[PC-NCSG] Fwd: Re: [NCSG-Discuss] Draft Comments for Whois Proceeding

Fri Aug 1 15:05:50 EEST 2014

Thanks to Kathy and everyone else who worked on this. I hope we can submit draft 6 as an NCSG statement.

Thanks again.

Amr

On Aug 1, 2014, at 1:27 PM, Maria Farrell <maria.farrell at gmail.com> wrote:

> My apologies, I made the call for consensus on the next-to-final draft.
> 
> Draft 6, what should be the final draft, closes for comments at 1500 UTC today. 
> 
> Speak now or hold your peace, colleagues.
> 
> All the best, Maria
> 
> 
> On 1 August 2014 12:20, Rafik Dammak <rafik.dammak at gmail.com> wrote:
> Thanks Stephanie for the edits and merging the comments.
> @Maria  can you please make the call for consensus. I think Avri agrees with the changes but she will confirm that.
> we have less than 12 hours to submit the comments.
> 
> Rafik 
> 
> 2014-08-01 19:24 GMT+09:00 Stephanie Perrin <stephanie.perrin at mail.utoronto.ca>:
> 
> Thanks for sending, I am having trouble with attachments but I got it.  I think I have made all the corrections now, here is the amended version 6, I believe you can post it.
> cheers Stephanie
> 
> On 2014-08-01, 6:11, Rafik Dammak wrote:
>> Hi Stephanie,
>> 
>> I think joy included her language in the attached document, can you please merge that with the latest draft you circulated?
>> Lesson learned: using a shared online document and avoid the word document versioning nightmare.
>> 
>> Best,
>> 
>> Rafik
>> 
>> ---------- Forwarded message ----------
>> From: "joy" <joy at apc.org>
>> Date: Jul 31, 2014 3:05 AM
>> Subject: Re: [NCSG-Discuss] Draft Comments for Whois Proceeding
>> To: <NCSG-DISCUSS at listserv.syr.edu>
>> Cc: 
>> 
>> Hi - thanks everyone for the effort on this
>> I have also added some information on the recent report of the UN High
>> Commissioner for Human Rights on the right to privacy in the digital age
>> - which includes aspects relevant for companies - plus one or two other
>> minor comments
>> Hope you get these in time!
>> Joy
>> 
>> On 31/07/2014 4:17 a.m., Kathy Kleiman wrote:
>> > Hi All,
>> > Attached is the revised version of the comments. It has the changes of
>> > Stephanie and Ed incorporated (tx you!) I have drafted it for Rafik's
>> > signature and submission on behalf of the NCSG (feel free to add an
>> > electronic signature, Rafik!).  (Track changes version showing edits
>> > attached)
>> >
>> > If you could please use _this version _of the revised comments for
>> > review and submission, that would be great.
>> > Best,
>> > Kathy
>> >
>> >
>> > -----------------------------------------------------------------------------------------------------------------------------------------------
>> >
>> > NCSG Response to the Questions of the
>> >
>> > /Review of the ICANN Procedure for Handling WHOIS Conflicts with
>> > Privacy Law /
>> >
>> > https://www.icann.org/public-comments/whois-conflicts-procedure-2014-05-22-en//
>> >
>> >
>> > **
>> >
>> > The Noncommercial Stakeholders Group represents noncommercial
>> > organizations and individual noncommercial users in their work in the
>> > policy and proceedings of ICANN and the GNSO. We respectfully submit
>> > as an opening premise that every legal business has the right and
>> > obligation to operate within the bounds and limits of its national
>> > laws and regulations. No legal business establishes itself to violate
>> > the law; and to do so is an invitation to civil and criminal
>> > penalties, in addition to reputational damage and a loss of the trust
>> > of their customers and business partner. ICANN Registries and
>> > Registrars are no different ? they want and need to abide by their laws.
>> >
>> > To that end, Registries and Registrars strive to comply with their
>> > national and local laws.They strive affirmatively and proactively to
>> > follow the laws and regulations under which they operate as legal
>> > entities. To do otherwise is to violate the purpose of a legal regime,
>> > to threaten the well being of the company, and to expose Directors,
>> > Officers and Employees to fines, jail, or civil litigation. In the
>> > matter of protection of personal and confidential information, which
>> > is a very newsworthy issue in the 21^st century, privacy practices are
>> > a matter of consumer trust, and therefore high risk for those
>> > operating an Internet business.Even if customers have obediently
>> > complied with demands for excessive collection and disclosure of
>> > personal information up to this point, in the current news furor over
>> > Snowden and the cooperation of business with national governments
>> > engaged in surveillance, this could change with the next news
>> > story.The Internet facilitates successful privacy campaigns.
