Re: [council] Whois Review Team Final Report

[Mason Cole <mcole@xxxxxxxxxx>]

Brian --

Thank you for your and the RT's continued work on Whois issues.  On behalf of 
the RrSG, our feedback is provided below, in line.  I am happy to assist with 
drafting from here if I can be of help.

Mason

On Aug 27, 2012, at 8:26 AM, Winterfeldt, Brian wrote:

> 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
> 
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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.”]] 

RRSG:  The RrSG agrees.  Our group is very appreciative of the work, but as has 
been pointed out before by council members, work output doesn't necessarily 
represent the expectation of action.

>  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.]]

RRSG:  The RrSG agrees with the RySG here.
>  
> 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.]]

RRSG:  The RrSG agrees again.  Further "all appropriate measures" is undefined 
and is unfortunately subject to differing interpretation.  The RrSG recommends 
the GNSO Council request that ICANN Compliance outline a plan to reach these 
goals, along with their expected timeframe and metrics.  These should be 
published before implementation of any new compliance initiatives meant to 
address these metrics.
>  
> 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.]]

RRSG:  The RrSG agrees again with the RySG.  The Whois RT report plainly says 
privacy / proxy accreditation should be developed in consultation with all 
interested stakeholders.  While regulation of privacy / proxy may be a laudable 
outcome, nowhere does the RAA suggest the ICANN corporation has the authority 
to make such an imposition, and it's false to say it does.  The RrSG has 
discussed privacy / proxy accreditation with ICANN staff in the course of RAA 
negotiations and our experience is that, unfortunately, like many community 
desires, it is complex, involves the interests of multiple stakeholders, and 
has cost an resource impacts on ICANN staff and the community.  It is an 
appropriate issue for a PDP and not unilateral action.
>  
> 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