[dow1-2tf] Whois tf1/2 teleconference draft minutes 21 Dec. 2004

["GNSO SECRETARIAT" <gnso.secretariat@xxxxxxxxxxxxxx>]

[To: dow1-2[at]gnso.icann.org]

Please find draft minutes from the Whois task force 1/2 teleconference held
on 21 December 2004.
Please let me know what changes or additions you would like made.

Thank you.
Kind regards.

Glen

Glen de Saint Géry
GNSO Secretariat

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<h4 align="center"><font face="Arial, Helvetica, sans-serif"><b>WHOIS Task 
Forces 
  1 &amp; 2 <br>
  <br>
  21 December, 2004 - Minutes</b></font></h4>
<p><b><font face="Arial, Helvetica, sans-serif">ATTENDEES:<br>
  </font></b></p>
<p><b><font face="Arial, Helvetica, sans-serif">GNSO Constituency 
representatives:<br>
  </font></b><font face="Arial, Helvetica, sans-serif"><br>
  gTLD Registries constituency: - Jeff</font><b><font face="Arial, Helvetica, 
sans-serif"> 
  </font></b><font face="Arial, Helvetica, sans-serif">Neuman</font><b><font 
face="Arial, Helvetica, sans-serif"> 
  - </font></b><font face="Arial, Helvetica, 
sans-serif">Co-Chair</font><b><font face="Arial, Helvetica, 
sans-serif"></font></b><font face="Arial, Helvetica, sans-serif"></font><font 
face="Arial, Helvetica, sans-serif"> 
  <br>
  gTLD Registries constituency - David Maher </font><b><font face="Arial, 
Helvetica, sans-serif"></font></b><font face="Arial, Helvetica, sans-serif"> 
  </font><font face="Arial, Helvetica, sans-serif"> <br>
  Commercial and Business Users constituency - Marilyn Cade</font><b><font 
face="Arial, Helvetica, sans-serif"><br>
  </font></b><font face="Arial, Helvetica, sans-serif">Registrars constituency 
  - Tom Keller</font><font face="Arial, Helvetica, sans-serif"> <br>
  <font face="Arial, Helvetica, sans-serif">Registrars constituency - Paul 
Stahura</font><font face="Arial, Helvetica, sans-serif"></font> 
  <br>
  </font><font face="Arial, Helvetica, sans-serif">Intellectual Property 
Interests 
  Constituency - Steve Metalitz </font><font face="Arial, Helvetica, 
sans-serif"><br>
  Intellectual Property Interests Constituency - Niklas Lagergren,<br>
  Non Commercial Users Constituency - Milton Mueller </font> <font face="Arial, 
Helvetica, sans-serif"></font><font face="Arial, Helvetica, sans-serif"> 
  <br>
  Non Commercial Users Constituency - Kathy Kleiman</font><font face="Arial, 
Helvetica, sans-serif"><br>
  </font> <font face="Arial, Helvetica, sans-serif">Internet Service and 
Connectivity 
  Providers constituency - Maggie Mansourkia</font><font face="Arial, 
Helvetica, sans-serif"> 
  <br>
  </font><font face="Arial, Helvetica, sans-serif"></font> <font face="Arial, 
Helvetica, sans-serif"> 
  </font><font face="Arial, Helvetica, sans-serif"> </font><font face="Arial, 
Helvetica, sans-serif"></font> 
  <font face="Arial, Helvetica, sans-serif">At-Large Advisory Committee (ALAC) 
  liaisons - Wendy Seltzer<br>
  <a 
href="http://gnso-audio.icann.org/WHOIS-20041214-tf12.mp3";></a></font><font 
face="Arial, Helvetica, sans-serif"> 
  </font><font face="Arial, Helvetica, sans-serif">At-Large Advisory Committee 
  (ALAC) liaisons - Thomas Roessler </font></p>
<p><font face="Arial, Helvetica, sans-serif"><br>
  <b>ICANN Staff Manager</b>: Barbara Roseman</font> <font face="Arial, 
Helvetica, sans-serif"> 
  </font><font face="Arial, Helvetica, sans-serif"><br>
  </font><font face="Arial, Helvetica, sans-serif"><b>GNSO Secretariat:</b> 
Glen 
  de Saint G&eacute;ry <br>
  <br>
  <b>Absent:</b></font><font face="Arial, Helvetica, sans-serif"><br>
  </font><font face="Arial, Helvetica, sans-serif">Registrars constituency - 
Jordyn 
  Buchanan - Co-Chair - apologies<br>
  </font><font face="Arial, Helvetica, sans-serif"><font face="Arial, 
Helvetica, sans-serif">Internet 
  Service and Connectivity Providers constituency: - Antonio 
</font></font><font face="Arial, Helvetica, sans-serif">Harris 
  - apologies<br>
  <font face="Arial, Helvetica, sans-serif">Registrars constituency -</font> 
Tim 
  Ruiz <br>
  </font><font face="Arial, Helvetica, sans-serif">Nominating committee 
representative 
  - Amadeu Abril l Abril</font> <font face="Arial, Helvetica, 
sans-serif"></font><font face="Arial, Helvetica, sans-serif"><br>
  Non Commercial Users Constituency - Marc Schneiders </font> <font 
face="Arial, Helvetica, sans-serif"></font><font face="Arial, Helvetica, 
sans-serif"> 
  - apologies</font><font face="Arial, Helvetica, sans-serif"> <br>
  </font><font face="Arial, Helvetica, sans-serif">Commercial and Business 
Users 
  constituency - David Fares</font> -<font face="Arial, Helvetica, sans-serif"> 
  aplogies</font><br>
  <font face="Arial, Helvetica, sans-serif"> </font><font face="Arial, 
Helvetica, sans-serif">Intellectual 
  Property Interests Constituency - Jeremy Banks</font><br>
  <font face="Arial, Helvetica, sans-serif"><br>
  <a href="http://gnso-audio.icann.org/WHOIS-20041221-tf12.mp3";>MP3 
recording</a><br>
  <br>
  <a 
href="http://gnso.icann.org/meetings/agenda-whoistf-21dec04.htm";>Agenda:</a><br>
  1. Discuss <a 
href="%3Cfont%20face=%22Arial,%20Helvetica,%20sans-serif%22%3Ehttp://gnso.icann.org/issues/whois-privacy/whois-tf-conflict-30nov04.pdf%20";>recommendation</a>
 
