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RE: [dow1-2tf] Re-Revised Step by Step Procedures

  • To: "'Steven J. Metalitz IIPA'" <metalitz@xxxxxxxx>, dow1-2tf@xxxxxxxxxxxxxx
  • Subject: RE: [dow1-2tf] Re-Revised Step by Step Procedures
  • From: "Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx>
  • Date: Tue, 9 Nov 2004 09:14:46 -0500
  • Sender: owner-dow1-2tf@xxxxxxxxxxxxxx

I have made some comments to the draft as the lawyer side of me has taken
over :)  My comments mostly relate to preserving confidentiality for the
registry/registrar, especially the attorney-client privilege in
jurisdictions that recognize such privilege.  I look forward to discussing
later today.





The following procedures are intended to facilitate reconciliation of any
conflicts between local/national mandatory privacy laws or regulations and
applicable provisions of the ICANN contract regarding the collection,
display and distribution of personally identifiable data via Whois. 


The procedure


Step One: Notification of Initiation of Action


Once receiving notification of an investigation, litigation, regulatory
proceeding or other government or civil action that might affect its
compliance with the RAA ("Whois Proceeding"), a Registrar/ Registry must
within thirty (30) days provide ICANN's General Counsel with the following


·        Summary description of the nature and status of the action (e.g.,
inquiry, investigation, litigation, threat of sanctions, etc.)

·        Contact information for the responsible official of the registrar
for resolving the problem.

·        Contact information for the responsible territorial government
agency and a statement from the registrar authorizing ICANN to communicate
with those officials on the matter. If the registrar is prevented by
applicable law from granting such authorization, the notification should
document this.

·        The text of the applicable law or regulations upon which the local
government is basing its action or investigation, if such information has
been indicated by the government.


Meeting the notification requirement permits Registrars/Registries to
participate in investigations and respond to court orders, regulations, or
enforcement authorities in a manner and course deemed best by their counsel.


Depending on the specific circumstances of the Whois Proceeding, the
Registrar/Registry may request that ICANN keep all correspondence between
the parties confidential pending the outcome of the Whois Proceeding.


Step Two: Consultation

Unless impractical under the circumstances, the ICANN General Counsel may
[j2] <outbind://20/#_msocom_2>  , upon receipt and review of the
notification (which shall include dialogue with the registrar/registry if
appropriate), begin a process of consultation with the local/national
enforcement authorities together with the registrar/registry.  The goal of
the consultation process shall be to seek to resolve the problem in a manner
that preserves the ability of the registrar to comply with its contractual
obligations to the greatest extent possible.  


If the investigation or other matter ends without requiring any changes
and/or the required changes in registrar/registry practice do not, in the
opinion of the General Counsel, constitute a deviation from the R.A.A., then
the General Counsel and the registrar/registry need to take no further


If the registrar/registry is required by local law enforcement authorities
to make changes in its practices affecting compliance with contractual
obligations before any consultation process can occur, the
registrar/registry shall promptly notify the General Counsel of the changes
made and the law/regulation upon which the action was based.   The
Registrar/Registry may request that ICANN keep all correspondence between
the parties confidential pending the outcome of the Whois Proceeding.



Step Three:  General Counsel analysis and recommendation

If the local/national government requires changes that, in the opinion of
the General Counsel, prevent full compliance with contractual WHOIS
obligations, ICANN shall refrain, on a provisional basis, from taking
enforcement action against the registrar/registry for non-compliance, while
the General Counsel prepares a report and recommendation and submits it to
the ICANN Board for a decision. The report must contain: 

i.  A summary of the law or regulation involved in the conflict;

ii. Specification of the part of the registrar's contractual WHOIS
obligations for which the exception is requested; and  

iii. Recommendation of whether ICANN should agree to an exception for the
registrar/registry from one or more identified WHOIS contractual provisions.
The report shall include a detailed justification of its recommendation. . 


The registrar/registry shall be provided a copy of the report and provided a
reasonable opportunity to comment on it to the Board.  The
Registrar/Registry may request that ICANN keep such report confidential
prior to any resolution of the Board.



Step Four:  Resolution 


The Board shall consider and take appropriate action on the recommendations
contained in the General Counsel's report as soon as practicable.  Actions
could include, but are not limited to:


·        Approving the report's recommendations, with or without

·        Scheduling a public comment period on the report; or 

·        Referring the report to GNSO for its review and comment by a date



Step Five:  Public Notice


            The Board's resolution of the issue, together with the General
Counsel's report, shall ordinarily be made public, along with the reasons
for it, and shall be archived on a public website (along with other related
materials) for future research. Prior to release of such information to the
public, the Registry/Registrar may request that certain information
(including, but not limited to, communications between the
Registry/Registrar and ICANN, or other privileged/confidential information)
be redacted from the public notice.  In the event that such redactions make
it difficult to convey to the public the nature of the actions being taken
by the Registry/Registrar, the General Counsel shall work with the
Registry/Registrar on an appropriate notice to the public describing the
actions being taken and the justification for such actions. 


Unless the Board decides otherwise, if the result of its resolution of the
issue is that data elements in the registrar's Whois output will be removed
or made less accessible, its resolution shall include the following



*       ICANN shall issue an appropriate notice to the public of the
resolution and of the reasons for ICANN's forbearance from enforcement of
full compliance with the contractual provision in question. 


BM__msocom_1  [j1] <outbind://20/#_msoanchor_1>   I agree that "formal
notification" seems a bit too subjective (i.e., what does it mean in each
country to be formally notified), but learning is also too restrictive.  One
can "learn" about an action rather informally or that an action is a
possibility, but not necessarily a certainty.  

BM__msocom_2  [j2] <outbind://20/#_msoanchor_2> I am not sure it is
appropriate to mandate that ICANN be forced into interjecting itself into a
national proceeding.  There may be reasons why ICANN may not choose to get

BM__msocom_3  [j3] <outbind://20/#_msoanchor_3> I do not think this is a
reasonable request as it may force registrars to either direct persons to
their competitors or worse may lead them into contributing allowing others
to violate the privacy protections that they are supposed to be in
compliance with.  For example, lets say a Registrar A is forced to take down
certain Whois fields by its national government.  Also assume that certain
of Registrar A's customers have domains in a TLD where the Registry Operates
a Thick Whois, but that Registry is in another country where the privacy
laws are not as strict.  Although Registrar A's country may not be able to
exert jurisdiction over the registry, and therefore cannot prevent the data
from being displayed by the thick registry, I am not sure that a registrar
wants to (or may even be allowed to) direct persons to the thick registry
site (which it knows is not operating in compliance with Registrar A's
national laws). 


Attachment: Whoisstepbystepprocedure- revised (2) 110904.doc
Description: MS-Word document

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