>> >
>> > Thus, it is wise and timely for ICANN to raise the questions of this
>> > proceeding, /Review of the ICANN Procedure for Handling WHOIS
>> > Conflicts with Privacy Law/ (albeit at a busy time for the Community
>> > and at the height of summer; we expect to see more interest in this
>> > time towards the Fall and recommend that ICANN not construe the small
>> > number of comments received to date as a reflection of lack of
>> > interest). We submit these comments in response to the issues raises
>> > and the questions asked.
>> >
>> > *Background*
>> >
>> > The /ICANN Procedure for Handling Whois Conflicts with Privacy Law
>> > /was adopted in 2006 after years of debate on Whois issues. This
>> > Consensus Procedure was the first step of recognition that data
>> > protection laws and privacy law DO apply to the personal and sensitive
>> > data being collected by Registries and Registrars for the Whois database.
>> >
>> > But for those of us in the Noncommercial Users Constituency (now part
>> > of the Noncommercial Stakeholders Group/NCSG) who helped debate, draft
>> > and adopt this Consensus Procedure in the mid-2000s, we were always
>> > shocked that the ICANN Community did not do more. At the time, several
>> > Whois Task Forces were at work with multiple proposals which include
>> > important and pro-active suggestions to allow Registrars and
>> > Registries to come into compliance with their national and local data
>> > protection and privacy laws.
>> >
>> > At the time, we never expected this Consensus Procedure to be an end
>> > itself ? but the first of many steps. We are glad the discussion is
>> > now reopened and we support empowering Registrars and Registries to be
>> > in full compliance with their national and local data protection,
>> > consumer protection and privacy laws ? from the moment they enter into
>> > their contracts with ICANN.
>> >
>> > We note there have been a number of recent decisions in higher courts
>> > in various jurisdictions which impact the constitutional rights of
>> > citizens to be free from warrantless disclosure and retention of their
>> > personal information for law enforcement purposes.This reflects the
>> > time it takes for data protection issues to wend their way to the high
>> > courts for a ruling.We would urge ICANN, who otherwise sit on the
>> > cutting edge of Internet technical issues, to reflect on their role as
>> > a key global player in Internet governance.Do we lead or do we wait
>> > until we are dragged into Court, to realize our responsibilities to
>> > protect the fundamental rights of the citizens who depend on the
>> > Internet to participate in modern society?//
>> >
>> > II. Data Protection and Privacy Laws ? A Quick Overview of the
>> > Principles that Protect the Personal and Sensitive Data of Individuals
>> > and Organizations/Small Businesses
>> >
>> > It is important to stress that while the discourse about data
>> > protection requirements at ICANN has tended to focus on the European
>> > Union and its Data Commissioners, as represented in the Article 29
>> > Working Party on Data Protection, there are a great many countries
>> > which have data protection law in place, including Canada, Mexico,
>> > much of South America, Korea, Japan, Australia, New Zealand,
>> > Singapore, South Africa, and many others.It is therefore quite
>> > puzzling that ICANN does not assemble a working group to study the
>> > matter and develop a harmonized approach to the issue, rather than
>> > take this rather odd approach of forcing registrars and registries to
>> > break national and local law.
>> >
>> > It is also important to note that there are many levels of data
>> > protection law, from local municipal law to state and national
>> > law.There is also sectoral law which applies to certain sectors.It
>> > would be a reasonable approach to develop a policy that reflects
>> > harmonized best practice, and abide by the policy rather than engage
>> > in this adversarial approach to local law.Data protection law is
>> > overwhelmingly complaints based, so it is inherently difficult for
>> > registrars and registries to get a ruling from data protection
>> > commissioners absent a complaint and a set of facts.
>> >
>> > In this regard, we also find it puzzling that despite the fact that
>> > the Article 29 Working Party wrote to ICANN senior management to
>> > indicate that they have reviewed the matter and reached an opinion
>> > that the practices involving WHOIS do indeed violate EU law, ICANN has
>> > not taken that message and developed a policy that guides their data
>> > protection practices, starting with a clear statement of limited
>> > purpose for the collection, use, and disclosure of personal information.