  as revised by ICANN staff <br>
  A Procedure for conflicts, when there are conflicts between a registrar's of 
  registry's legal obligations under local privacy laws and their contractual 
  obligations to ICANN <br>
  2. Discuss priorities and timelines for tiered access </font></p>
<p><font face="Arial, Helvetica, sans-serif"><b>1. Jeff Neuman</b> suggested 
starting 
  the meeting with reference to the <a 
href="http://gnso.icann.org/mailing-lists/archives/dow1-2tf/msg00183.html";>staff
 
  response</a> from <b>Paul Verhoef</b> on the task force <a 
href="%3Cfont%20face=%22Arial,%20Helvetica,%20sans-serif%22%3Ehttp://gnso.icann.org/issues/whois-privacy/whois-tf-conflict-30nov04.pdf%20";>recommendations
 
  on </a>a <a 
href="http://gnso.icann.org/issues/whois-privacy/whois-tf-conflict-30nov04.pdf";>Procedure
 
  for conflicts</a> <b> <br>
  </b></font><font face="Arial, Helvetica, sans-serif"><br>
  The following comments were made: (taken from Barbara Roseman's 
notes)</font></p>
<p><font face="Arial, Helvetica, sans-serif"><b>Point 1: </b><br>
  <b>Registries and registrars should of course not enter contracts that would 
  be illegal for them to perform.</b><br>
  </font><font face="Arial, Helvetica, sans-serif"><br>
  <b>Paul Stahura</b>: statement is correct, but what about after the agreement 
  is signed, and either the agreement changes, or national law changes? What 
happens 
  then? That is the point of the recommendation.<br>
  <br>
  <b>Milton Mueller</b>: Staff wants to be the policy maker and there is no 
flexibility 
  in the terms of the contract. If the bottom-up process decides that 
exceptions 
  are allowed, then ICANN should follow that decision. <br>
  <b><br>
  Tom Keller</b>: Trying to build a process in the case when legislation comes 
  up that makes part of the contract illegal when it wasn't illegal before. 
Can't 
  make policy for everything, just set guidelines. <br>
  <b><br>
  Jeff Neumann</b>: Agree with all points raised, ICANN is sending message that 
  while registries and registrars are bound by bottom-up process, ICANN is not. 
  If you live in a country where the national law conflicts with an ICANN 
requirement, 
  then you basically cannot be an ICANN accredited registry or registrar. 
Understand 
  that they don't want to introduce loopholes to the contracts, want to be able 
  to enforce the contracts, they still need to recognize that this is a 
problem. 
  Did you really intend to frame it this way? <br>
  <b><br>
  Steve Metalitz</b>: Need to have a dialogue with John Jeffrey and Paul 
Verhoef. 
  Seems they don't understand what was trying to be achieved. Can't be as black 
  and white as if the National law conflicts with the Registrars Accreditation 
  Agreement (RAA) that you can't be an accredited registrar. <b>Jeff 
Neumann</b>: 
  there are some registrars who don't currently comply with the Registrars 
Accreditation 
  Agreement , what is their status? <br>
  <br>
  <b>Point 2:<br>
  Fair competition rules dictate that registries and registrars should not be 
  able to gain a competitive advantage by choosing to operate from a 
jurisdiction 
  that has purportedly outlawed compliance with part of the Registrar 
Accreditation 
  Agreement (RAA). </b><br>
  <br>
  <b>Milton Mueller</b>: What bothers me here is the word "purportedly". We 
stated 
  that you had to clearly identify the law involved, not just make the claim 
about 
  illegality. Did they not understand what we wrote?<br>
  </font><font face="Arial, Helvetica, sans-serif"><br>
  <b>Paul Stahura</b>: Seem to be saying that competition trumps all other 
issues. 
  <br>
  <b><br>
  Tom Keller</b>: Should be extended to all registrars in that country, and 
then 
  it's up to the Board to decide if they want to continue working with those 
registrars. 
  Trying to force us to determine what the lowest common denominator is, should 
  be a process to evaluate different requirements and decide what the lowest 
common 
  denominator is. Staff should be involved, not council <br>
  <br>
  <b>Thomas Roessler:</b> Why is it a problem that someone seeks a competitive 
  advantage through whatever means. This happens in business all the time. 
Apparent 
  intent of staff is that local law not be taken into account so that 
registrars 
