[council] Constituency statements due 21 July on Recommendation 2

["GNSO.SECRETARIAT@xxxxxxxxxxxxxx" <gnso.secretariat@xxxxxxxxxxxxxx>]

[To: council[at]gnso.icann.org;liaison6c[at]gnso.icann.org]
[To: gnso-dow123[at]gnso.icann.org]

Dear All,

REMINDER:
Constituency statements are required by 21 JULY 2005.
http://www.gnso.icann.org/calendar/#july

Constituency responses are required on WHOIS COMBINED TASK FORCE 
Consensus Policy/Advice Recommendation 2 on conflicts between national 
privacy laws and registries' or registrars' contractual obligations to 
ICANN. (see the text below)
Please send the constituency statements to:
gnso-dow123[at]gnso.icann.org

Please take note of the ICANN bylaws detailing the GNSO policy
development process which outline the essential elements of a
constituency statement. These requirements are included at the bottom of
this email.

Kind regards,
Glen

WHOIS COMBINED TASK FORCE
Policy/Advice Recommendation 2 on conflicts between national privacy 
laws and registries' or registrars' contractual obligations to ICANN.
Preamble:

Task Force 2 spent over a year collecting data and working on the 
conflict between a registrar/registry’s legal obligations under privacy 
laws and their contractual obligations to ICANN.  Its report included 
the statement:
“The Task Force believes that there is 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,
http://www.gnso.icann.org/issues/whois-privacy/Whois-tf2-preliminary.html.

By vote of the Task Force, now merged, on May 24, 2005, the work of Task
Force 2 is hereby divided into a recommendation for “consensus policy”
accompanied by “well-developed advice for a procedure.”

I.  Task Force Policy for WHOIS Conflicts with Privacy Law

CONSENSUS POLICY RECOMMENDATION

In order to facilitate reconciliation of any conflicts between
local/national mandatory privacy laws or regulations and applicable
provisions of the ICANN contract regarding the collection, display and
distribution of personal data via Whois, ICANN should:

1.  Develop and publicly document a procedure for dealing with the 
situation in which a registrar or registry can credibly demonstrate that 
it is legally prevented by local/national privacy laws or regulations 
from fully complying with applicable provisions of its ICANN contract 
regarding the collection, display and distribution of personal data via 
WHOIS.
2.  Create goals for the procedure which 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
ICANN’s Mission, applicable Core Values and the stability and uniformity 
of the Whois system;
    c.  Providing a mechanism for the recognition, if appropriate, in
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.

II.  Text of Recommended Procedure

WELL-DEVELOPED ADVICE ON A PROCEDURE FOR HANDLING WHOIS CONFLICTS
  WITH PRIVACY LAW

Based on extensive research and negotiation among Task Force 2 together 
with the merged Task Force and ICANN staff, the following procedure for 
handling the policy recommendation set out in Section I above is set out 
as a Recommended Step-by-Step Procedure for Resolution of WHOIS 
Conflicts with Privacy Law.  We encourage ICANN staff to use this 
Recommended Procedure as a starting point for developing the procedure 
called for in the Consensus Policy Recommendation above.
Step One: Notification of Initiation of Action

Once receiving notification of an investigation, litigation, regulatory
proceeding or other government or civil action that might affect its
compliance with the provisions of the RAA or other contractual agreement
with ICANN dealing with the collection, display or distribution of
personally identifiable data via Whois (“Whois Proceeding”), a 
Registrar/ Registry must within thirty (30) days provide ICANN’s General 
Counsel (or other staff member as designated by ICANN)  with the 
following information:
•    Summary description of the nature and status of the action (e.g.,
inquiry, investigation, litigation, threat of sanctions, etc.)
•    Contact information for the responsible official of the
registrar/registry for resolving the problem.
•    Contact information for the responsible territorial government
agency or other claimant and a statement from the registrar/registry 
authorizing ICANN to communicate with those officials or claimants on 
the matter. If the registrar/registry is prevented by applicable law 
from granting such authorization, the notification should document this.
•    The text of the applicable law or regulations upon which the local
government or other claimant is basing its action or investigation, if 
such information has been indicated by the government or other claimant.
Meeting the notification requirement permits Registrars/Registries to
participate in investigations and respond to court orders, regulations, 
or enforcement authorities in a manner and course deemed best by their 
counsel.
Depending on the specific circumstances of the Whois Proceeding, the
Registrar/Registry may request that ICANN keep all correspondence 
between the parties confidential pending the outcome of the Whois 
Proceeding.  It is recommended that ICANN respond favorably to such 
requests to the extent that they can be accommodated with other legal 
responsibilities and basic principles of transparency applicable to 
ICANN operations.
Step Two: Consultation

