Option 1
Stephanie E Perrin
stephanie.perrin at MAIL.UTORONTO.CA
Wed May 5 13:26:04 EEST 2021
Please read the legal opinions Milton.
Stephanie
On 2021-05-05 11:44 a.m., Mueller, Milton L wrote:
> *EXTERNAL EMAIL:*
>
> Thanks, Manju
>
> As you note, but were too polite to say, the “hold the line” position
> articulated by Kathy and Stephanie completely ignores the main issue
> facing us, which is the guidance. It is clear from your statement that
> their position does not have support among the EPDP representatives of
> NCSG, not because it is wrong but because it is irrelevant.
>
> On “keeping the guidance from becoming a requirement,” I think we can
> actually win on that. I see no ability for an overwhelming consensus
> to develop on making it mandatory. I don’t think our team members or
> the CPs have ever disagreed on that.
>
> I do think that there are differences about what the guidance should
> be. The registrars’ insistence on equating the legal person
> distinction with the presence or absence of personal data in the
> record is a point of disagreement. If we go that way, the registration
> process becomes a lot more complicated and expensive, the registrars
> become more involved in verifying the Registrant’s identity, and they
> acquire liability and responsibility, which we don’t want. Keep the
> guidance as simple as possible and let the motto be: Keep the
> registrant in control.
>
> Dr. Milton L Mueller
>
> Georgia Institute of Technology
>
> School of Public Policy
>
> Internet Governance Project <https://internetgovernance.org/>
>
> *From:*NCSG-Discuss <NCSG-DISCUSS at LISTSERV.SYR.EDU> *On Behalf Of *???
> Manju Chen
> *Sent:* Wednesday, May 5, 2021 2:42 AM
> *To:* NCSG-DISCUSS at LISTSERV.SYR.EDU
> *Subject:* Re: Option 1
>
> Hi all,
>
> I agree with Stephanie and Kathy that we have to 'hold the line', but
> my idea of 'the line' is a bit different than the simple 'status quo'.
>
> In my opinion, the line we should definitely hold is 'to keep the
> guidance from becoming a requirement'. So we maintain that 'registrars
> should be able to choose to differentiate or not' but develop guidance
> for if they wish to do so. Basically Milton's scenario 3.
>
> I'd also like to point out that according to Volker's statement on
> behalf of RrSG, they are not against developing guidance either. In
> fact, the RrSG has provided a table as their proposed guidance on this
> matter. I would encourage us to work with CPs on refining the table
> and make sure the final guidance resembles RrSG's table instead of the
> detailed instructions currently proposed by the surveillance caucus.
>
> Best,
>
> Manju
>
> On Wed, May 5, 2021 at 11:39 AM Mueller, Milton L <milton at gatech.edu
> <mailto:milton at gatech.edu>> wrote:
>
> Kathy, Stephanie, and NCSG members:
>
> Personally, I would have no problem falling in line with your
> position. But there are two fatal flaws that you need to address.
> First, you are describing only what _/we/_ want and not thinking
> at all about how you get consensus. Second, your description of
> what we want does NOT correspond to what will actually happen if
> we “hold the line.” As much as I would like to promote harmony and
> unity among NCSG EPDP representatives, I don’t think you have
> thought things through.
>
> I know perfectly well that we don’t want any differentiation and
> that the registrars don’t either. What you are overlooking is that
> the other half of the EPDP does want it, and the board will see
> the EPDP as deadlocked. So Option 1 will make you feel very
> self-righteous in the short term, but what happens next? You are,
> as I will show, leading us down a blind alley.
>
> I can think of 3 scenarios we can discuss as a basis for action.
>
> Scenario 1.
>
> We “hold the line,” and we revert to Phase 1 recommendations
> unchanged. There is _/no guidance/_. The other half of the EPDP
> just gives up and accepts it. This result is not bad, I admit, if
> that last bit happens.
>
> But what are the Phase 1 recommendations? You have misrepresented
> the “status quo” as not differentiating legal and natural. WRONG.
> What will happen under this option is that any registrar or
> registry can choose to differentiate in any way they like. And
> there will be no guidance that you can appeal to if they do it
> wrong. You say you don’t want registrars asking users whether they
> are legal or natural. Well, sorry, that can happen under your
> Option 1. A deadlock on EPDP means that differentiation is neither
> prohibited or required, it is up to the contracted parties. Many
> registrars won’t do it, but some will. Registries could do it,
> too. This is the “let the market decide” option. Stephanie has
> become a libertarian, I guess.