  don't get a competitive advantage. <br>
  <br>
  <b>Jeff Neumann</b>: Does ICANN believe that registrars will move all of 
their 
  operations to a locale where they can avoid certain restrictions? Even if 
they 
  open an office in such a jurisdiction, it wouldn't apply to all of their 
offices. 
  <br>
  <br>
  <b>Point 3<br>
  Without careful study, action to address the concerns raised by TF1/2 could 
  open loopholes to compliance with the RAA that would hurt data accuracy, 
consumer 
  protection, and other authorised uses of Whois data. </b><b><br>
  <br>
  Steve Metalitz</b>: Like other parts of this statement, I agree with point 3, 
  but it's prefaced with "without careful study" as if we haven't given it 
careful 
  study. We're reacting, in part, to the condescending tone of the staff 
response. 
  There's a tone here that implies we haven't given this a lot of thought.<br>
  <br>
  <b>Marilyn Cade</b>: considerable gap of understanding between us and the 
ICANN 
  staff. May still be a gap after dialogue, but the dialogue has to take place. 
  We may be so much better informed that we revise their thinking. <br>
  <br>
  <br>
  <b>Paul Stahura</b>: we need to check to see if they really understand what 
  we've written. They may fully understand the issue and have a different 
position 
  on it than the task force. <br>
  <br>
  <b>Point 4: <br>
  The recommendation is drafted broadly, and could be read to require ICANN to 
  allow violations of the RAA except to preserve stability or security. The 
draft 
  report appears to give registrars and registries the right to unilaterally 
breach 
  the RAA, as long as they give notice to ICANN. ICANN would be unable to take 
  any reaction to ensure compliance without formal action by the Board of 
Directors, 
  following a process that includes publishing a report that could contain 
privileged 
  and confidential legal advice from ICANN's attorneys. </b><br>
  <br>
  <b>Jeff Neumann</b>: May be a drafting problem in the task force language, so 
  perhaps could be better drafted. <br>
  <br>
  <b>Milton Mueller</b>: This language could be easily fixed if they would work 
  with us. <br>
  <br>
  <b>Jeff Neumann</b>: what about point that they couldn't act without board 
approval? 
  <br>
  <br>
  <b>Milton Mueller</b>: That's fully within our remit to clarify what 
everyone's 
  roles and responsibilities are; including stating that the General Counsel 
should 
  act with Board approval. If there are legitimate concerns on the part of the 
  staff, the procedure can accommodate them. It's better than saying that if 
your 
  local law doesn't allow something than you're out, can't be an accredited 
registrar. 
  <br>
  <br>
  <b>Steve Metalitz</b>: Seems like a lack of understanding of what we're 
recommending, 
  but there was a lot of discussion and disagreement about what the 
requirements 
  for General Counsel should be, this was a strong point of disagreement and 
negotiation 
  in the task force. May be able to be clarified through drafting different 
language.<br>
  <br>
  <b>Point 5: <br>
  The recommendation posits specific activities for the ICANN General Counsel's 
  office, and prescribes actions to the General Counsel's office which may be 
  dealt with more appropriately by policy development, registrar/registry 
liaison 
  or ICANN's Global Partnerships departments. The specificity of actions 
described 
  also seems like micro-management of ICANN staff resources in what is supposed 
  to be a policy discussion. <br>
  </b><br>
  <b>Jeff Neumann</b>: a little confused by this, first part says that policy 
  process shouldn't dictate too many things, but in point 5 they are saying 
that 
  these issues should go through the policy process. <br>
  <br>
  <b>Marilyn Cade</b>: we have a big gap in understanding between what 
constitutes 
  our role, vs. what constitutes the staff role in developing bottom-up policy. 
  We probably should invite Council to sit in on the call, implementing policy 
  is a different stage then developing policy. <br>
  <br>
  <b>Jeff Neumann</b>: Does ICANN have to implement consensus policy, 
regardless? 
  <br>
  <br>
  <b>Marilyn Cade</b>: Yes, or they have to send it back to us for more work. 
  <br>
  <br>
