WHOIS Task Forces 1 2 3

WHOIS Task Forces 1 2 3

7 June 2005 - Minutes

ATTENDEES:
GNSO Constituency representatives:
Jordyn Buchanan - Chair
gTLD Registries constituency - Ken Stubbs
gTLD Registries constituency - David Maher
Non Commercial Users Constituency - Milton Mueller
Commercial and Business Users constituency - Marilyn Cade
Commercial and Business Users Constituency - David Fares
Intellectual Property Interests Constituency - Steve Metalitz
Internet Service and Connectivity Providers constituency - Maggie Mansourkia
Liaisons
At-Large Advisory Committee (ALAC) liaisons - Wendy Seltzer
GAC Liaison - Suzanne Sene

ICANN Staff:
Maria Farrell Farrell - ICANN GNSO Policy Officer
GNSO Secretariat - Glen de Saint Géry

Absent:
Registrars constituency - Paul Stahura
Registrars constituency - Tim Ruiz (alternate) - apologies
Registrars constituency - Tom Keller - apologies
Intellectual Property Interests Constituency - Niklas Lagergren - apologies
Registrars constituency - Ross Rader - apologies
Non Commercial Users Constituency - Marc Schneiders
Non Commercial Users Constituency - Kathy Kleiman - apologies
Non Commercial Users Constituency - Frannie Wellings
Commercial and Business Users Constituency - Sarah Deutsch - apologies
Internet Service and Connectivity Providers constituency - Tony Harris - apologies
Internet Service and Connectivity Providers constituency - Greg Ruth

MP3 Recording
Preliminary Summary

Agenda
1. Update on conflict with national law work item undertaken by Steve Metalitz and Kathy Kleiman.
2. Planning for Luxembourg meetings - GAC Workshop
Planning for Luxembourg meetings - GNSO Public Forum
3. Review Council discussion and terms of reference
4. Discuss work plan in light of the new terms of reference

1. Update on conflict with national law work item undertaken by Steve Metalitz and Kathy Kleiman.
Steve Metalitz reported that progress had been made on dividing the recommendation in 2:
- a recommendation for consensus policy
- a recommended procedure that staff would consider as a starting point in implementing a policy.
Kathy Kleiman would circulate a draft.

 Summary             Recommendation 2 – conflicts with national laws
Steve Metalitz and Kathy Kleiman are working offline on a revised draft and will circulate it to the list for discussion.

Actions

• There will be a discussion of the revised draft on next week’s call (Tuesday, June 14^th).

2. Planning for Luxembourg meetings - GAC Workshop
Suzanne Sene reported that the Government Advisory Committee (GAC) was planning a workshop on Sunday 10 July 2005 from 14:00 to 18:00, to which the GNSO, ccNSO, and ASO Councils would be invited as well as the WHOIS task force members. The council chairs of the ccNSO, GNSO and ASO, were asked to identify appropriate speakers and the GAC representatives would identify law enforcement speakers.
A closed session, meaning not open to the press, was planned to ensure the level of detail from law enforcement and to increase their comfort. The Supporting Organizations were being asked ensure that all parties would participate and it was envisaged that the entire GAC would participate rather than just the GAC working group. ICANN meeting organizers were working on the logistics of the venue. An agenda would be circulated via the Supporting Organization chairs.

Milton Mueller commented, that there appeared to be no representation for people who might be expert on individual rights against law enforcement activities and questioned whether it was a one-sided attempt to promote a particular view or was it intended to be a broad discussion on law enforcement?

Suzanne Sene responded that it was intended to be a broad discussion with the first session focused on law enforcement with the understanding that other issues would be addressed in subsequent meetings.

Milton Mueller noted that privacy had been deferred, as usual, to some date undetermined in the future.

Jordyn Buchanan thanked Suzanne Sene.

Planning for Luxembourg meetings - GNSO Public Forum

Summary                    Planning for Luxembourg

Suzanne Sene provided information on the GAC working session in Luxembourg on 10 July, 2005.   An agenda is expected to be circulated in approximately two weeks. The GNSO Council has invited the task force to be present during the GNSO open forum to address WHOIS issues. 

• The task force will propose to focus its time during the open forum on items 1 and 2.
• The task force will prepare for the forum a proposed list of questions it is seeking input onto act as a starting point for discussions in the Luxembourg GNSO open forum. 
• The task force will finalise the authoritative list of questions on or directly after next week's call and then send them out to the constituencies.

Actions

• Jordyn will send to the list a proposed list of questions for input ahead of next week’s call.  
• Task force members will provide input on the list of questions using the mailing list and also on next week’s call. 