>
> Scenario 2
>
> Scenario 1 assumes the other side accepts defeat. But what if we
> “hold the line,” and the other half of the EPDP doesn’t accept it?
> The European Commission, the US justice department, the GAC, SSAC,
> and of course the IPC/BC and ALAC join a strong chorus telling the
> board “something must be done.” The Board is influenced, and
> refuses to accept the recommendation, as it has done with the SSAD
> (which the same group of stakeholders opposed). We have seen the
> Board cave to GAC and governmental demands again and again, the
> latest example being “curative rights” for IGO acronyms, which the
> GNSO never approved. Worse, the EC may modify its NIS2 legislation
> to require ICANN to differentiate. The US congress could
> intervene. The issue festers for another three – five years.
> Several powerful players start attacking the multistakeholder
> process. Maybe ICANN corrupts its process once again.
>
> Scenario 3
>
> Scenario 3 is that we don’t require differentiation of legal
> persons, but we develop consensus guidance on how contracted
> parties should do it if they choose to do it. This is the most
> likely scenario, and it’s one that your position paper completely
> ignores. If you do want guidance, the approach to guidance that I
> have suggested is best, because it is a very lightweight process
> of self-identification by registrants. By offering some
> differentiation it may defuse the opposition of the other
> stakeholders. On the other hand Stephanie’s complicated, expensive
> and power-surrendering approach is not the kind of guidance we want.
>
> By now it should be clear to anyone who’s read this far that
> Scenario 1 is not as wonderful as you say and may not be possible.
> The EPDP is already deeply invested in developing guidance about
> how registrars should and should not differentiate. We have been
> working on it for weeks. Unless something changes radically in the
> next week, we will actually produce some guidance about
> differentiation. So, I suggest that we confine our debate to
> Scenario 2: the developing of nonbinding guidance. I suggest again
> that allowing registrants to choose to identify their registration
> as one of a legal person, with their data published or
> automatically available via SSAD, creates a path to consensus and
> to resolving the issue, whereas your preferred path does not.
>
> To conclude, I call your attention to a pathology that is
> paralyzing nearly all of ICANN’s working groups. Defining your
> position and “holding the line” is a strategy that all the SGs and
> ACs seem to adopt now. It turns all these deliberations into a
> bunch of people re-stating their position again and again for 3-4
> years, re-litigating issues endlessly, avoiding any serious middle
> ground. No thought is given to finding a solution that achieves a
> critical mass of consensus.
>
> Anyone who wants to be a serious participant in developing the
> NCSG’s position in EPDP has to answer a very basic question:
>
> How does this end?
>
> What is your scenario for achieving the level of agreement needed
> to pass a policy?
>
> Looking forward to your response.
>
> Dr. Milton L Mueller
>
> Georgia Institute of Technology
>
> School of Public Policy
>
> Internet Governance Project <https://internetgovernance.org/>
>
> *From:*NCSG-Discuss <NCSG-DISCUSS at LISTSERV.SYR.EDU
> <mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU>> *On Behalf Of
> *kathy at DNRC.TECH <mailto:kathy at DNRC.TECH>
> *Sent:* Tuesday, May 4, 2021 5:35 PM
> *To:* NCSG-DISCUSS at LISTSERV.SYR.EDU
> <mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU>
> *Subject:* Option 1
>
> Tx to Milton, Stephanie, Manju, Tapani, Farzi, Mark Leiser, Kim
> von Arx and everyone else who commented on our dicussion of
> options for the EPDP.
>
> As it's time to wrap up this issue so our EPDP members can present
> our view to the EPDP Group, I co-wrote the email Stephanie posted
> earlier today (attached below too). Best regards, Kathy
> ------------------------------------------------------------------------
>
> Fellow NCSG members,
>
> >We would like to work together to share our rationale for Option 1 –
>
> maintaining the status quo and not asking further follow-up
> questions, mandatory or otherwise, about legal and natural
> persons. While the EPDP phase 2a discussions have been an
> educational and interesting exercise, we are not under any
> obligation to change the existing policy, or further complicate it.