>> >
>> > The NCSG held a privacy meeting at the London ICANN 50 meeting, which
>> > was quite well attended.While we did not specifically address or
>> > attempt to brainstorm this particular problem, we feel it is safe to
>> > summarize the following points:
>> >
>> > ?There is considerable interest, in civil society, in the protection
>> > of personal information at ICANN.
>> >
>> > ?Policies and procedures such as were developed for the 2013 RAA are
>> > very puzzling to those who are engaged in government and business in
>> > the privacy field.This is not 1995, when the EU Directive on data
>> > protection was passed and was still controversial.ICANN needs to catch
>> > up with global business practice, preferably by developing binding
>> > corporate rules which would take a harmonized approach to the
>> > differing local laws. It is not appropriate for all data protection to
>> > fall away in jurisdictions where there is not yet a data protection
>> > law that applies to the provision of internet services, including
>> > domain name registration.
>> >
>> > ?NCSG is ramping up a team of volunteers to provide more detailed
>> > expertise and input on a number of privacy and free speech
>> > issues.While civil society is inherently stretched and short of
>> > resources, this is an issue that they care deeply about, and our
>> > outreach has begun to bear fruit in engaging others who are outside
>> > the immediate sphere of ICANN membership.This is important as they are
>> > part of the constituency we seek to represent.
>> >
>> > ICANN spends considerable time on technical parameters, data accuracy,
>> > and retention.More time needs to be spent on data protection policy.In
>> > this respect, more expertise would be required as there is very little
>> > evidence of privacy expertise in the ICANN community.
>> >
>> > III*/./*Questions asked of the Community in this Proceeding
>> >
>> > The ICANN Review Paper raised a number of excellent questions. In
>> > keeping with the requirements of a Reply Period, these NCSG comments
>> > will address both our comments and those comments we particularly
>> > support in this proceeding.
>> >
>> > However we would first like to note that the paper appears to start
>> > from the position that the procedures involved in this waiver process
>> > simply need to be tweaked.Operating under the first principle that all
>> > business must comply with local law, there is a need for ICANN to
>> > embrace data protection law as a well recognized branch of law which
>> > codifies well recognized business best practices with respect to the
>> > confidentiality of customer data.We respectfully submit that, if ICANN
>> > had a professional privacy officer, it is highly unlikely that he/she
>> > would recommend to senior management that the current approach be
>> > entertained in 2014.
>> >
>> > 1.1Is it impractical for ICANN to require that a contracted party
>> > already haslitigation or a government proceeding initiated against it
>> > prior to being able to invoke the Whois Procedure?
>> >
>> > 1.1 Response: Yes, it is completely impractical (and ill-advised) to
>> > force a company to violate a national law as a condition of complying
>> > with their contract. Every lawyer advises businesses to comply with
>> > the laws and regulations of their field. To do otherwise is to face
>> > fines, penalties, loss of the business, even jail for officers and
>> > directors. Legal business strives to be law-abiding; no officer or
>> > director wants to go to jail for her company's violations. It is the
>> > essence of an attorney's advice to his/her clients to fully comply
>> > with the laws and operate clearly within the clear boundaries and
>> > limits of laws and regulations, both national, by province or state
>> > and local.
>> >
>> > In these Reply Comments, we support and encourage ICANN to adopt
>> > policies consistent with the initial comments submitted by the
>> > European Commission:
>> >
>> > -that the Whois Procedure be changed from requiring specific
>> > prosecutorial action instead to allowing ?demonstrating evidence of a
>> > potential conflict widely and e.g. accepting information on the
>> > legislation imposing requirements that the contractual requirements
>> > would breach as sufficient evidence.? (European Commission comments)
>> >
>> > We also agree with Blacknight:
>> >
>> > -?It's completely illogical for ICANN to require that a contracting
>> > party already has litigation before they can use a process. We would
>> > have loved to use a procedure or process to get exemptions, but
>> > expecting us to already be litigating before we can do so is, for lack
>> > of a better word, nuts.? (Blacknight comments in this proceeding).
>> >
>> > -
>> >
>> > 1.1a How can the triggering event be meaningfully defined?
>> >
>> > This is an important question. Rephrased, we might ask together ?what
>> > must a Registry or Registrar show ICANN in support of its claim that
>> > certain provisions involving Whois data violate provisions of national
>> > data protection and privacy laws?
