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

[Marc Schneiders <marc@xxxxxxxxxxxxxx>]

Thomas, I think you describe the problem exactly.

ICANN does not have an army or courts of law.

Marc

On Mon, 18 Oct 2004, at 14:44 [=GMT+0200], Thomas Keller wrote:

> Hello all,
>
> I´m not absolutely clear about Steves statement. As I see it the main
> problem for a
> Registrar/Registry might stem from a situation where a local authority
> issues
> an order to close down the whois service or at least parts of it without
> allowing for
> any prior consultation. The problem is NOT that the local authority will not
> allow
> to communicate it to ICANN to begin consultation. To better reflect this
> situation
> I amended Steves wording a bit.
>
> Best,
>
> tom
>
>
>
>
> -----Ursprüngliche Nachricht-----
> Von: owner-dow1-2tf@xxxxxxxxxxxxxx [mailto:owner-dow1-2tf@xxxxxxxxxxxxxx] Im
> Auftrag von Steven J. Metalitz IIPA
> Gesendet: Dienstag, 5. Oktober 2004 02:53
> An: Marc Schneiders; Jordyn A. Buchanan
> Cc: Steven J. Metalitz IIPA; Jeff Neuman; dow1-2tf@xxxxxxxxxxxxxx
> Betreff: 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.
> > >
> > >
> >
>
>
>
>
>
>