>
> As we have all discussed, legal/natural person questions are very
> complicated for many of our members who are often noncommercial
> and non-profit organizations whose structure and ways of obtaining
> domain names do not resemble those of the large corporations other
> stakeholder groups represent. Our members may have many layers of
> privacy protection in less-well-known sections of the GDPR, other
> local law, Constitutions and international conventions.
>
> We learned that recent studies show that 50% of gTLD domain name
> registrations are for natural persons – and at least 25% more have
> overlapping entity and personal data (e.g., the organization name
> has personal data in it and is thus protected as personal data).
>
> Stephanie and Kathy shared their concerns for legal/natural person
> questions during our long work on the Proxy and Privacy
> Accreditation Working Group. We worked closely with the
> Registrars Stakeholder Group to protect registrant privacy –
> including Battered Women’s Shelters, family planning clinics, and
> girls educational institutions – all of which may be legal
> entities, but have protectable data due to obvious danger from
> disclosure in certain countries.
>
> */In light of the complicated world around us, we support Option
> 1- the Status Quo. /* We ask the NCSG to adopt this as our stance.
> *Based on the existing policy which makes differentiation of
> legal/natural persons optional for each registrar, we believe we
> already have the**
>
> *- best way to fight DNS Abuse,*
>
> *- best way to protect individuals and noncommercial
> organizations, and*
>
> *- best way to follow GDPR and other applicable human rights
> and free speech laws*
>
> /Therefore, we recommend NCSG “hold the line” and stick with
> Option 1./*
>
> /As the Registrars wrote in their EPDP Statement on Thursday April
> 29: /*/We have heard plenty of vocal support in this group to
> [differentiate between legal and natural persons in a mandatory
> fashion], but to date the RrSG have not heard any compelling
> reason to create policy that makes this dramatic shift to the
> domain registration landscape./*
>
> *We agree. * Nothing will stop other stakeholder groups from
> demanding further disclosure of data, and lobbying other parties
> including governments. *What we can do in ICANN is come up with
> the best solution for us at this time.*
>
> Many thanks to the members of our NCSG EPDP Team for your hard
> work. This has been a long road. With new studies, new information
> and legal opinions, we think we have a clear and strategic path
> forward. We believe our position to be closely aligned with that
> of the Registrar Stakeholder Group, which they articulated on
> April 29 (see below).
>
> Best, Kathy Kleiman and Stephanie Perrin
>
> ---------------------------------------------------------
> The Registrar Stakeholder Group issued their position statement on
> Thursday (4/29):
>
> The members of the RrSG EPDP team have participated in this
> process in good faith since day one and will continue to do so;
> however, we need to be crystal clear that members of our
> Stakeholder Group, whom we are here to represent, have voiced and
> recently reconfirmed their strong opposition to any policy coming
> out of this group that makes differentiation between natural and
> legal persons for domain registrations mandatory.
>
> We have heard plenty of vocal support in this group to do just
> that, but to date the RrSG have not heard any compelling reason to
> create policy that makes this dramatic shift to the domain
> registration landscape. The Contracted Party can make the most
> accurate assessment of their own legal, technical, and commercial
> risks and obligations, and is the only party that can determine
> what level of risk they should assume. The scope of this EPDP
> Phase 2a is to consider if changes are required for the relevant
> Recommendation; it has become clear through this process that no
> such changes are required
>
> To the extent this group can focus its energies on guidance to
> contracted parties which choose on their own to make this
> differentiation, we continue to believe that is a worthwhile
> exercise. We believe that guidance materials including educational
> information provided by ICANN in multiple languages would help
> contracted parties educate registrants and this would be a
> valuable effort.
>
> That said, based on analysis done by our stakeholder group's
> members, we reject the notion that the majority of registered
> domain names are registered to legal entities. We further remind
> this team that we have not yet seen evidence that increased
> publication of registration data will address any of the problems
> which have been mentioned so far in this phase, and that the
> registration data is reliably and promptly available to those who
> do have a legitimate reason to access it.
>
> Finally we note that this statement represents the official
> position of the Registrar Stakeholder group, and statements from
> members of other groups participating in the EPDP do not represent
> our group’s position.
>
> /(Source: Transcript of EPDP-Phase 2A Team Call, 29 April 2021,
> Statement of Volker Greimann on behalf of the Registrars
> Stakeholder Group read into the record)/
>
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