From avri  Tue Jul  1 18:10:21 2014
From: avri (Avri Doria)
Date: Tue, 01 Jul 2014 11:10:21 -0400
Subject: [PC-NCSG] Fwd: [] Survey questions: rproposed changes
In-Reply-To: <2573768D5EDD4F64B7ED01B394BF0BA5@ZaparazziL11>
References: <2573768D5EDD4F64B7ED01B394BF0BA5@ZaparazziL11>
Message-ID: <53B2CF5D.5000300@acm.org>


fyi

This is a version of the question currently being edited for the review.

I am currently doing my review off of this base, and would be happy to
include the comments of others.

avri


-------- Original Message --------
Subject: 	[gnso-review-dt] Survey questions: rproposed changes
Date: 	Tue, 1 Jul 2014 12:15:06 +0200
From: 	BRG <philip at brandregistrygroup.org>
To: 	<gnso-review-dt at icann.org>



Hi everyone,
Let me say I think the starting point and breadth of the survey is
excellent. This is no easy task.

Please find attached a number of proposed changes to the survey.
The changes in part reflect my role as a previous Names Council chair,
GNSO council member, Constituency member, and working party member of
the 2008 GNSO council reform. I tried to think through how I would
manage in answering the questions, and where I failed, have proposed
changes.

I have proposed a new section for NomCom as this may help with responses
putting all the relevant questions in one place. NomCom appointees are a
different flavour to other groups, and the questions need to reflect this.

I have also expanded a bit the final section - where I have added
Chuck's substantive proposals - and indicated support to his other comments.

In doing our work, I have reviewed the answers this group got from the
SIC about structure. It is relevant also for us to remember the Board's
original September resolution (below) on the review. The Board expected
the review to be forward looking and we should fulfil that.

Philip
https://www.icann.org/resources/board-material/resolutions-2013-09-28-en


In its resolution <https://www.myicann.org/gnso-review?language=es>of 28
September 2013 the ICANN Board stated:

?/The expansion of the TLD space has increased the number and variety of
stakeholders participating in GNSO policy making and a review needs to
take place on schedule to examine whether the current model meets the
needs of *a new generation* of stakeholders. /

//

/GNSO Structure is unlikely to accommodate the anticipated new stream of
stakeholders resulting from the expansion of the TLD space. The GNSO
Review will be an important vehicle for considering and addressing this
issue. *The unbalance that is already occurring* needs to be addressed
by the GNSO Review. /?










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From rafik.dammak  Tue Jul  8 02:07:48 2014
From: rafik.dammak (Rafik Dammak)
Date: Tue, 8 Jul 2014 08:07:48 +0900
Subject: [PC-NCSG] Fwd: Response to Statement made during the ICANN 50
 Public Forum by GNSO's Stakeholder Groups and Constituencies
In-Reply-To: <A9AABBBF-5A9D-4E8A-89F2-7E8ACDB91FBA@shinkuro.com>
References: <A9AABBBF-5A9D-4E8A-89F2-7E8ACDB91FBA@shinkuro.com>
Message-ID: <CAH5sThmf21S7g-9SbUaugO21u9NOHJaiXNVK8=N2A23kYpsr0w@mail.gmail.com>

Hi everyone,

below the response from Steve about the joint statement.

Rafik


---------- Forwarded message ----------
From: Steve Crocker <steve at shinkuro.com>
Date: 2014-07-08 2:30 GMT+09:00
Subject: Response to Statement made during the ICANN 50 Public Forum by
GNSO's Stakeholder Groups and Constituencies
To: mllemineur at gmail.com, William Drake <wjdrake at gmail.com>,
rafik.dammak at gmail.com, krosette at cov.com, Elisa Cooper <
Elisa.Cooper at markmonitor.com>, tonyarholmes at btinternet.com, Michele Neylon
- Blacknight <michele at blacknight.com>, Keith Drazek <
keith.drazek at neustar.biz>, Jonathan Robinson <jonathan.robinson at ipracon.com>
Cc: "Stephen D. Crocker" <steve at shinkuro.com>, Icann-board ICANN <
icann-board at icann.org>, Theresa Swinehart <theresa.swinehart at icann.org>,
David Olive <David.Olive at icann.org>


Dear GNSO?s Stakeholder Groups and Constituencies,

On behalf of the ICANN Board I thank you for your statement at the ICANN
public forum on 26 June with regards to ICANN accountability.  It's copied
below for reference.