>> >
>> > NCSG respectfully submits that there are at least four ?triggering
>> > events? that ICANN should recognize:
>> >
>> > -Evidence from a national Data Protection Commissioner or his/her
>> > office (or from a internationally recognized body of national Data
>> > Protection Commissioners in a certain region of the world, including
>> > the Article 29 Working Party that analyzes the national data
>> > protection and privacy laws) that ICANN's contractual obligations for
>> > Registry and/or Registrar contracts violate the data protection laws
>> > of their country or their group of countries;
>> >
>> > -Evidence of legal and/or jurisdictional conflict arising from
>> > analysis performed by ICANN's legal department or by national legal
>> > experts hired by ICANN to evaluate the Whois requirements of the ICANN
>> > contracts for compliance and conflicts with national data protection
>> > laws and cross-border transfer limits) (similar to the process we
>> > understand was undertaken for the data retention issue);
>> >
>> > -Receipt of a written legal opinion from a nationally recognized law
>> > firm or qualified legal practitioner in the applicable jurisdiction
>> > that states that the collection, retention and/or transfer of certain
>> > Whois data elements as required by Registrar or Registry Agreements is
>> > ?reasonably likely to violate the applicable law? of the Registry or
>> > Registrar (per the process allowed in RAA Data Retention
>> > Specification); or
>> >
>> > -An official opinion of any other governmental body of competent
>> > jurisdiction providing that compliance with the data protection
>> > requirements of the Registry/Registrar contracts violates applicable
>> > national law (although such pro-active opinions may not be the
>> > practice of the Data Protection Commissioner's office).
>> >
>> > The above list draws from the comments of the European Commission,
>> > Data Retention Specification of the 2013Registrar Accreditation
>> > Agreement, and sound compliance and business practices for the ICANN
>> > General Counsel's office.
>> >
>> > We further agree with Blacknight that the requirements for triggering
>> > any review and consideration by ICANN be: simple and straightforward,
>> > quick and easy to access.
>> >
>> > 1.3Are there any components of the triggering event/notification
>> > portion of the RAA's Data Retention waiver process that should be
>> > considered as optional for incorporation into a modified Whois Procedure?
>> >
>> > 1.3 Response:Absolutely, the full list in 1.1a above, together with
>> > other constructive contributions in the Comments and Reply Comments of
>> > this proceeding, should be strongly considered for incorporation into
>> > a modified Whois Procedure, or simply written into the contracts of
>> > the Registries and Registrars contractual language, or a new Annex or
>> > Specification.
>> >
>> > We respectfully submit that the obligation of Registries and
>> > Registrars to comply with their national laws is not a matter of
>> > multistakeholder decision making, but a matter of law and compliance.
>> > In this case, we wholeheartedly embrace the concept of building a
>> > process together that will allow exceptions for data protection and
>> > privacy laws to be adopted quickly and easily.
>> >
>> > 1.4Should parties be permitted to invoke the Whois Procedure before
>> > contracting with ICANN as a registrar or registry?
>> >
>> > 1.4 Response: Of course, Registries and Registrars should be allowed
>> > to invoke the Whois Procedure, or other appropriate annexes and
>> > specifications that may be added into Registry and Registrar contracts
>> > with ICANN. As discussed above, the right of a legal company to enter
>> > into a legal contracts is the most basic of expectations under law.
>> >
>> > 2.1Are there other relevant parties who should be included in this step?
>> >
>> > 2.1 Response: We agree with the EC that ICANN should be working as
>> > closely with National Data Protection Authorities as they will allow.
>> > In light of the overflow of work into these national commissions, and
>> > the availability of national experts at law firms, ICANN should also
>> > turn to the advice of private experts,such as well-respected law firms
>> > who specialize in national data protection laws. The law firm's
>> > opinions on these matters would help to guide ICANN's knowledge and
>> > evaluation of this important issue.
>> >
>> > 3.1How is an agreement reached and published?
>> >
>> > 3.1 Response. As discussed above, compliance with national law may not
>> > be the best matter for negotiation within a multistakeholder process.
>> > It really should not be a chose for others to make whether you comply
>> > with your national data protection and privacy laws. That said, the
>> > process of refining the Consensus Procedure, and adopting new policies
>> > and procedures, or simply putting new contract provisions, annexes or
>> > specifications into the Registry and Registrar contracts SHOULD be
>> > subject to community discussion, notification and review.But once the
>> > new process is adopted, we think the new changes, variations,
>> > modifications or exceptions of Individual Registries and Registrars
>> > need go through a public review and process. The results, however,
>> > Should be published for Community notification and review.