3. Review Council discussion and terms of reference
4. Discuss work plan in light of the new terms of reference
Jordyn Buchanan reported:
- that the Council did not take action on the final report from the WHOIS task force with respect to improving notification and consent for the use of contact data in the Whois system. and the vote was deferred to the next council meeting on June 23, 2005.
- that the Council had approved the new terms of reference.
In summary there were 5 tasks:
1. Define the purpose of the WHOIS service in the context of ICANN's mission and relevant core values,
2. Define the purpose of the Registered Name Holder, technical, and administrative contacts, in the context of the purpose of WHOIS, and the purpose for which the data was collected. Use the relevant definitions from Exhibit C of the Transfers Task force report as a starting point
3. Determine what data collected should be available for public access in the context of the purpose of WHOIS.
One difference between this terms of reference and the previous terms of reference, was that it was in the scope of the task force to discuss what data should be gathered. However as it now stands, of the data gathered, what should be available to public access.
4. Determine how to improve the process for notifying a registrar of inaccurate WHOIS data, and the process for investigating and correcting inaccurate data. A response based mechanism relating to issues dealing with accuracy.
5. Determine how to resolve differences between a Registered Name Holder's, gTLD Registrar's, or gTLD Registry's obligation to abide by all applicable laws and governmental regulations that relate to the
WHOIS service, as well as the obligation to abide by the terms of the agreements with ICANN that relate to the WHOIS service. Work being undertaken by Steve Metalitz and Kathy Kleiman.

The numbering did not indicate any specific order of priority.

Marilyn Cade reported that Maria Farrell, the GNSO Policy Officer, was given a short data gathering assignment to report back to the GNSO council and the combined WHOIS task force on a review of the top 10 registrars and a random selection of 10 other registrars to determine how registrars make registrants aware of their obligations to provide contact information for public display via the WHOIS service.
On the terms of references, she noted that the GNSO council would continue to be very closely involved and require frequency reports on the task force progress and be able to offer assistance or reports at any point if the task force deemed it necessary.

Jordyn Buchanan suggested that tasks one and two, defining the purpose of WHOIS and the contacts seemed to be preliminary work in framing tasks three and four. It would be difficult to decide what information should be publicly accessible without a notion of the purpose and what the contacts were for.
He suggested a serial work plan approach.

Steve Metalitz noted that for task 4, Ross Rader had put forward a proposal and suggested building on what had already been done. He further commented that the IPC and the majority of the constituencies on the council believed the reference was too narrow, and in view of the work done on investigating inaccurate data, it should be made a priority.

Marilyn Cade suggested dividing up the tasks into 3 initiatives and having a work plan for each initiative so that they could be advanced simultaneously.

Initiative 1 - tasks one, two
Initiative 2 - task 4
Initiative 3 - task 5

Milton Mueller commented that if a work plan was being put forward, task 5 could be advanced on a parallel track. With respect to tasks 1, 2, 3 & 4 it was clear that the purpose should first be dealt with before the other tasks could be resolved. He noted that under data protection law and norms, if data was to be collected there had to be a clearly defined purpose and that purpose indicated what data was needed or not needed, how much resources should be invested in making it accurate, what the states of accuracy were, what needed to be publicly accessible and what did not. Thus it appeared that nothing could be done before task 1 was resolved. He did not agree that the order of the tasks did not reflect an ordered priority. The sequence was clear: first define the purpose of the WHOIS service in the context of the ICANN mission, second define the purpose of the the specific data elements, and third define what should be available for public access, and once that was done, accuracy could be addressed.

Marilyn Cade, did not disagree with Milton Mueller, but attempted to clarify council's intention that work needed to be advanced on tasks 1 and 2, and that some amount of data gathering and discussion needed to occur in an interactive way as opposed to sequential.
It was suggested requesting clarification from Bruce Tonkin as the GNSO Council chair on task 4.

Steve Metalitz agreed on separate work plans for tasks 1,2 & 3 together, 4 & 5 but did not agree with seeking clarification on task 4 as the task force had been involved in drafting the terms of reference. He believed Ross Rader's accuracy proposal to be a good starting point for task 4. He questioned Bruce Tonkin instructing the staff with regard to supporting the task force and setting priorities.

Jordyn Buchanan clarified that Maria Farrell had been asked to gather data in support of a council's vote on recommendation 1.

Milton Mueller commented the current process for investigating and correcting inaccurate data was flawed, as a consequence of the lack of attention paid to privacy and the NCUC believed that it would only be resolved on a consensus basis when tasks 1, 2 & 3 were resolved. Thus the process envisaged in the terms of reference was seen as a hierarchical step by step way of resolving those issues and by going down the hierarchy the level of cooperation from the NCUC other constituencies would increase.

