RE: [council] Proposed WHOIS motion for 20 July 2006-- focus on agreeing to resolution first

["Marilyn Cade" <marilynscade@xxxxxxxxxxx>]

I appreciate staff starting data gathering in support of a draft resolution,
and I've actually already red the CENTR report but more importantly, I ask
that we put a 'hold' on distributing further reports to the Council until we
get agreement on the Resolution and the associated work plan, which needs to
be developed and agreed to by Council. 

One personal problem I have is that I can't absorb occasional materials, set
up personal tracking of such documents,  and still keep my sanity and
organize my time devoted to ICANN effectively. :-) May be a personal
limitation, but I'm much in need of improved systematic approaches in the
distribution and management of ICANN documents and supporting interactions.
So, my priority for Thursday's call has to be preparation for agreeing on a
resolution, and the rest of the agenda's work items.   

According, can I ask that for now, staff hold off on sending additional
background materials to the Council to read on this topic?  Perhaps you can
just continue to gather relevant materials and then we can see what is
available in documented form that is 'representative', recognizing that
there are many different approaches within the ccTLD community. 

On Thursday's call, if the Council supports,  let's get agreement on an
organized approach that can make sense, and put things into a work plan that
is documented, and therefore, can be scheduled around. Since we are
proposing a joint effort with the GAC, and I've recommended that we include
the SSAC, it would then be critical to have any materials made available
simultaneously, to all parties, once there is agreement on how we are going
to interact with the GAC and SSAC.

RESOLUTION ITSELF: 
I've posted suggested edits and would like to see that discussed by fellow
Councilors on the list, so perhaps we can get to some agreement on language.
I also asked for the Assistant General Counsel to be on our call on Thursday
and to review the resolution, and hopefully, that can move forward.

Finally, for the agenda on Thursday, as part of the discussion of the
Resolution draft, Bruce, I ask that as we discuss the draft Resolution, that
we discuss an approach to identifying 'representative ness', so then we put
the CENTR document, for instance, in the mix of materials as background.
However, we need to plan to have a dialogue with various ccTLD managers. If
you take .de for instance, many will recall that the TF did a call with
DENIC, and learned first hand from the senior managers there how they manage
and balance the privacy laws in Germany with the requirement of transparency
when one is operating a publicly accessible web site.

Marilyn Cade
BC Councilor


-----Original Message-----
From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On
Behalf Of Maria Farrell
Sent: Monday, July 17, 2006 10:24 AM
To: 'Marilyn Cade'; 'Bruce Tonkin'; 'Council GNSO'; 'Daniel Halloran';
'Denise Michel'
Subject: RE: [council] Proposed WHOIS motion for 20 July 2006-- suggested
edits and proposal for working with the ccTLD managers and SSAC

Dear all,

As an FYI before we hear from the ccTLDs, we should ensure that all Council
members have read CENTR's report on Whois, attached in this email. That
should help councillors frame any further enquiries. 

All the best, Maria 

-----Original Message-----
From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On
Behalf Of Marilyn Cade
Sent: Monday, July 17, 2006 6:59 AM
To: 'Bruce Tonkin'; 'Council GNSO'; 'Daniel Halloran'; 'Denise Michel'
Subject: RE: [council] Proposed WHOIS motion for 20 July 2006-- suggested
edits and proposal for working with the ccTLD managers and SSAC


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