Unless impractical under the circumstances, we recommend that the ICANN
General Counsel, upon receipt and review of the notification and, where
appropriate, dialogue with the registrar/registry, consider beginning a
process of consultation with the local/national enforcement authorities 
or other claimant together with the registrar/registry.  The goal of the
consultation process should be to seek to resolve the problem in a 
manner that preserves the ability of the registrar/registry to comply 
with its contractual obligations to the greatest extent possible.
If the Whois proceeding  ends without requiring any changes and/or the
required changes in registrar/registry practice do not, in the opinion 
of the General Counsel, constitute a deviation from the R.A.A. or other
contractual obligation , then the General Counsel and the 
registrar/registry need to take no further action.
If the registrar/registry is required by local law enforcement 
authorities or a court to make changes in its practices affecting 
compliance with Whois-related  contractual obligations before any 
consultation process can occur, the registrar/registry shall promptly 
notify the General Counsel of the changes made and the law/regulation
upon which the action was based.   The Registrar/Registry may request
that ICANN keep all correspondence between the parties confidential
pending the outcome of the Whois Proceeding.   It is recommended that
ICANN respond favorably to such requests to the extent that they can be
accommodated with other legal responsibilities and basic principles of
transparency applicable to ICANN operations.

Step Three:  General Counsel analysis and recommendation

If the local/national government requires changes (whether before, 
during or after the consultation process described above)  that, in the 
opinion of the General Counsel, prevent full compliance with contractual 
WHOIS obligations, ICANN should consider the following alternative to 
the normal enforcement procedure.  Under this alternative, ICANN would 
refrain, on a provisional basis, from taking enforcement action against 
the registrar/registry for non-compliance, while the General Counsel 
prepares a report and recommendation and submits it to the ICANN Board 
for a decision. Such a report may contain:
i.    A summary of the law or regulation involved in the conflict;

ii.    Specification of the part of the registry or registrar’s contractual

WHOIS obligations with which full compliance if being prevented;
iii.    Summary of the consultation process if any under step two; and

iv.    Recommendation of how the issue should be resolved, which may
include whether ICANN should provide an exception for the 
registrar/registry from one or more identified WHOIS contractual 
provisions. The report should include a detailed justification of its 
recommendation, including the anticipated impact on the operational 
stability, reliability, security, or global interoperability of the 
Internet's unique identifier systems if the recommendation were to be 
approved or denied .
The registrar/registry should be provided a copy of the report and 
provided a reasonable opportunity to comment on it to the Board.  The
Registrar/Registry may request that ICANN keep such report confidential
prior to any resolution of the Board.  It is recommended that ICANN 
respond favorably to such requests to the extent that they can be 
accommodated with other legal responsibilities and basic principles of 
transparency applicable to ICANN operations.
Step Four:  Resolution

Keeping in the mind the anticipated impact on the operational stability,
reliability, security, or global interoperability of the Internet's 
unique identifier systems, the Board should consider and take 
appropriate action on the recommendations contained in the General 
Counsel’s report as soon as practicable.  Actions could include, but are 
not limited to:
•    Approving or rejecting the report’s recommendations, with or 
without modifications;
•    Scheduling a public comment period on the report; or
•    Referring the report to GNSO for its review and comment by a date
certain.

  Step Five:  Public Notice

    The Board’s resolution of the issue, together with the General
Counsel’s report, should ordinarily be made public, along with the 
reasons for it, and be archived on a public website (along with other 
related materials) for future research. Prior to release of such 
information to the public, the Registry/Registrar may request that 
certain information (including, but not limited to, communications 
between the Registry/Registrar and ICANN, or other 
privileged/confidential information) be redacted from the public notice.
  In the event that such redactions make it difficult to convey to the
public the nature of the actions being taken by the Registry/Registrar, 
the General Counsel should work with the Registry/Registrar on an 
appropriate notice to the public describing the actions being taken and 
the justification for such actions.
Unless the Board decides otherwise, 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, ICANN should 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.

********************************************************************
The constituency statements should be consistent with the ICANN bylaws
detailing the   GNSO Policy-Development Process.
http://www.icann.org/general/archive-bylaws/bylaws-08apr05.htm#AnnexA

"Section 7, d. Collection of Information.
1. Constituency Statements.
The Representatives will each be responsible for soliciting the position 
of their constituencies, at a minimum, and other comments as each
Representative deems appropriate, regarding the issue under consideration.
This position and other comments, as applicable, should be submitted in 
a formal statement to the task force chair (each, a "Constituency 
Statement") within thirty-five (35) calendar days after initiation of 
the PDP. Every Constituency Statement shall include at least the following:
(i) If a Supermajority Vote was reached, a clear statement of the
constituency's position on the issue;

(ii) If a Supermajority Vote was not reached, a clear statement of all
positions espoused by constituency members;

(iii) A clear statement of how the constituency arrived at its position(s).
Specifically, the statement should detail specific constituency 
meetings, teleconferences, or other means of deliberating an issue, and 
a list of all members who participated or otherwise submitted their views;
(iv) An analysis of how the issue would affect the constituency, 
including any financial impact on the constituency; and
(v) An analysis of the period of time that would likely be necessary to
implement the policy."

--
Glen de Saint Géry
GNSO Secretariat - ICANN
gnso.secretariat[at]gnso.icann.org
http://gnso.icann.org