The Board heard your statement and we agree that trust in ICANN's
accountability processes and mechanisms is of great importance to present
and future success.  We look forward to your active participation in the
already planned accountability track along with the rest of the community.
This will be, as you note in your statement, an important area of ICANN?s
work.  And let me emphasize ?your active participation.?  This cannot be
done without you.

As you know, ICANN?s efforts to improve the accountability mechanisms are
ongoing.  The work that involves the community includes the work of the AoC
ATRT process, with the most recent developments reflected in the Board
approved ATRT2 recommendations during the ICANN 50 meeting.

Thank you again for your input and we look forward to your continued work
in this area.

Kind regards,

Steve Crocker

Chairman, ICANN Board

P.S. I hope I included everyone who participated in your statement.  If
not, please accept my apologies and forward to all the appropriate people.


*Statement made during the ICANN 50 Public Forum*
I?m Keith Drazek, I?m Chair of the Registries Stakeholder Group, with me
are the leaders of all of the GNSO?s Stakeholder Groups and Constituencies.

I?m happy to report that the GNSO community took up Fadi?s challenge from
the Opening Ceremony to seek harmony this week in London. Instead of a song
or two, the statement we?re about to read represents an unprecedented --
yes unprecedented -- event. It only took us 50 meetings, but I think the
rarity of what you?re witnessing this afternoon sends a very strong message
about our views.  The GNSO community, with all our diversity and
occasionally competing interests, has come together to unanimously support
the following:

The entire GNSO joins together today calling for the Board to support
community creation of an independent accountability mechanism that provides
meaningful review and adequate redress for those harmed by ICANN action or
inaction in contravention of an agreed upon compact with the community.

This deserves the Board's serious consideration - not only does it reflect
an unprecedented level of consensus across the entire GNSO community, it is
a necessary and integral element of the IANA stewardship transition.

True accountability does not mean ICANN is only accountable to itself, or
to some vague definition of "the world."  It does not mean that governments
should have the ultimate say over community policy without regard to the
rule of law.  Rather, the Board's decisions must be open to challenge and
theBoard cannot be in a position of reviewing and certifying its own
decisions.

We need an independent accountability structure that holds the ICANN Board,
Staff, and various stakeholder groups accountable under ICANN's governing
documents, serves as an ultimate review of Board/Staff decisions, and
through the creation of precedent, creates prospective guidance for the
board, the staff, and the entire community.

As part of the IANA stewardship transition, the multi-stakeholder community
has the opportunity and responsibility to propose meaningful accountability
structures that go beyond just the IANA-specific accountability issues.  We
are committed to coming together and developing recommendations for
creation of these mechanisms.  We ask the ICANN Board and Staff to fulfill
their obligations and support this community driven, multi-stakeholder
initiative.
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From rafik.dammak  Wed Jul  9 09:38:50 2014
From: rafik.dammak (Rafik Dammak)
Date: Wed, 9 Jul 2014 15:38:50 +0900
Subject: [PC-NCSG] Call for candidates - GNSO Liaison to the GAC
Message-ID: <CAH5sThkG1GbJQrE1+JG1cZ-D9A+MjsspO0M37+Nrj+C=eYFiZA@mail.gmail.com>

Hello,

we should send an application of candidate(s) for the GNSO liaison to the
GAC.
the PC should start the process and the deadline is the end of this month.

Best,

Rafik

---------- Forwarded message ----------
From: Glen de Saint G?ry <Glen at icann.org>
Date: 2014-07-09 7:04 GMT+09:00
Subject: Call for candidates - GNSO Liaison to the GAC
To: Rafik Dammak <rafik.dammak at gmail.com>
Cc: "gnso.secretariat at gnso.icann.org" <gnso.secretariat at gnso.icann.org>





Dear All,

Please find attached the call for candidates for the GNSO Liaison to the
GAC. The attached document outlines amongst others the process for
applications - please note that the leadership of each Stakeholder Group /
Constituency is expected to submit the application of its candidate(s), by
31 July 2014 at the latest to the GNSO Secretariat (
gnso.secretariat at gnso.icann.org).

