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RE: [registrars] Motion to Adopt: Whois Conflicts
- To: <registrars@xxxxxxxx>
- Subject: RE: [registrars] Motion to Adopt: Whois Conflicts
- From: "Bruce Tonkin" <Bruce.Tonkin@xxxxxxxxxxxxxxxxxx>
- Date: Thu, 21 Jul 2005 07:18:42 +1000
- Sender: owner-registrars@xxxxxxxxxxxxxx
- Thread-index: AcWK8x+J06D0v5oyTemKFHPCgaZaLwCGfVbA
- Thread-topic: [registrars] Motion to Adopt: Whois Conflicts
Hello Ross,
I endorse the motion.
Regards,
Bruce
> -----Original Message-----
> From: owner-registrars@xxxxxxxxxxxxxx
> [mailto:owner-registrars@xxxxxxxxxxxxxx] On Behalf Of Ross Wm. Rader
> Sent: Sunday, 17 July 2005 6:05 PM
> To: Ross Rader
> 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-preli
> minary.html.
> >
> > 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
> indispensable condition for social progress."
> - Charles W. Eliot (1834 - 1926)
>
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