need not undertake this consultation process if (s)he determines, upon review of the notification, that (a) the notification does not establish that the registrar is legally prevented from full compliance due to local/national mandatory legal or regulatory requirements; or (b) the matter is not ripe for action because there is a reasonable likelihood that the threatened conflict can be avoided without the consultation process. Either of these determinations shall be communicated to the registrar promptly and in writing.
Step Three:
Reporting The General Counsel shall report to the Board as follows:
A. Promptly upon beginning the consultation process described in Step Two, or upon making either of the determinations described in the second paragraph of Step Two. This report shall briefly summarize the parties and issues involved.
B. Every 30 days during the consultation process, unless concluded more quickly. This report shall summarize the status of the consultation process.
C. Promptly upon the conclusion of the consultation process. This report shall include:
i. Summary of the law or regulation involved in the conflict.
ii. Specification of the part of the registrar's contractual obligation with which it is claimed that the law or regulation prevents compliance.
iii. Recommendation of how the conflict should be resolved. If this resolution includes ICANN's forbearance from full enforcement of compliance with one or more identified contractual provisions, the report shall include a detailed description of why such forbearance is recommended and of what other steps, if any, ought to be taken to promote the stability and uniformity of the Whois system.
The reports described in A and B would not normally be made public. The report in C would normally be made public, with whatever redactions are necessary to preserve the confidentiality of proprietary information.
Step Four:
Resolution The Board shall consider and take appropriate action on the recommendations contained in Report C above as soon as practicable. Actions could include, but are not limited to:
* Scheduling a public comment period on the report.
* Referring the report to GNSO for its review and comment by a date certain.
* Approving the report's recommendations, with or without modifications.
Step Five:
Public Notice The Board's resolution of the issue 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 in its action on Report C, 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.
Tom Keller commented that the main problem for a Registrar/Registry might stem from a situation where a local authority issued an order to close down the Whois service or at least parts of it without allowing for any prior consultation. The problem was not that the local authority would not allow to communicate it to ICANN to begin consultation.
Milton Mueller referred to his modifications and commented:
"The basic difference is that there are two different procedures,
one (A) for when governments or civil litigation initiates a modification, and
one (B) for when registrars initiate a modification of the contractual obligations in order to proactively avoid potential problems.
The (B) procedure is exactly the same as Steve's proposal; the (A) procedure gives registrars more flexibility to comply with and cooperate with territorial law and notify ICANN of the results.
Milton Mueller's modification:
DRAFT PROCEDURE FOR CONFLICTS: Step-by-Step
Whois Task Force 2's prior work investigating the discrepancies between ICANN's current contracts and national or local privacy laws 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)
Whois Task Force 2 has already 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."
The following procedures should be followed by any registrar (or, in the thick registry environment, any registry) that believes that it is legally prevented, by local mandatory privacy law or regulations, from fully complying with applicable provisions of its ICANN contract regarding the collection, display and distribution of personally identifiable data via Whois.
The procedures to be followed differ depending on where the initiative for the change comes from:
� If a local or national government initiates an investigation, and/or brings an action against the registry or registrar regarding the conflict between ICANN contractual obligations and the contracted business's obligations under territorial privacy laws, the procedure to be followed is outlined in section A.
� If the ICANN-accredited registrar or ICANN-contracted registry seeks to amend its contract on its own initiative to proactively avoid the emergence of a conflict between territorial privacy laws and its obligations under ICANN contracts, the procedure to be followed is outlined in section B.
A. Government-initiated investigations and contacts
If governments initiate an investigation, or registrars are the subject of civil litigation or regulatory proceedings in a governmental jurisdiction, Registrars and Registries must be allowed to participate in and respond to investigations in the manner and course deemed best by their counsel, and they must be allowed to modify their practices to comply with territorial laws. They must however take the following steps:
Step One:
Notification of Initiation of Action
If Registrar/Registry counsel deems it in the best interest of its client, the Registrar/Registry may notify ICANN's General Counsel of the action and provide it with the following information: � Description of the nature of the action (e.g., investigation, litigation, sanctions) � Contact information for the responsible official of the registrar for resolving the problem. � Contact information for the responsible territorial government agency
Step Two: Notification of Resolution
When the Registrar/Registry and the territorial authorities resolve the conflict, within 30 days ICANN's General Counsel must be notified and provided the following information:
� The text of the applicable law or regulations deemed by the local government to prevent full compliance with contractual obligations.
� Citation to the specific provisions of the RAA (or other applicable contract) which the registrar is prevented from complying with, or for which its compliance obligations have been modified in some part.
This information will be made public as per Step Four below. Of course, should the order have some constraint regarding publicity or nondisclosure (e.g., revocation of WHOIS data regarding domain names being used for websites designed to monitor and track terrorist activity and communication online), the Registrar/Registry will share with ICANN's General Counsel as much information as it may legally share and together they will decide the best course of action regarding publicity.
Step Three: Reporting The General Counsel shall report to the Board as follows:
� The text of the applicable law or regulations deemed by the local government to prevent full compliance with contractual obligations.