Marilyn Cade, in the interest of advancing work between now and Luxembourg, proposed:
- parking task 4 and developing a work plan for tasks 1,2 & 3 and 5 so that there could be a meaningful discussion at the public comment forum in Luxembourg.
- re visiting the work plan discussion on task 4 at a time when there was full representation from all constituencies, either in Luxembourg or on a conference call.

Jordyn Buchanan stressed that it was important to advance work between now and Luxembourg, that he was sensitive to Steve Metalitz's concern that work on task 4 should not be abandoned and proposed:
- focusing work around tasks 1 and 2 (with limited ability to go forward on task 3)
- to continue advancing task 5 as well and maybe discuss it next week on a call
- to continue to allow and encourage the development of Ross Rader's accuracy proposal or any other item relating to accuracy, on the list without completely parking it

Steve Metalitz was opposed to Marilyn Cade and Jordyn Buchanan's proposal of parking task 4.

Jordyn Buchanan summarised the proposal
- the next few calls focusing on task 5, then on tasks 1 and 2.
- to discuss task 4 with representatives from all the constituencies on a task force call immediately following Luxembourg, 19 July 2005 and to encourage work on the accuracy topic on the list.

David Fares noted that there was a commitment from the task force to address accuracy and Jordyn Buchanan confirmed that there were no dissenting voices on the call.

 Summary      Task force terms of reference* and workplan.
There was a discussion on the order in which work items in the task force terms of reference will be tackled.  (The work items of the terms of reference are included at the end of this document as the discussion referred to them by number.)

Decisions* (Steve Metalitz objected to this ordering of work items)

• The task force calls before the Luxembourg meeting will focus on items 5, 1 and 2. If possible within the time, work will be done on item 3. Work on the list will be done on item 4, based on Ross Rader’s proposal on accuracy.
• After the Luxembourg meeting, the task force will resuming work on item 4.

Actions

• Jordyn will forward Ross Rader’s proposal on accuracy to the mailing list.

• The task force will propose to focus its time during the open forum on items 1 and 2.
• The task force will prepare for the forum a proposed list of questions it is seeking input onto act as a starting point for discussions in the Luxembourg GNSO open forum. 
• The task force will finalise the authoritative list of questions on or directly after next week's call and then send them out to the constituencies.

Actions

• Jordyn will send to the list a proposed list of questions for input ahead of next week’s call.  
• Task force members will provide input on the list of questions using the mailing list and also on next week’s call. 

4                               Next task force call:

The next call will be held on Tuesday, June 14^th 2005 and will deal with:

·        The draft recommendation 1 on conflicts with national law, and
·  The proposed list of questions to solicit input on whois at the GNSO public forum in Luxembourg.

* WHOIS Task Force terms of reference tasks:

(1) Define the purpose of the WHOIS service in the context of ICANN's mission and relevant core values, international and national laws protecting privacy of natural persons, international and national laws
that relate specifically to the WHOIS service, and the changing nature of Registered Name Holders.

(2) Define the purpose of the Registered Name Holder, technical, and administrative contacts, in the context of the purpose of WHOIS, and the purpose for which the data was collected. Use the relevant definitions from Exhibit C of the Transfers Task force report as a starting point

(3) Determine what data collected should be available for public access in the context of the purpose of WHOIS. Determine how to access data that is not available for public access.

(4) Determine how to improve the process for notifying a registrar of inaccurate WHOIS data, and the process for investigating and correcting inaccurate data. Currently a registrar "shall, upon notification by any person of an inaccuracy in the contact information associated with a Registered Name sponsored by Registrar, take reasonable steps to investigate that claimed inaccuracy. In the event Registrar learns of
inaccurate contact information associated with a Registered Name it sponsors, it shall take reasonable steps to correct that inaccuracy."

(5) Determine how to resolve differences between a Registered Name Holder's, gTLD Registrar's, or gTLD Registry's obligation to abide by all applicable laws and governmental regulations that relate to the
WHOIS service, as well as the obligation to abide by the terms of the agreements with ICANN that relate to the WHOIS service. [Note this task refers to the current work in the WHOIS task force called 'Recommendation 2', A Procedure for conflicts, when there are conflicts between a registrar's of registry's legal obligations under local privacy laws and their contractual obligations to ICANN.]

Jordyn Buchanan thanked all the task force members for participating.

The WHOIS task force call ended at 17:35 CET