  <b>Milton Mueller</b>: There's a tendency among organizations for staff to 
become 
  more and more empowered. I don't understand how you can make a policy 
effective 
  without somehow translating it into a procedure. In the .net situation, we 
set 
  a policy, and established a procedure. That wasn't micro-management. You have 
  to get down to details about what procedures everyone involved follows, you 
  have to set a procedure. All staffs want to be autonomous, but if you accept 
  the ICANN structure, we're fully within the mandate of the GNSO to set a 
procedure. 
  <br>
  <br>
  <b>Steve Metalitz</b>: This is another point where having the dialogue might 
  clarify things. We put General Counsel in this stage because we thought that 
  was the right person to do these things, if ICANN staff feels its someone 
else, 
  then so be it. You have to remember that we started with a more general 
procedure 
  and got more and more specific. Staff should look at the process of our 
discussion 
  and see why we arrived at this conclusion. Then determine if they disagree 
with 
  the recommendation. <br>
  <b><br>
  Point 6: <br>
  In light of the serious concerns meant to be addressed by the recommendation, 
  and the issues outlined above with the initially suggested approach, might it 
  be preferable to focus GNSO attention on developing improvements to Whois 
policies 
  that will allow for the broadest possible harmony with local regulations, and 
  then continue to leave it up to individual companies to determine whether 
they 
  can undertake the obligations set forth in ICANN policies and agreements in 
  light of local requirements?</b><br>
  <br>
  <b>Jeff Neumann</b>: This has most of the condescending tone, and is 
dismissive 
  of our work. But, they may be right that if we found the right lowest common 
  denominator for Whois, this may not be an issue <br>
  <br>
  <b>Milton Mueller</b>: Just recall that we viewed this as low-hanging fruit 
  and the need for this would go away if we reformed whois in the way some of 
  us want to. But, in the meantime, we need to have something like this. <br>
  <br>
  <b>Marilyn Cade</b>: In the past we were able to work more closely with ICANN 
  staff and get feedback as we were going along. It seems we're at that stage 
  now, where we need to do this consultation and figure out how to proceed 
given 
  everyone's concerns. Let's just go ahead and schedule it. <br>
  <br>
  <b>Paul Stahura</b>: Maybe if we go ahead with tiered access, we can address 
  local concerns through that. Maybe we don't need this policy. <br>
  <br>
  <b>Jeff Neumann </b>and others: Were under the impression that having Barbara 
  involved in the calls meant there was communication between the task force 
and 
  ICANN staff. Clearly that wasn't the case, and we need to schedule a call 
with 
  Paul Verhoef. John Jeffrey, and Dan Halloran, or as many of them as we can 
get 
  in order to discuss the issues.<br>
  <br>
  <b>Marilyn Cade</b>: Don't need a point-by-point rebuttal, should have a call 
  with the Task Force discussing the background of the recommendations, and 
have 
  them be prepared to discuss the overall issue. Responsibility of the ICANN 
staff 
  to familiarize themselves with the work of the task force and come to the 
discussion 
  prepared to address the heart of the issues. <br>
  <br>
  <b>Jeff Neumann</b>: I'll craft an invite to staff that addresses those 
concerns 
  for them to be familiar with our prior work. Does anyone have any issues with 
  inviting Council to participate in the call? No, so I'll include them in the 
  invite. <br>
  I will issue an invite to ICANN staff, GNSO Council for a call. Purpose of 
the 
  call is to discuss the email that was sent by Paul Verhoef to the task force, 
  will ask everyone to review the record of the task force. That the record may 
  answer many of their questions, that on the call we'll review where we are, 
  how we got there, and then we'll have a discussion. <br>
  </font></p>
<p><font face="Arial, Helvetica, sans-serif"><b>Call for Constituency 
statements</b><br>
  <b>Jeff Neumann</b> proposed proceeding with a call for constituency 
statements 
  for <a 
href="http://gnso.icann.org/issues/whois-privacy/whois-notification-30nov04.pdf";>recommendations</a>
 
