Whois compliance models, and the confusion of the PC

[Kathy Kleiman]

Stephanie,
I support your comments and want to share why inclusion of as much of 
your work as possible in our NCSG comments is critical at this important 
moment in time.

1. You analyze the three models. ICANN needs this since everyone will be 
coming in advocating for "their model," but not necessarily analyzing 
all three (and certainly not from our NCSG perspective).

2. You point out that ICANN's underlying assumption for this 
GDRP-3-Models-Proceeding is wrong. On page 5 of the comments, under 
Approach, you write: "... it is stated that the goal is to maintain the 
existing WHOIS to the greatest extent possible. *We think the WHOIS has 
been broken for some years, and do not wish to maintain it."This is a 
critical insight. *The IPC and law enforcement want us to stay on the 
current path. They have grown accustomed to access to information that 
the GDRP and other data protection laws around the world say they are 
not entitled to. We cannot stay on the same path. Tx for calling it out 
so clearly.

3. You assess the complexities of the situation with the knowledge and 
background as someone deeply involved in the Canadian data protection 
law creation and now the European data protection commissioners and new 
GDPR rules. This is very important as ICANN's choices are complicated.

Here's to merging the best of all the drafted comments!
Best, Kathy

On 1/28/2018 10:45 PM, Stephanie Perrin wrote:
>
> If there is no support for my comments, I will withdraw them and 
> submit as myh own.  Since I am the most active member of the RDS PDP, 
> and your rep on the WHOIS review 2 team, and on the PPSAI IRT, and was 
> on the PPSAI, and on the WHOIS conflicts with Law Implementation 
> Advisory Group, I think I am in touch with reality.  Plus I have read 
> all the documents....and there are lots of things to digest.
>
> The ECO analysis is the most thorough I have seen.  I am not convinced 
> about their proposed clearinghouse model, but that is a future step.  
> Naturally they have not consulted the data commissioners, they 
> understand that the data commissioners cannot give them a 
> determination.  ICANN no doubt found that out when they visited the 
> Article 29 Working Party in January.
>
> I think you should read the sections on law enforcement very 
> carefully, circa page 59.  During the call that the IPC arranged this 
> week, Goran was very clear that the models ICANN proposed were not 
> actual working models, they were more like strawman documents.  They 
> are inviting comments on all aspects of the problem.  Read the ECO 
> document, then see if you still want to go with Model 3, when there is 
> really not a good implementation plan for it.  Also read the Article 
> 29 Statement on Cross Border Electronic Evidence, and the Directive on 
> Policing data.  I think the best option for managing all these 
> slightly separate initiatives, since they will have an impact on user 
> privacy  rights, is with the ECO model.  Of course I could be wrong, 
> and am happy to submit my comments separately if there is no support.
>
> Kind regards, Stephanie Perrin
>
> PS apologies for any typos, there is a giant 2 inch barcode going down 
> the centre of my screen, so I cannot read what I write at the moment.
>
> On 2018-01-28 22:24, Mueller, Milton L wrote:
>>
>> MM here reporting from the further reaches of the policy committee.
>>
>> So here as far as I can tell is the only response I have seen on the 
>> debate between models 3 and 2b in the PC:
>>
>> >I will try to get the revised comments on the models that have been
>>
>> >submitted in before I run forthe plane at 2 EDT...but that may not
>>
>> >happen.  The legal analysis will come next week, it is a lot harder and
>>
>> >more complex....but I want to get my questions on the table.  It will be
>>
>> >a long time before this is over....
>>
>> >
>>
>> >We need to endorse the ECO model very strongly, in my view.  While
>>
>> >option 3 looks good, it is rather unworkable.
>>
>> WHY is model 3 “unworkable?” No  explanation provided. In fact this 
>> is the inverse of the truth: Model 2b is literally and provably 
>> unworkable because it requires ICANN to set up a system of 
>> certification in a matter of 3 months, which everyone should be able 
>> to see is unworkable. Insofar as such an “interim” solution gets done 
>> in such an unworkably short period of time, it will only happen if it 
>> is dictated unilaterally by ICANN staff.
>>
>> Folks, we have spent the last _/15 years/_ trying to get something 
>> like model 3 as a privacy-respecting approach to Whois, and now that 
>> it is within our grasp, I cannot believe that people we thought were 
>> privacy advocates are telling us it is “unworkable.” WTF? Why is 
>> anyone in NCSG trying to get us trapped into an interim solution that 
>> will be dictated behind the scenes by special interests and will 
>> allow trademark lawyers and LEAs all kinds of loopholes to get access 
>> to Whois data that they shouldn’t have? This “interim” solution will 
>> almost certainly become a permanent one. If we have learned anything 
>> about how icANN works.
>>
>> Any sincere believers in model 2b should accept reality and say let’s 
>> do Model 3 in the short term and then work out a viable certification 
>> system long term.
>>
>> Right now, let us cohere behind model 3 it is both the right solution 
>> and our strongest bargaining position heading into the future.
>>
>> Dr. Milton L. Mueller
>>
>> Professor, School of Public Policy
>>
>> Georgia Institute of Technology
>>

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