� Citation to the specific provisions of the RAA (or other applicable contract) which the registrar is prevented from complying with, or for which its compliance obligations have been modified in part.
Step Four: Public Notice
� A summary of the decision regarding the registrar/registry shall be archived on the ICANN website within 30 days of resolution for public review and research.
B. Registrar/Registry-initiated changes
If a Registrar or thick registry wishes to initiate changes on its own in order to proactively avoid legal liability or penalties, it must follow these steps:
Step One: Notification
The registrar notifies the ICANN General Counsel promptly once it determines that the condition described above applies. The notification should be in writing and should include at a minimum the following:
� A detailed summary of the problem.
� Contact information for the responsible official of the registrar for resolving the problem.
� The text of the applicable law or regulations which are asserted to be preventing full compliance with contractual obligations.
� Citation to the specific provisions of the RAA (or other applicable contract) which the registrar believes itself to be prevented from complying with.
� Documentation of the problem, including but not limited to:
o Legal opinions, if any, obtained by the registrar bearing on the claimed conflict.
o Relevant correspondence with local/national enforcement authorities bearing on the claimed conflict.
If the problem arises from actions of the local/national enforcement authority, the notification should include contact details for the relevant officials of that authority, and the registrar's statement 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.
Similarly, if the problem arises from a formal complaint or contact by a local/national law enforcement authority which cannot be communicated to ICANN under provisions of local/national law, the registrar will use appropriate available channels to seek relief from such a secrecy obligation, and will provide a notification conforming as closely as possible to what is outlined above as soon as it is able to do so.
Step Two: Consultation
Promptly upon receipt and review of notification (which may include dialogue with the registrar), the General Counsel shall begin a process of consultation with the registrar and, if relevant and available, with the local/national enforcement authorities. The goal of the consultation process shall be to seek to resolve the problem in a manner most conducive to the stability and uniformity of the Whois system and that preserves the ability of the registrar to comply with its contractual obligations to the greatest extent possible.
The General Counsel need not undertake this consultation process if (s)he determines, upon review of the notification, that (a) the notification does not establish that the registrar is legally prevented from full compliance due to local/national mandatory legal or regulatory requirements; or (b) the matter is not ripe for action because there is a reasonable likelihood that the threatened conflict can be avoided without the consultation process. Either of these determinations shall be communicated to the registrar promptly and in writing.
Step Three: Reporting
The General Counsel shall report to the Board as follows:
A. Promptly upon beginning the consultation process described in Step Two, or upon making either of the determinations described in the second paragraph of Step Two. This report shall briefly summarize the parties and issues involved.
B. Every 30 days during the consultation process, unless concluded more quickly. This report shall summarize the status of the consultation process.
C. Promptly upon the conclusion of the consultation process. This report shall include:
i. Summary of the law or regulation involved in the conflict.
ii. Specification of the part of the registrar's contractual obligation with which it is claimed that the law or regulation prevents compliance.
iii. Recommendation of how the conflict should be resolved. If this resolution includes ICANN's forbearance from full enforcement of compliance with one or more identified contractual provisions, the report shall include a detailed description of why such forbearance is recommended and of what other steps, if any, ought to be taken to promote the stability and uniformity of the Whois system.
The reports described in A and B would not normally be made public. The report in C would normally be made public, with whatever redactions are necessary to preserve the confidentiality of proprietary information.
Step Four: Resolution
The Board shall consider and take appropriate action on the recommendations contained in Report C above as soon as practicable. Actions could include, but are not limited to:
� Scheduling a public comment period on the report.
� Referring the report to GNSO for its review and comment by a date certain.
� Approving the report's recommendations, with or without modifications.
Step Five: Public Notice
The Board's resolution of the issue 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 in its action on Report C, 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
Milton Mueller's proposal suggested two tracks. B track was meant for Registrars and registries to initiate changes because they were concerned about their exposure. The point of the two tracks was based on who initiated the process.
Jeff Neuman summarized the task force discussion on the two proposals:
- There was agreement that there could be two tracks, A and B.
- The presumption was that track B would be most commonly taken
- Only in rare circumstances, where compliance was ordered or where a registrar was ordered to take a particular action by a Governmental body, would track A be followed.
- There was agreement on how track B should be operated but some minor revisions could be foreseen
- Agreement to define what goes into track A
- Even if track A were taken and the registrar chose to take an action and notified ICANN and attempted to bring ICANN into the proceeding after the action was taken by the Registry or the Registrar to comply, was valued.
Steve Metalitz commented that flexibility was needed in the whole process.
Jordyn Bucahan added that at any given point in time, the process may need to be short circuited.
Milton Mueller commented that the key issue was that registrars should have the ability to negotiate compliance of local law on their own, they could not have ICANN doing it for them and could not be subject to long ICANN procedures.
Further Action:
Jeff Neuman suggested Milton Mueller and Steve Metalitz revised their draft proposals so as to reach consensus
- suggested finishing topic on line
- Providing Status Report to the Council for Cape Town meeting
Jeff Neuman and Jordyn Buchanan thanked everyone for their presence and participation.
The call ended at 12:15 EST, 18:15 CET
Next Call: 4 November 2004
see: GNSO calendar
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