Thank you.
Kind regards,

Glen

Glen de Saint G?ry
GNSO Secretariat
gnso.secretariat at gnso.icann.org
http://gnso.icann.org
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From avri  Wed Jul  9 15:19:13 2014
From: avri (Avri Doria)
Date: Wed, 09 Jul 2014 08:19:13 -0400
Subject: [PC-NCSG] Call for candidates - GNSO Liaison to the GAC
In-Reply-To: <CAH5sThkG1GbJQrE1+JG1cZ-D9A+MjsspO0M37+Nrj+C=eYFiZA@mail.gmail.com>
References: <CAH5sThkG1GbJQrE1+JG1cZ-D9A+MjsspO0M37+Nrj+C=eYFiZA@mail.gmail.com>
Message-ID: <53BD3341.6000303@acm.org>

hi,

Do we have an ex council member who wants the job?

avri


On 09-Jul-14 02:38, Rafik Dammak wrote:
> Hello,
> 
> we should send an application of candidate(s) for the GNSO liaison to
> the GAC.
> the PC should start the process and the deadline is the end of this month.
> 
> Best,
> 
> Rafik
> 
> ---------- Forwarded message ----------
> From: *Glen de Saint G?ry* <Glen at icann.org <mailto:Glen at icann.org>>
> Date: 2014-07-09 7:04 GMT+09:00
> Subject: Call for candidates - GNSO Liaison to the GAC
> To: Rafik Dammak <rafik.dammak at gmail.com <mailto:rafik.dammak at gmail.com>>
> Cc: "gnso.secretariat at gnso.icann.org
> <mailto:gnso.secretariat at gnso.icann.org>"
> <gnso.secretariat at gnso.icann.org <mailto:gnso.secretariat at gnso.icann.org>>
> 
> 
> 
> 
> 
> Dear All,
> 
> Please find attached the call for candidates for the GNSO Liaison to the
> GAC. The attached document outlines amongst others the process for
> applications - please note that the leadership of each Stakeholder Group
> / Constituency is expected to submit the application of its
> candidate(s), by 31 July 2014 at the latest to the GNSO Secretariat
> (gnso.secretariat at gnso.icann.org <mailto:gnso.secretariat at gnso.icann.org>).
> 
> Thank you.
> Kind regards,
> 
> Glen
> 
> Glen de Saint G?ry
> GNSO Secretariat
> gnso.secretariat at gnso.icann.org <mailto:gnso.secretariat at gnso.icann.org>
> http://gnso.icann.org
> 
> 
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
> 



From dave  Wed Jul  9 15:24:20 2014
From: dave (David Cake)
Date: Wed, 9 Jul 2014 13:24:20 +0100
Subject: [PC-NCSG] Call for candidates - GNSO Liaison to the GAC
In-Reply-To: <53BD3341.6000303@acm.org>
References: <CAH5sThkG1GbJQrE1+JG1cZ-D9A+MjsspO0M37+Nrj+C=eYFiZA@mail.gmail.com>
	<53BD3341.6000303@acm.org>
Message-ID: <6EC92893-18C9-4C45-810A-2EC8DD383DB4@difference.com.au>

I would suggest that we should not feel we have to put forward a candidate if we can't find someone both qualified and enthusiastic. It is a big job, and they will spend a lot of time in the GAC. 

It is a pretty important job and I really want it to be done well. 

