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

["Jordyn Buchanan" <jbuchanan@xxxxxxxxxxxx>]

A couple of quick notes of clarification:
 
1) There are two elements to the proposal.  One could become binding
ICANN consensus policy.  This is ONLY the portion from Bruce's first
message in paragraphs 1 and 2 (a-d).  This policy recommendation
requires ICANN to develop and document a mechanism for resolving
conflicts between Whois obligations and local/national privacy laws.
The second portion of the proposal is a suggested procedure.  This is
simply advice.  ICANN can decide whether or not the procedure is a good
use of its staff's time and modify it accordingly.  If the policy were
adopted, ICANN would be obligated to develop a procedure, but not use
this particular procedure.
 
2) This policy applies only to Whois obligations and local or national
privacy laws.  I understand that there's some sort of "slippery slope"
argument being made by Tim and perhaps John, but it is important to note
that the current policy does not create a general exemption procedure.
 
Now, a brief expression of my personal opinion as a registrar:
 
I like Bruce's proposed revision to the policy recommendation.  I think
that it prevents registrars from using the procedure to gain some sort
of advantage, although I'm not at all convinced that there's a
significant competitive advantage to be gained by forum shopping on this
particular issue.
 
As John notes, I think Tim is mistaken to suggest that the current
"don't break laws" provision in the contract means what Tim seems to be
suggesting.  It just means you can't break local or national laws and be
in compliance with your ICANN agreement; it doesn't mean that ICANN has
somehow attempt to resolve the issue.

More importantly, Tim suggests that registrars and ICANN can open a
dialogue when conflicts come up.  That's true, but right now it's not at
all clear how ICANN should handle those situations.  I imagine they just
make up a procedure on their own.  We have no understanding of what the
procedure is, how long it will take, how ICANN will choose to apply it
from one registrar to the other, etc.  If there's a documented
procedure, there will be greater transparency when conflicts arise and
ICANN seeks to resolve them.  As long as there's the potential for ICANN
to make exceptions, I'd rather know how they're going to do it.

Jordyn
 


________________________________

From: owner-registrars@xxxxxxxxxxxxxx
[mailto:owner-registrars@xxxxxxxxxxxxxx] On Behalf Of John Berryhill
Sent: Friday, June 17, 2005 11:22 AM
To: Bruce Tonkin; registrars@xxxxxxxx
Subject: RE: [registrars] Comments on WHOIS task force recommendation on
Conflicts with Local law


 
I agree with Tim for the additional reason that the proposal below
appears to engage ICANN general counsel and staff in the business of
providing advice to registrars relative to compliance with their
respective national laws and/or engaging ICANN general counsel in
prescribing "ICANN compliance" in conflict with national authorities.
 
While any lawyer might enjoy kibitzing on other people's legal problems,
acting on legal guidance from ICANN in the absence of ICANN's acceptance
of malpractice liability and indemnification, seems a bit much for a
registrar to assume.  ICANN's general counsel is, in fact, prohibited by
the law of the State of California from rendering legal advice without
exposure to unlimited personal liability.  If ICANN's counsel desires to
opine on the laws of several nations, then I would admire the fortitude
required to seek admission to practice in those jurisdictions.
 
Tim is absolutely correct there is a larger principle at work than
simply the WHOIS issue.
 
It is entirely conceivable that a national law could be so opposed to an
ICANN accreditation provision that it turns out that a registrar cannot
operate in that country and be ICANN compliant.  For example, there are
countries in which business entities cannot legally pay their
obligations to ICANN - e.g. Cuba.  As attractive a notion it may be to
send ICANN staff to North Korea to work out a compromise position on
WHOIS or other issues, I am fond of certain members of that staff and
would like to see them return.  
 
