[council] Whois Review Team Final Report

["Winterfeldt, Brian" <bwinterfeldt@xxxxxxxxxxx>]

Dear all:

I hereby forward to the full Council the latest draft letter to the ICANN Board 
regarding the WHOIS Review Team Final Report, wherein we attempt to flag 
potential ambiguous recommendations and assist the Board in determining which 
Review Team recommendations are matters of GNSO policy development versus which 
recommendations are matters of staff implementation or negotiation with 
contracted parties.

Achieving full consensus of the Council may prove difficult given the 
divergence of viewpoints expressed in our small group, which we hope to have 
accurately encapsulated in our draft below.  The proposed text below was 
supported by myself and Wolf-Ulrich, and we have also included comments from 
Jeff and Wendy in red font within brackets.

I would like to thank Jeff, Wendy, Wolf-Ulrich and Thomas for their input and 
assistance in this matter, and I look forward to working with everyone toward 
finalizing a letter for submission to the ICANN Board by the August 31, 2012 
deadline.

Thank you,

Brian

Brian J. Winterfeldt
Partner
bwinterfeldt@xxxxxxxxxxx<mailto:bwinterfeldt@xxxxxxxxxxx>
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_________________________________________________________


TO:  ICANN Board
FROM:  Chair of the GNSO Council
VIA:  GNSO Liaison to the ICANN Board

I hereby forward to you the written public input of the GNSO Council on the 
WHOIS Review Team Final Report pursuant to your resolution (2012.06.23.26) from 
the meeting in Prague, Czech Republic, requesting that the GNSO provide such 
input by 31 August 2012.

As you are aware, the WHOIS Review Team’s scope, guided by the Affirmation of 
Commitments, was to review the extent to which ICANN’s WHOIS policy and its 
implementation are effective, meet legitimate needs of law enforcement and 
promote consumer trust.  To this end, the Final Report, which issued on 11 May 
2012, contained sixteen recommendations.

During its meeting on 20 July 2012, the GNSO Council considered the substance 
of the WHOIS Review Team Final Report, as well as how to respond to the Board’s 
request.  The GNSO Council recognizes, given the hard work and public input 
already incorporated into the Final Report, that there is a reasonable 
expectation by the Review Team for its recommendations be implemented as soon 
as practicable. [[The NCSG disagrees.  Please cut this sentence.  The Review 
Team can make recommendations but it can’t expect implementation simply by dint 
of its hard work.  The NCSG has previously stated that any implementation 
requires GNSO policy development. “The NCSG believes all recommendations 
require GNSO Policy Development.”]]  However, the GNSO Council also recognizes 
that a small number of the Review Team’s recommendations may require future 
GNSO policy development.  Accordingly, the written input this letter is 
intended to clarify potential ambiguity and assist the Board in determining 
which Review Team recommendations are matters of GNSO policy development versus 
which recommendations are matters of staff implementation or negotiation with 
contracted parties.

Recommendation Two - Single WHOIS Policy.  The Review Team’s second 
recommendation calls for the Board to oversee creation of a single WHOIS policy 
document, and reference it in agreements with Contracted Parties, as well as 
clearly document the current gTLD WHOIS policy as set out in the gTLD Registry 
& Registrar contracts & Consensus Policies and Procedure.

The GNSO Council notes that this recommendation carefully avoids the phrase 
“policy development.”  It asks for documentation of the existing policy set 
forth in the contracts and consensus policies.  It does not ask for the GNSO 
council to review or develop any policies.  Accordingly, the GNSO Council 
believes that this is not a recommendation for further GNSO policy development.

[[The RySG agrees that if this recommendation means creation of a single policy 
document that just summarizes all current relevant WHOIS policies, then no PDP 
is required.  However, if this recommendation requires the creation of a new 
single policy, then a PDP should be required.]]

Recommendation Three - Outreach.  The Review Team’s third recommendation calls 
for ICANN to ensure that WHOIS policy issues are accompanied by cross-community 
outreach, including outreach to the communities outside of ICANN with a 
specific interest in the issues, and an ongoing program for consumer awareness.

The GNSO Council views this recommendation as a modifier, or supplement, to a 
number of other recommendations in the Final Report.  Accordingly, the GNSO 
Council believes that this is not a recommendation necessitating GNSO policy 
development.


6.     [[Recommendation Six - Data Accuracy.  The sixth recommendation of the 
Review Team instructs that ICANN should take appropriate measures to reduce the 
number of WHOIS registrations that fall into the accuracy groups “Substantial 
Failure” and “Full Failure” (as defined by the NORC Data Accuracy Study) by 50% 
within 12 months and 50% again over the following 12 months.

The RySG believes that the recommendation to undertake “appropriate measures” 
to reduce the number of WHOIS registrations that fall into these accuracy 
groups may require a PDP depending on what these measures are.]]



Recommendation Ten - Data Access – Privacy and Proxy Services.  The Review 
Team’s tenth recommendation essentially calls for ICANN to initiate processes 
to regulate and oversee privacy and proxy service providers; processes should 
be developed in consultation with all interested stakeholders and note relevant 
GNSO studies; a possible approach to achieving this would be to establish an 
accreditation system for all proxy/privacy service providers, and consider the 
merits (if any) of establishing or maintaining a distinction between privacy 
and proxy services; goal is to provide clear, consistent and enforceable 
requirements for the operation of these services consistent with national laws, 
and to strike an appropriate balance between stakeholders with competing but 
legitimate interests—including privacy, data protection, law enforcement, the 
industry around law enforcement and the human rights community.

The GNSO Council acknowledges that this recommendation can be read to describe 
a GNSO policy development process.  However, in recognition of the 
contemporaneous negotiation of the RAA, the GNSO Council recommends 
that—notwithstanding any GNSO policy development process on this 
recommendation—ICANN retain its authority to unilaterally impose regulation of 
privacy and proxy services pursuant to the RAA in the event that no consensus 
policy has been reached in a reasonably time frame, such as twelve months from 
31 August 2012.

[[The RySG strongly believes that ICANN can only initiate a process to regulate 
and oversee privacy and proxy service providers through a PDP process.  The 
RySG believes that the entirety of the Review Team’s tenth recommendation does 
in fact require a PDP without any artificial time constraints imposed.]]

Recommendation Twelve - Internationalized Domain Names.  The Review Team’s 
twelfth recommendation calls for ICANN to task a working group within six 
months of publication of their report, to determine appropriate 
internationalized domain name registration data requirements and evaluate 
available solutions; at a minimum, the data requirements should apply to all 
new gTLDs, and the working group should consider ways to encourage consistency 
of approach across the gTLD and (on a voluntary basis) ccTLD space; the working 
group should report within a year.

The GNSO Council acknowledges that the work of the Internationalized 
Registration Data Working Group “IRD WG” is already underway in regard to this 
recommendation.

The GNSO Council welcomes comments from the Board concerning this input.

Stéphane Van Gelder
Chair, GNSO Council