Option 1
Stephanie E Perrin
stephanie at DIGITALDISCRETION.CA
Wed May 5 17:29:15 EEST 2021
I agree that the RrSg work on this is useful and to be encouraged, but I
think the only way to keep it from becoming mandatory, either through
policy or through inclusion in their contracts or through the upcoming
accuracy pdp is to make it voluntary RrSg advice, not EPDP policy or
guidance. It is well within their mandate to publish it themselves and
you can see from the comments on the google document, the pressure to
make options MUST instead of May Wish to......
cheers Stephanie
PS there is also a big question of co-controller liability on the part
of ICANN, for the accuracy and reliability of this guidance
On 2021-05-05 2:42 a.m., 陳曼茹 Manju Chen wrote:
> 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
> *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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