RE: [registrars] Comments on WHOIS task force recommendation on Conflicts with Local law

[Tim Ruiz <tim@xxxxxxxxxxx>]

<DIV>Bruce,</DIV>
<DIV>&nbsp;</DIV>
<DIV>I agree with your principles. I just don't believe we need any
new&nbsp;consensus policy on this subject for the following
reasons:</DIV>
<DIV>&nbsp;</DIV>
<DIV>1. Secton&nbsp;3.7.2 of the RAA&nbsp;already covers
this:&nbsp;"Registrar shall abide by applicable laws and governmental
regulations." Any registrar is capable of contacting ICANN to open a
dialogue when a conflict exists.</DIV>
<DIV>&nbsp;</DIV>
<DIV>2. Whois is just one area where&nbsp;conflicts might&nbsp;come
up.&nbsp;I don't believe a precedent should be set where PDPs get
started on every area or situation where such conflicts might occur.
That is not practical nor achievable.</DIV>
<DIV><BR>I have made a request to the TF for a couple of minor but
important changes to the policy portion, but only out of concern that
it *might* become consensus policy. I do not expect that those changes
will be accepted, but either way I suggest that when the RC is asked
for a position statement on this recommendation that we wholly reject
both the policy and advice portions based on 1 and 2 above.</DIV>
<DIV>&nbsp;</DIV>
<DIV>Tim</DIV><BR><BR>
<BLOCKQUOTE style="PADDING-LEFT: 8px; MARGIN-LEFT: 8px; BORDER-LEFT:
blue 2px solid"><BR>-------- Original Message --------<BR>Subject:
[registrars] Comments on WHOIS &nbsp;task force recommendation
on<BR>Conflicts with Local law<BR>From: "Bruce Tonkin"
&lt;Bruce.Tonkin@xxxxxxxxxxxxxxxxxx&gt;<BR>Date: Fri, June 17, 2005
3:45 am<BR>To: registrars@xxxxxxxx<BR><BR>Hello All,<BR><BR>The WHOIS
task force have been discussing a proposed consensus<BR>recommendation
with respect to the conflict between local laws and<BR>ICANN.<BR><BR>I
think the principles should be:<BR>- registrars must comply with their
ICANN agreements<BR>- registrars must comply with the laws of the
countries they operate in<BR>- registrars need to be innovative in
coming up with solutions to<BR>problems that meet both the above
requirements<BR>- ICANN staff can assist registrars by providing
feedback on whether the<BR>innovative approaches by registrars are
still compliant with the ICANN<BR>agreements<BR>- ICANN staff should
assist the GNSO policy process by providing advice<BR>that assists
refining the consensus polices to make it easier for<BR>registrars to
comply with local laws, provided these laws are in the<BR>best interest
of registrants and Internet users generally<BR><BR>The draft consensus
policy recommendation states:<BR><BR><BR><BR>"CONSENSUS POLICY
RECOMMENDATION<BR><BR>In order to facilitate reconciliation of any
conflicts between<BR>local/national mandatory privacy laws or
regulations and applicable<BR>provisions of the ICANN contract
regarding the collection, display and<BR>distribution of personal data
via Whois, ICANN should: <BR><BR>1. &nbsp;Develop and publicly document
a procedure for dealing with the<BR>situation in which a registrar or
registry can credibly demonstrate that<BR>it is legally prevented by
local/national privacy laws or regulations<BR>from fully complying with
applicable provisions of its ICANN contract<BR>regarding the collection,
display and distribution of personal data via<BR>WHOIS. &nbsp;
<BR><BR>2. &nbsp;Create goals for the procedure which include:
&nbsp;<BR><BR>a. &nbsp;Ensuring that ICANN staff is informed of a
conflict at the<BR>earliest appropriate juncture;<BR><BR>b.
&nbsp;Resolving the conflict, if possible, in a manner conducive<BR>to
stability and uniformity of the Whois system;<BR><BR>c. &nbsp;Providing
a mechanism for the recognition, in appropriate<BR>circumstances where
the conflict cannot be otherwise resolved, of an<BR>exception to
contractual obligations with regard to collection, display<BR>and
distribution of personally identifiable data via Whois; and <BR><BR>d.
&nbsp;Preserving sufficient flexibility for ICANN staff to
respond<BR>to particular factual situations as they arise."<BR><BR>I
recommend that (c) above either be deleted or redrafted
as:<BR>"Providing a mechanism for the recognition, in appropriate
circumstances<BR>where the conflict cannot be otherwise resolved, of an
exception to<BR>contractual obligations FOR ALL REGISTRARS with regard
to collection,<BR>display and distribution of personally identifiable
data via Whois;<BR><BR><BR>Regards,<BR>Bruce Tonkin </BLOCKQUOTE>