RE: [council] Proposed WHOIS motion for 20 July 2006-- suggested edits and proposal for working with the ccTLD managers and SSAC

["Marilyn Cade" <marilynscade@xxxxxxxxxxx>]

Dear Bruce and fellow Councilors, 


I have some concerns about the wording in the draft resolution, even with
the improvements that the Chair has proposed. I have provided a redraft, and
explain below the rationale for the suggested edits. However,  I strongly
recommend that we ask for advise and assistance in drafting resolutions from
the Assistant General Counsel. I recall that when Louie was GC, we were
often supported in drafting of complex resolutions, and given the
sensitivities of where we are, I ask that we engage Dan's assistance and
counsel, including joining us on the call. 


1) I understand -- I THINK -- from the draft below that the goal is to be
consistent with ICANN's mission and
core values.  However, that is not how the language presently reads -- and
any translation of the present draft into other languages will be even more
confusing. 

We need to be careful not to put our TFS, or ourselves as the Council into
the role of interpreting the role of governments in areas such as consumer
protection, law enforcement, or privacy. 

2)  Consumer Protection should be shown as a separate category in any
drafting, along with privacy/data protection authorities/agencies, and law
enforcement. 

3) UNDERSTANDIGN WHAT CCTLDS DO IS USEFUL. Several have well established
practices and policies, but we need to ensure that we look at a group that
is  representative as we do that examination and invite the ccTLD managers
themselves, not ask the governments what the ccTLDs do. There are several
models of CcTLDS.  :-) I also prefer that we ask the ccTLD managers, and
that may mean that we go beyond the ccNSO. One good way to do this is to
repeat a session with the ccTLD managers that we did a few years ago, where
we invited ccTLD managers to a consultation and spent some considerable time
in dialogue.  We could work jointly with the CCTLD Managers, assisted by the
ccNSO  

5) I am not supportive of eliminating a consultation with the SSAC. I was
very troubled to learn that the SSAC had, on their own, after a conversation
or two, decided to get engaged in developing a solution to WHOIS. There was
no formal discussion with the Council on this topic, and apparently, they
didn't understand the need to work closely, and transparently, with the
COUNCIL, who is responsible for policy for gTLDS. I'd like to reinsert the
inclusion of the SSAC as a group that the Council will work closely with. In
my view, the Chair of the SSAC should join the Council in our discussions
with the GAC/representatives of governments. 

I HAVE MARKED UP THE DRAFT BY INSERTING NEW LANGAUGE IN CAPS, AND USING [  ]
TO SHOW DELETIONS. A DRAFT, WITHOUT MARK UP, IS PASTED HERE: 


(3) The Council will undertake a dialogue with governments, 
via the GAC, and to include the SSAC, to work towards developing a broadly 
understandable definition of the purposes for which 
the current data required in the Registrar Accreditation 
Agreement (see clause 3.4 of
http://www.icann.org/registrars/ra-agreement-17may01.htm ), as listed below,
is collected, retained and used.

The dialogue should seek to examine and understand consumer protection,
privacy/data protection and law enforcement views and perspectives and
concerns, taking into account ICANN's mission and core values.

In addition, to inform the Council's deliberations, this dialogue and
examination should include gathering information and discourse with a
representative group of ccTLD managers regarding their policies and rules of
access to ccTLD data, and relevant national laws. 


-----Original Message-----
From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On
Behalf Of Bruce Tonkin
Sent: Friday, July 14, 2006 3:53 AM
To: Council GNSO
Subject: RE: [council] Proposed WHOIS motion for 20 July 2006

 
Hello All,


> 
> (3) The Council will undertake a dialogue with governments, 
> via the GAC, AND TO INCLUDE THE SSAC, to work towards developing a broadly

> understandable definition of the [minimum] purposes for which 
> the current data required in the Registrar Accreditation 
> Agreement (see clause 3.4 of 
> http://www.icann.org/registrars/ra-agreement-17may01.htm ), as listed
> below, is collected,[ and] retained AND USED.   The dialogue should seek 
> to EXAMINE AND UNDERSTAND CONSUMER PROTECTION, [balance]
> privacy and law enforcement VIEWS AND PERSPECTIVES AND concerns, TAKING
INTO ACCOUNT [with] ICANN's mission and 
> core values.[, and [must] take into account the views of law 
> enforcement agencies,  data
protection authorities,] IN ADDITION, TO INFORM THE COUNCIL'S DELIBERATIONS,
THIS DIALOGUE AND EXAMINATION CAN INCLUDE the 
> policies and rules of access to ccTLD data, and relevant 
> national laws.

An alternative wording for the last sentence is:

The purpose of the dialogue should be to seek, to the extent reasonably
possible, A balance of privacy, CONSUMER PROTECTION, and law enforcement
PERSEPCTIVES AND concerns with ICANN's
mission and core values, and may also consider the views of data
protection authorities, the policies and rules of access to ccTLD data,
and relevant national laws.

Regards,
Bruce Tonkin