RE: [registrars] Motion to Adopt: Whois Conflicts

["Paul Stahura" <stahura@xxxxxxxx>]

I endorse this motion as well.

Also, we need to get our statement (on Recommendation 2) into the TF by
21 JULY 2005.
http://www.gnso.icann.org/calendar/#july 
I guess we may be late on that.

-----Original Message-----
From: owner-registrars@xxxxxxxxxxxxxx
[mailto:owner-registrars@xxxxxxxxxxxxxx] On Behalf Of Jordyn Buchanan
Sent: Monday, July 18, 2005 12:36 PM
To: ross@xxxxxxxxxx
Cc: registrars@xxxxxxxx
Subject: RE: [registrars] Motion to Adopt: Whois Conflicts

I endorse this motion (with the clarification that I think these changes
were actually worked out within the TF--Bruce has suggested
modifications to the policy recommendations relating to notification of
registrants, not this one).

Jordyn

-----Original Message-----
From: owner-registrars@xxxxxxxxxxxxxx
[mailto:owner-registrars@xxxxxxxxxxxxxx] On Behalf Of Ross Wm. Rader
Sent: Sunday, July 17, 2005 1:05 PM
To: ross@xxxxxxxxxx
Cc: registrars@xxxxxxxx
Subject: Re: [registrars] Motion to Adopt: Whois Conflicts

Registrars -

I hope everyone travelling had a safe return from our meeting! It was
great reconnecting with each of you.

I also require endorsements and/or amendments to this motion. It is
extremely important that we provide our task force representatives with
a clear indication of the consituencies needs as it relates to this
important issue.

If you do not agree with the text of this motion, please forward an
amendment to the list and we can discuss it - the motion adopted for
presentation to the task force does not have to be this one, but it is
important that we have one.

If you have any questions, please let me know.


On 7/11/2005 10:34 AM Ross Rader noted that:
> I move that we adopt Bruce Tonkin's amendments to the Whois Task Force

> Recommendations on Avoiding Conflicts with National Law and that our 
> Task Force and Council representatives advocate the adoption of this 
> position in their respective meetings and discussions.
> 
> A text version of Bruce's amendments follow this motion. I have 
> attached PDF and RTF versions to this message.
> 
> Preamble:
> 
> Task Force 2 spent over a year collecting data and working on the 
> conflict between a registrar/registry's legal obligations under 
> privacy laws and their contractual obligations to ICANN.  Its report 
> included the statement:  "The Task Force believes that there is an 
> ongoing risk of conflict between a registrar's or registry's legal 
> obligations under local privacy laws and their contractual obligations

> to ICANN.  TF2 Report, Section 2.3, 
>
http://www.gnso.icann.org/issues/whois-privacy/Whois-tf2-preliminary.htm
l.
> 
> By vote of the Task Force, now merged, on May 24, 2005, the work of 
> Task  Force 2 is hereby divided into a recommendation for "consensus
policy"
> accompanied by "well-developed advice for a procedure."
> 
> I.  Task Force Policy for WHOIS Conflicts with Privacy Law
> 
> 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 for all registrars` 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.
> 
> 
> II.  Guidance on  Procedure
> 
> Well-Developed Advice on a Procedure for Handling WHOIS Conflicts
>   with Privacy Law
> 
> Based on extensive research and negotiation among Task Force 2 
> together with the merged Task Force and ICANN staff, the following 
> procedure for handling the policy recommendation set out in Section I 
> above is set out  as a Recommended Step-by-Step Procedure for 
> Resolution of WHOIS Conflicts with Privacy Law.  We encourage ICANN 
> staff to use this Recommended Procedure as a starting point for 
> developing the procedure called for in the Consensus Policy 
> Recommendation above.
> 
> 
> Step One: Notification of Initiation of Action
> 
> Once receiving notification of an investigation, litigation, 
> regulatory proceeding or other government or civil action that might 
> affect its compliance with the provisions of the RAA or other 
> contractual agreement  with ICANN dealing with the collection, display

> or distribution of personally identifiable data via Whois ("Whois 
> Proceeding"), a Registrar/ Registry must within thirty (30) days 
> provide ICANN's General  Counsel (or other staff member as designated 
> by ICANN)1 with the following information:
> 
> Summary description of the nature and status of the action (e.g., 
> inquiry, investigation, litigation, threat of sanctions, etc.) Contact

> information for the responsible official of the registrar/registry for

> resolving the problem.
> Contact information for the responsible territorial government agency 
> or  other claimant and a statement from the registrar/registry 
> authorizing ICANN to communicate with those officials or claimants on 
> the matter. If  the registrar/registry is prevented by applicable law 
> from granting such  authorization, the notification should document
this.
> The text of the applicable law or regulations upon which the local 
> government or other claimant is basing its action or investigation, if

