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

Fri Aug 1 21:34:25 EEST 2014

Hi Maria,

thank you, I think we already passed the deadline for comment, can we
consider that the comments are endorsed and ready to be submitted?

Best,

Rafik

2014-08-01 20:27 GMT+09:00 Maria Farrell <maria.farrell at gmail.com>:

> 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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