RE: [council] Whois Review Team Final Report

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

Dear Jeff:

One solution may be to deliver a summary letter to the Board by August 31, 2012 
briefly explaining that the GNSO Council was unable to reach an agreement on 
which recommendations require a Policy Development Process and that individual 
comments from each Stakeholder Group and Constituency have been requested.

Based on the input we have received thus far, some believe that only a handful 
of the WHOIS RT recommendations require GNSO policy work, (which we understood 
to be the impetus for the decision to parse through recommendations per the 
Council's July 20, 2012 discussion).  However, others believe that all sixteen 
recommendations require GNSO policy work.  That is a fundamental difference, 
and as Stéphane phrased it, a "direct contradiction," which likely vitiates the 
possibility for general agreement on the matter.

I am interested in everyone's thoughts and happy to take a stab at a first 
draft of a very short letter to the Board today if we decide to take this route.

Thank you,

Brian

Brian J. Winterfeldt
bwinterfeldt@xxxxxxxxxxx<mailto:bwinterfeldt@xxxxxxxxxxx>
Steptoe

-------------------------------------------
From: Neuman, 
Jeff[SMTP:JEFF.NEUMAN@xxxxxxxxxx]<mailto:[SMTP:JEFF.NEUMAN@xxxxxxxxxx]>
Sent: Wednesday, August 29, 2012 8:57:50 AM
To: Mason Cole; Winterfeldt, Brian
Cc: council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>
Subject: RE: [council] Whois Review Team Final Report
Auto forwarded by a Rule

All,

It seems clear that we either need more time to work on this letter than August 
31st or should just agree to not send a Council letter, but leave this to the 
stakeholder groups/constituencies.  If we do decide to do the letter, we will 
need a few more weeks at least to approve on the September 13th call.

Jeffrey J. Neuman
Neustar, Inc. / Vice President, Business Affairs

From: owner-council@xxxxxxxxxxxxxx<mailto:owner-council@xxxxxxxxxxxxxx> 
[mailto:owner-council@xxxxxxxxxxxxxx]<mailto:[mailto:owner-council@xxxxxxxxxxxxxx]>
 On Behalf Of Mason Cole
Sent: Tuesday, August 28, 2012 2:10 PM
To: Winterfeldt, Brian
Cc: council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>
Subject: Re: [council] Whois Review Team Final Report

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<mailto:bwinterfeldt@xxxxxxxxxxx>
Steptoe

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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