  relating to improving notification and consent for the use of contact data in 
  the Whois system. The aim was to draft a preliminary report and attach the 
constituency 
  statements.<br>
  <b><br>
  Proposed time line:</b><br>
  </font><font face="Arial, Helvetica, sans-serif">31 January 2005 deadline for 
  submission of constituency statements<br>
  </font></p>
<p><b><font face="Arial, Helvetica, sans-serif">2. Discuss priorities and 
timelines 
  for tiered access</font></b><font face="Arial, Helvetica, sans-serif"><br>
  </font><font face="Arial, Helvetica, sans-serif"><b>Next Call:</b></font></p>
<p><font face="Arial, Helvetica, sans-serif">Proposed date and agenda:</font> 
  <br>
  <font face="Arial, Helvetica, sans-serif">4 January 2005 task force 1/2 
teleconference<br>
  - firm up questions for the open call with CRISP panel on 12 January 2005 <br>
  - follow up on request for meeting with ICANN staff<br>
  - next steps in Tiered Access - extend invitations<br>
  </font></p>
<p><font face="Arial, Helvetica, sans-serif"> </font><font face="Arial, 
Helvetica, sans-serif"><b>Jeff 
  Neuman thanked everyone for their presence and participation.<br>
  <br>
  Next Call:</b> <b>4 January 2005<br>
  see: </b><a href="http://gnso.icann.org/calendar/";>GNSO calendar</a><b><br>
  <br>
  </b></font></p>
<p>&nbsp;</p>
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