> such information has been indicated by the government or other
claimant.
> 
> Meeting the notification requirement permits Registrars/Registries to 
> participate in investigations and respond to court orders, 
> regulations, or enforcement authorities in a manner and course deemed 
> best by their counsel.
> 
> Depending on the specific circumstances of the Whois Proceeding, the 
> Registrar/Registry may request that ICANN keep all correspondence 
> between the parties confidential pending the outcome of the Whois 
> Proceeding.  It is recommended that ICANN respond favorably to such 
> requests to the extent that they can be accommodated with other legal 
> responsibilities and basic principles of transparency applicable to 
> ICANN operations.
> 
> Step Two: Consultation
> 
> Unless impractical under the circumstances, we recommend that the 
> ICANN General Counsel, upon receipt and review of the notification 
> and, where appropriate, dialogue with the registrar/registry, consider

> beginning a process of consultation with the local/national 
> enforcement authorities or other claimant together with the 
> registrar/registry.  The goal of the  consultation process should be 
> to seek to resolve the problem in a manner that preserves the ability 
> of the registrar/registry to comply with its contractual obligations
to the greatest extent possible.
> 
> The Registrar should attempt to identify a solution that allows the 
> registrar to meet the requirements of both the local law and ICANN 
> obligations.  The General Counsel can assist in advising the registrar

> on whether the proposed solution meets the ICANN obligations.
> 
> If the Whois proceeding  ends without requiring any changes and/or the

> required changes in registrar/registry practice do not, in the opinion

> of the General Counsel, constitute a deviation from the R.A.A. or 
> other contractual obligation , then the General Counsel and the 
> registrar/registry need to take no further action.
> 
> If the registrar/registry is required by local law enforcement 
> authorities or a court to make changes in its practices affecting 
> compliance with Whois-related  contractual obligations before any 
> consultation process can occur, the registrar/registry shall promptly 
> notify the General Counsel of the changes made and the law/regulation
> upon which the action was based.   The Registrar/Registry may request
> that ICANN keep all correspondence between the parties confidential
> pending the outcome of the Whois Proceeding.   It is recommended that
> ICANN respond favorably to such requests to the extent that they can 
> be accommodated with other legal responsibilities and basic principles

> of transparency applicable to ICANN operations.
> 
> 
> Step Three:  General Counsel analysis and recommendation
> 
> If the local/national government requires changes (whether before, 
> during or after the consultation process described above)  that, in 
> the opinion of the General Counsel, prevent full compliance with 
> contractual  WHOIS obligations, ICANN should consider the following 
> alternative to the normal enforcement procedure.  Under this 
> alternative, ICANN would refrain, on a provisional basis, from taking 
> enforcement action against the registrar/registry for non-compliance, 
> while the General Counsel prepares a report and recommendation and 
> submits it to the ICANN Board for a decision. Such a report may
contain:
> 
> i.A summary of the law or regulation involved in the conflict;
> 
> ii.Specification of the part of the registry or registrar's 
> contractual WHOIS obligations with which full compliance if being 
> prevented; iii.Summary of the consultation process if any under step 
> two; and
> 
> iv.Recommendation of how the issue should be resolved, which may 
> include  whether ICANN should provide an exception for all 
> registrars/registries  from one or more identified WHOIS contractual 
> provisions. The report should include a detailed justification of its 
> recommendation, including  the anticipated impact on the operational 
> stability, reliability, security, or global interoperability of the 
> Internet's unique identifier  systems if the recommendation were to be
approved or denied .
> 
> The registrar/registry should be provided a copy of the report and 
> provided a reasonable opportunity to comment on it to the Board.  The 
> Registrar/Registry may request that ICANN keep such report 
> confidential prior to any resolution of the Board.  It is recommended 
> that ICANN respond favorably to such requests to the extent that they 
> can be accommodated with other legal responsibilities and basic 
> principles of transparency applicable to ICANN operations.
> 
> 
> 
> Step Four:  Resolution
> 
> Keeping in the mind the anticipated impact on the operational 
> stability,  reliability, security, or global interoperability of the 
> Internet's unique identifier systems, the Board should consider and 
> take appropriate action on the recommendations contained in the 
> General Counsel's report as soon as practicable.  Actions could 
> include, but are  not limited to:
> 
> Approving or rejecting the report's recommendations, with or without 
> modifications; Scheduling a public comment period on the report; or 
> Referring the report to GNSO for its review and comment by a date 
> certain.
> 
> 
> 
> 
> Step Five:  Public Notice
> 
>     The Board's resolution of the issue, together with the General 
> Counsel's report, should ordinarily be made public, along with the 
> reasons for it, and be archived on a public website (along with other 
> related materials) for future research. Prior to release of such 
> information to the public, the Registry/Registrar may request that 
> certain information (including, but not limited to, communications 
> between the Registry/Registrar and ICANN, or other 
> privileged/confidential information) be redacted from the public
notice.
> 
>   In the event that such redactions make it difficult to convey to the

> public the nature of the actions being taken by the 
> Registry/Registrar, the General Counsel should work with the 
> Registry/Registrar on an appropriate notice to the public describing 
> the actions being taken and the justification for such actions.
> 
> Unless the Board decides otherwise, if the result of its resolution of

> the issue is that data elements in the registrar's Whois output will 
> be removed or made less accessible, ICANN should issue an appropriate 
> notice to the public of the resolution and of the reasons for ICANN's 
> forbearance from enforcement of full compliance with the contractual 
> provision in question.
> 
> 


--
Regards,


	-rwr






"In the modern world the intelligence of public opinion is the one 
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