RE: [dow1-2tf] Expanded "step by step" procedure re conflicts with local law

["Cade,Marilyn S - LGCRP" <mcade@xxxxxxx>]

So far, when we have seen these kinds of discussions, I  believe that the 
registrar has been given a chance to work with their government. I am not aware 
of instances where the registrar is prohibited from disclosing their compliance 
situation/inquiry from national government. However, perhaps those exist. Is 
ICANN aware of any of these? Have they received such information? Does the 
registrar constituency have such information that they can aggregate and pass 
along?

Policy development really can't work off of speculation, but we can be 
proactively seeking to understand reality, as faced by real registrars in real 
situations. 


Jordyn, I think that there can be support for how a registrar deals with 
conflicts with national law, but there has to be a process by which the 
registrar notes that as the reason for non compliance. Otherwise, we would have 
"gaming possibilities
". 

I will not be available for tomorrow's call. I am at the ITU's World Telecom 
Standardization  Assembly (WTSA) as a delegate, and will not have conf. call 
access. IF things change, I will try to dial in..... but think it unlikely. I 
have emailed David Fares to remind him of the call. He is just returned from 
vacation and starting his new job. I hope he can join. 

My apologies if we are both absent. It is not for lack of interest. However, 
the ITU conference is making it unlikely I can be available, even though I am 
online and can follow and do work.

202-360-1196 c
mcade@xxxxxxx


-----Original Message-----
From: Steven J. Metalitz IIPA [mailto:metalitz@xxxxxxxx]
Sent: Monday, October 04, 2004 8:53 PM
To: Marc Schneiders; Jordyn A. Buchanan
Cc: Steven J. Metalitz IIPA; Jeff Neuman; dow1-2tf@xxxxxxxxxxxxxx
Subject: RE: [dow1-2tf] Expanded "step by step" procedure re conflicts
with local law 


 The following provision of the draft is intended to address the
situation Marc envisions:

"Similarly, if the problem arises from a formal complaint or contact by
a local/national law enforcement authority which cannot be communicated
to ICANN under provisions of local/national law, the registrar will use
appropriate available channels to seek relief from such a secrecy
obligation, and will provide a notification conforming as closely as
possible to what is outlined above as soon as it is able to do so."

I think this covers the case in which a registrar is unable to
communicate with ICANN and seek to invoke the consultation process
before the law enforcement authority acts "to close down operations of
the registrar."  Clearly the preferred course would be for registrars to
notify ICANN as early as possible of the asserted conflict.  If local
law prevents this, then the paragraph quoted above would apply.  But if
local law does not forbid disclosure of the enforcement action, the
procedure should give registrars an incentive not to wait until it is
too late for the consultation process to work.  

Steve Metalitz  

  



-----Original Message-----
From: marc@xxxxxxxxxxx [mailto:marc@xxxxxxxxxxx] On Behalf Of Marc
Schneiders
Sent: Monday, October 04, 2004 6:32 PM
To: Jordyn A. Buchanan
Cc: Steven J. Metalitz IIPA; Jeff Neuman; dow1-2tf@xxxxxxxxxxxxxx
Subject: Re: [dow1-2tf] Expanded "step by step" procedure re conflicts
with local law 

Thanks, Jordyn. Perhaps we could include this language in the proposed
text?

On Mon, 4 Oct 2004, at 18:14 [=GMT-0400], Jordyn A. Buchanan wrote:

> Marc:
>
> The original language from TF #2 did provide an exception in cases in 
> which a registrar was forced to take immediate action by a regulator.
>
> I believe that the intent of the task force (although it is not 
> spelled out in detail in the agreed upon language, and I am doing a 
> bit of interpretation here) was that when a situation arises in which 
> there is a demonstrated conflict between ICANN contract requirements 
> on WHOIS and national law, the registrar should not be penalized by 
> ICANN as a result of complying with national law.
>
> Jordyn
>
> On Oct 4, 2004, at 6:07 PM, Marc Schneiders wrote:
>
> > On Mon, 4 Oct 2004, at 12:16 [=GMT-0400], Steven J. Metalitz IIPA
> > wrote:
> >
> >> This procedure assumes continued
> >> compliance with contractual obligations throughout the process 
> >> until the issue is resolved.
> >
> > Unless the national law isn't patient enough and will close down 
> > operations of a registrar...
> >
> > Whois would go out of the air then anyway. Which would not bother me

> > that much. But the domains might also stop functioning in as far as 
> > the registrar is also involved in the DNS.  That would be a pity. 
> > And not good for the stability of the internet etc.
> >
> > I think we need provisions for situations where national law isn't 
> > patient enough to wait for the periods specified in the proposal.
> >
> > ICANN doesn't have an army.
> >
> >
>