[registrars] Regarding proposed WHOIS recommendation to deal with conflicts with local laws with respect to WHOIS

["Bruce Tonkin" <Bruce.Tonkin@xxxxxxxxxxxxxxxxxx>]

Hello All,
 
The combined WHOIS Task force 1/2 proposed a recommendation that would
allow a registrar to get an exemption from parts of the current WHOIS
obligations if a local law was in conflict with the registrar
accreditation agreement.

See:
http://www.gnso.icann.org/issues/whois-privacy/whois-tf-conflict-30nov04
.pdf 

The ICANN staff have provided the following comments.

Regards,
Bruce Tonkin


________________________________

From: Paul Verhoef 
Sent: Tuesday, 21 December 2004 7:12 AM

TO: Task Force 1/2 co-chair 

Dear Jordyn, 

I have consulted with our operations and legal staff, and have developed
the following informal feedback concerning Task Force 1/2's draft
recommendation:

1. Registries and registrars should of course not enter contracts that
would be illegal for them to perform. 

2. 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.

3. 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.

4. 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 priviliged and
confidential legal advice from ICANN's attorneys.

5. The recommendation posits specific activities for the ICANN General
Counsel's office, and prescribes actions to the GC'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.

6. 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?

Thank you for asking for our feedback.  I hope this is helpful to you
and the task force.  I look forward to providing further assistance as
you may require.

Best regards, 
Paul  


____________________________________ 
Paul Verhoef 
Vice President Policy Development Support 
ICANN 
6 Rond Point Schuman, Bt.5 
B-1040 Brussels, Belgium 
Tel.: +32.2.234 7872 
Fax: +32.2.234 7848 
www.icann.org <http://www.icann.org>