>> >
>> > We note that in conducting the discussion with the Community on the
>> > overall or general procedure, policy or contractual changes, ICANN
>> > should be assertive in its outreach to the Data Protection
>> > Commissioners. Individual and through their organizations, they have
>> > offered to help ICANN evaluate this issue numerous times. The Whois
>> > Review Team noted the inability of many external bodies to monitor
>> > ICANN regularly, but the need for outreach to them by ICANN staff
>> > nonetheless:
>> >
>> > *Recommendation 3:Outreach*
>> >
>> > *ICANN should ensure that WHOIS policy issues are accompanied by
>> > cross-community outreach, including outreach to the communities
>> > outside of ICANN with a specific interest in the issues, and an
>> > ongoing program for consumer awareness. (Whois Review Team Final Report)*
>> >
>> > This is a critical policy item for such outreach and input.
>> >
>> > 3.2If there is an agreed outcome among the relevant parties, should
>> > the Board be involved in this procedure?
>> >
>> > 3.2 Response: Clearly, the changing of the procedure, or the adoption
>> > of a new policy or new contractual language for Registries and
>> > Registrars, Board oversight and review should be involved. But once
>> > the new procedure, policy or contractual language is in place, then
>> > subsequent individual changes, variations, modifications or exceptions
>> > should be handled through the process and ICANN Staff ? as the Data
>> > Retention Process is handled today.
>> >
>> > 4.1Would it be fruitful to incorporate public comment in each of the
>> > resolution scenarios.
>> >
>> > 4.1 Response: We think this question means whether there should be
>> > public input on each and every exception?We respectfully submit that
>> > the answer is No. Once the new policy, procedure or contractual
>> > language is adopted, then the process should kick in and the
>> > Registrar/Registry should be allowed to apply for the waiver,
>> > modification or revision consistent with its data protection and
>> > privacy laws.Of course, once the waiver or modification is granted,
>> > the decision should be matter of public record so that other
>> > Registries and Registrars in the jurisdiction know and so that the
>> > ICANN Community as a whole can monitor this process' implementation
>> > and compliance.
>> >
>> > Step Five: Public notice
>> >
>> > 5.2Is the exemption or modification termed to the length of the
>> > agreement? Or is it indefinite as long as the contracted party is
>> > located in the jurisdiction in question, or so long as the applicable
>> > law is in force.
>> >
>> > 5.2 Response:We agree with the European Commission in its response,
>> >
>> > ?/By logic the exemption or modification shall be in place as long as
>> > the party is subject to the jurisdiction in conflict with ICANN rules.
>> > If the applicable law was to change, or the contacted party moved to a
>> > different jurisdiction, the conditions should be reviewed to assess if
>> > the exemption is still justified.?/
>> >
>> > //
>> >
>> > But provided it is the same parties, operating under the same laws,
>> > the modification or change should continue through the duration of the
>> > relationship between the Registry/Registrar and ICANN.
>> >
>> > 5.3Should an exemption or modification based on the same laws and
>> > facts then be granted to other affected contracted parties in the same
>> > jurisdiction without invoking the Whois Procedure.
>> >
>> > 5.3 Response. The European Commission in its comments wrote, and we
>> > strongly agree: /?the same exception should apply to others in the
>> > same jurisdiction who can demonstrate that they are in the same
>> > situation.? /Further, Blacknight wrote and we support: /?if ANY
>> > registrar in Germany, for example, is granted a waiver based on German
>> > law, than ALL registrars based in Germany should receive the same
>> > treatment.? /Once a national data protection or privacy law is
>> > interpreted as requiring and exemption or modification, it should be
>> > available to all Registries/Registrars in that country.
>> >
>> > Further, we recommend that ICANN should be required to notify each
>> > gTLD Registry and Registrar in the same jurisdiction as that of the
>> > decision so they will have notice of the change.
>> >
>> > We thank ICANN staff for holding this comment period.
>> >
>> > Respectfully submitted,
>> >
>> > Rafik Dammak
>> >
>> > Chairman, NCSG
>> >
>> > On behalf of the Noncommercial Stakeholders Group
>> >
>> >
>> >
>> 
> 
> 
> 
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