There seems to be a line of reasoning in this discussion which has not
been made explicit.  A contract obligation to "abide by applicable laws
and governmental regulations" is not normally understood to excise any
other contract provision that may by its own terms conflict with such
applicable law.  It does, however, render the relevant party incapable
of performing.  Hence, it may well be that there are national laws so
repugnant to ICANN contract requirements as to simply make it impossible
to accredit or operate a registrar in the relevant nations. Morphing a
"uniform" contract to have non-uniform requirements depending on a
contracting party's location merely creates a haven or
race-to-the-bottom effect.
 
So, if a law in Whereisastan renders Whereisastanis from operating as
duly ICANN accredited registrars, then that is a problem between the
affected Whereisastanis and their government - it is not ICANN's
problem, nor is it the problem of compliant registrars outside of
Whereisastan.
 
John Berryhill
 
 
 
 -----Original Message-----
From: owner-registrars@xxxxxxxxxxxxxx
[mailto:owner-registrars@xxxxxxxxxxxxxx]On Behalf Of Tim Ruiz
Sent: Friday, June 17, 2005 8:27 AM
To: Bruce Tonkin
Cc: registrars@xxxxxxxx
Subject: RE: [registrars] Comments on WHOIS task force recommendation on
Conflicts with Local law



	Bruce,
	 
	I agree with your principles. I just don't believe we need any
new consensus policy on this subject for the following reasons:
	 
	1. Secton 3.7.2 of the RAA already covers this: "Registrar shall
abide by applicable laws and governmental regulations." Any registrar is
capable of contacting ICANN to open a dialogue when a conflict exists.
	 
	2. Whois is just one area where conflicts might come up. 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.

	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.
	 
	Tim




		-------- Original Message --------
		Subject: [registrars] Comments on WHOIS  task force
recommendation on
		Conflicts with Local law
		From: "Bruce Tonkin" <Bruce.Tonkin@xxxxxxxxxxxxxxxxxx>
		Date: Fri, June 17, 2005 3:45 am
		To: registrars@xxxxxxxx
		
		Hello All,
		
		The WHOIS task force have been discussing a proposed
consensus
		recommendation with respect to the conflict between
local laws and
		ICANN.
		
		I think the principles should be:
		- registrars must comply with their ICANN agreements
		- registrars must comply with the laws of the countries
they operate in
		- registrars need to be innovative in coming up with
solutions to
		problems that meet both the above requirements
		- ICANN staff can assist registrars by providing
feedback on whether the
		innovative approaches by registrars are still compliant
with the ICANN
		agreements
		- ICANN staff should assist the GNSO policy process by
providing advice
		that assists refining the consensus polices to make it
easier for
		registrars to comply with local laws, provided these
laws are in the
		best interest of registrants and Internet users
generally
		
		The draft consensus policy recommendation states:
		
		
		
		"CONSENSUS POLICY RECOMMENDATION
		
		In order 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 personal data via Whois, ICANN should: 
		
		1.  Develop and publicly document a procedure for
dealing with the
		situation in which a registrar or registry can credibly
demonstrate that
		it is legally prevented by local/national privacy laws
or regulations
		from fully complying with applicable provisions of its
ICANN contract
		regarding the collection, display and distribution of
personal data via
		WHOIS.   
		
		2.  Create goals for the procedure which include:  
		
		a.  Ensuring that ICANN staff is informed of a conflict
at the
		earliest appropriate juncture;
		
		b.  Resolving the conflict, if possible, in a manner
conducive
		to stability and uniformity of the Whois system;
		
		c.  Providing a mechanism for the recognition, in
appropriate
		circumstances where the conflict cannot be otherwise
resolved, of an
		exception to contractual obligations with regard to
collection, display
		and distribution of personally identifiable data via
Whois; and 
		
		d.  Preserving sufficient flexibility for ICANN staff to
respond
		to particular factual situations as they arise."
		
		I recommend that (c) above either be deleted or
redrafted as:
		"Providing a mechanism for the recognition, in
appropriate circumstances
		where the conflict cannot be otherwise resolved, of an
exception to
		contractual obligations FOR ALL REGISTRARS with regard
to collection,
		display and distribution of personally identifiable data
via Whois;
		
		
		Regards,
		Bruce Tonkin