Re: [ga] Notice of Implementation Date for WHOIS National Laws Procedure

[JFC Morfin <jefsey@xxxxxxxxxxxxxxxx>]

I have a simple typical case to discuss.

1. A has a domain names he entrusts the management to B.
2. B uses that trust to transfer the domain to C, via a third-country 
registrar, to use it out of A's control, and A, B and C national laws.
3. A complains to C who acknowledges the rights of A, but being under 
B's pressure decides to freeze the situation until it is legally sorted.
4. after a few weeks C decides that no action is under way and 
transfers the domain name to a non-existing/not responding D.
5. When A complains that B continues to use the domain name, C 
answers it is no more involved.
What should A do?
jfc



At 09:44 19/12/2007, GNSO.SECRETARIAT@xxxxxxxxxxxxxx wrote:
> [To: liaison6c[at]gnso.icann.org]
> [To: ga[at]gnso.icann.org; announce[at]gnso.icann.org]
> [To: regional-liaisons[at]icann.org]
>
> http://www.icann.org/announcements/announcement-18dec07.htm
> Notice of Implementation Date for WHOIS National Laws Procedure
>
> 18 December 2007
>
> Today ICANN is publishing a notice of implementation of the ICANN 
> Procedure for Handling WHOIS Conflicts with Privacy Law. The 
> procedure will be posted for 30 days, and implemented on 17 January 
> 2008. The draft procedure was first posted for comment on 3 December 
> 2006, see 
> http://gnso.icann.org/issues/whois-privacy/whois_national_laws_procedure.htm. 
> ICANN sought input on the draft procedure from the Governmental 
> Advisory Committee (GAC).
> The procedure has been revised to incorporate advice from the GAC, 
> and is available at 
> http://gnso.icann.org/issues/whois-privacy/revised-draft-whois-procedure-18dec07.pdf 
> [PDF, 29K]. New language has been inserted into Sections 1.4, 2.1, 
> 3.1 and 5.1 of the procedure, based on input received from the GAC 
> and from members of the ICANN Board in the Los Angeles meeting. The 
> ICANN Board discussed the draft procedure during the public meeting 
> of the Board on 2 November 2007 in Los Angeles, and noted that "the 
> next step now would be for the staff to update their procedure in 
> taking into account that advice [from the GAC]."
> The procedure describes how ICANN will respond to a situation where 
> a registrar or registry indicates (and seeks to demonstrate) that it 
> is legally prevented by local/national privacy laws or regulations 
> from complying with the provisions of its ICANN contract regarding 
> the collection, display and distribution of personal data via WHOIS. 
> The procedure is for use by ICANN staff. While it includes possible 
> actions for the affected gTLD registry or registrar, this procedure 
> does not impose any new obligations on registries, registrars or 
> third parties. It aims to inform gTLD registries, registrars and 
> other parties of the steps to be taken when a possible conflict 
> between other legal obligations and the ICANN contractual 
> requirements regarding WHOIS is reported to ICANN.
> Since publication of the first draft procedure, ICANN staff has been 
> applying the draft procedure in handling potential conflicts between 
> WHOIS provisions and national laws to test its effectiveness.
> Background
>
> In December 2003, the Whois Task Force 2 of the GNSO recommended the 
> development of a procedure to allow gTLD registry and registrars to 
> demonstrate when they are prevented by local laws from fully 
> complying with the provisions of ICANN contracts regarding personal 
> data in Whois.
> In November 2005, the GNSO concluded a policy development process on 
> establishing such a procedure. The policy includes 'well-developed 
> advice on a procedure' created through: extensive solicitation of 
> community comment, recommendation by the WHOIS Task Force, and 
> approval by the GNSO Council. In May 2006, the ICANN Board adopted 
> the policy and directed ICANN staff to develop and publicly document 
> a conflicts procedure.
> The draft ICANN Procedure for Handling WHOIS Conflicts with Privacy 
> Law 
> (http://gnso.icann.org/issues/whois-privacy/whois_national_laws_procedure.htm) 
> was published on 3 December 2006. ICANN sought input on the draft 
> procedure from the Governmental Advisory Committee (GAC). On 28 
> March 2007, the GAC published its Principles Regarding gTLD WHOIS 
> Services (http://gac.icann.org/web/communiques/gac27com.pdf [PDF, 
> 209K]). GAC Principle 3.2 states that "gTLD WHOIS services must 
> comply with applicable national laws and regulations."
> The GAC Communique from 28 June 2007 
> (http://gac.icann.org/web/communiques/gac28com.pdf [PDF, 177K]) 
> included specific reference to the draft procedure:
> "The GAC welcomes the opportunity to respond to the 'draft ICANN 
> Procedure for Handling WHOIS Conflicts with Privacy Law.' Since this 
> draft procedure was produced in December 2006, the GAC has prepared 
> its 'Principles regarding gTLD WHOIS Services.' These principles 
> provide the framework for dealing with potential conflicts.
> "We recognise the importance of effective conflict resolution 
> mechanisms for the WHOIS regime, and we expect to see this as an 
> integral part of the GNSO proposals for a future ICANN WHOIS regime.
> "We will provide formal advice on the conflict procedures based on 
> the GAC WHOIS principles at the meeting in Los Angeles. The GAC 
> recommends that the Board reviews the draft procedure in light of 
> this substantive contribution.
> "In the interim, specific cases should be referred to the relevant 
> national government for advice on the authority of the request for 
> derogation from the ICANN gTLD WHOIS policy."
> The GAC Communique issued on 31 October 2007 in Los Angeles 
> (http://gac.icann.org/web/communiques/gac29com.pdf [PDF, 73K]) noted that:
> "the GAC welcomes the opportunity to respond to the 'draft ICANN 
> Procedure for Handling WHOIS Conflicts with National Privacy Laws.' 
> Due to the complexity of this issue related to the diversity of 
> national policies and procedures among GAC members the GAC does not 
> believe a uniform process is workable and accordingly the interim 
> solution from the GAC's San Juan communiqué should be the basis for 
> resolving any potential conflict:
> . specific cases should be referred to the relevant national 
> government for advice on the authority of the request for derogation 
> from the ICANN gTLD WHOIS policy."
> On 2 November 2007, the ICANN Board noted that staff would update 
> the procedure to incorporate GAC advice 
> (http://losangeles2007.icann.org/files/losangeles/LA-BoardofDirectors(Part1)-2NOV07.txt). 
> The revision described in this notice reflects the input received 
> since the publication of the draft procedure on 3 December 2006.
> --
> Glen de Saint Géry
> GNSO Secretariat - ICANN
> gnso.secretariat[at]gnso.icann.org
> http://gnso.icann.org