David

Sent from my iPad

> On 9 Jul 2014, at 1:19 pm, Avri Doria <avri at acm.org> wrote:
> 
> hi,
> 
> Do we have an ex council member who wants the job?
> 
> avri
> 
> 
>> On 09-Jul-14 02:38, Rafik Dammak wrote:
>> Hello,
>> 
>> we should send an application of candidate(s) for the GNSO liaison to
>> the GAC.
>> the PC should start the process and the deadline is the end of this month.
>> 
>> Best,
>> 
>> Rafik
>> 
>> ---------- Forwarded message ----------
>> From: *Glen de Saint G?ry* <Glen at icann.org <mailto:Glen at icann.org>>
>> Date: 2014-07-09 7:04 GMT+09:00
>> Subject: Call for candidates - GNSO Liaison to the GAC
>> To: Rafik Dammak <rafik.dammak at gmail.com <mailto:rafik.dammak at gmail.com>>
>> Cc: "gnso.secretariat at gnso.icann.org
>> <mailto:gnso.secretariat at gnso.icann.org>"
>> <gnso.secretariat at gnso.icann.org <mailto:gnso.secretariat at gnso.icann.org>>
>> 
>> 
>> 
>> 
>> 
>> Dear All,
>> 
>> Please find attached the call for candidates for the GNSO Liaison to the
>> GAC. The attached document outlines amongst others the process for
>> applications - please note that the leadership of each Stakeholder Group
>> / Constituency is expected to submit the application of its
>> candidate(s), by 31 July 2014 at the latest to the GNSO Secretariat
>> (gnso.secretariat at gnso.icann.org <mailto:gnso.secretariat at gnso.icann.org>).
>> 
>> Thank you.
>> Kind regards,
>> 
>> Glen
>> 
>> Glen de Saint G?ry
>> GNSO Secretariat
>> gnso.secretariat at gnso.icann.org <mailto:gnso.secretariat at gnso.icann.org>
>> http://gnso.icann.org
>> 
>> 
>> 
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg



From avri  Wed Jul  9 16:04:48 2014
From: avri (Avri Doria)
Date: Wed, 09 Jul 2014 09:04:48 -0400
Subject: [PC-NCSG] NCPH Election to the Board.
Message-ID: <53BD3DF0.10400@acm.org>



Hi,

As far as I can tell we have decided to reject Dan as a compromise
candidate. I thought that we had already conveyed this to the CSG and to
Dan.  I know hear that we may not have done this yet, which seems rather
amiss.  We should do so ASAP.

And as we saw much of the NCSG-PC rejected the idea of proposing a vote
between Sam and Dan.

So it is time for the next step.

While I had at one point thought that suggesting Bill Drake might be a
good compromise as he is known both for his works and for being able to
talk to the CSG successfully.  But I have since become convinced that no
one from NCPH or from either of the SGs in it can be elected at this
time in our relations. I now suggest, that we propose someone from
outside the tussle between the CSG and NCSG and the politics of NCPH.

Worry about finding someone who could bring something to the Board that
the Board needs more than our internecine politics.  In this case I
think the Board would do well to another voice on Internet governance.

I suggest we propose Markus Kummer as a compromise candidate.  He is
well experienced at the senor levels and understands Internet governance
mechanisms and considerations better that most.  He has also, to my
knowledge never behaved preferentially to either business or civil
society, and has in fact tried to bring them together in WSIS, IGF and
in the Internet society.  He is a known champion of Multistakeholderism
(m17m).  And as he is in the process of retiring from ISOC, he is
available.

I have spoken to many of you about this and most have seemed agreeable,
thought there has been one strong objection.  Several have also sounded
the CSG on this.  They show some willingness to consider it, but they
are waiting for a firm proposal from us.

I spoke to Markus about this possibility, and after some consideration,
he is willing to be put forward by us.

So, since the PC is the one that that comes up with rough consensus on
candidates,  I ask for a rough-consensus call to suggest Markus Kummer
as our compromise candidate for GNSO-NCPH elected Board Seat

thanks

avri




From avri  Wed Jul  9 16:07:56 2014
From: avri (Avri Doria)
Date: Wed, 09 Jul 2014 09:07:56 -0400
Subject: [PC-NCSG] Call for candidates - GNSO Liaison to the GAC
In-Reply-To: <6EC92893-18C9-4C45-810A-2EC8DD383DB4@difference.com.au>
References: <CAH5sThkG1GbJQrE1+JG1cZ-D9A+MjsspO0M37+Nrj+C=eYFiZA@mail.gmail.com>
	<53BD3341.6000303@acm.org>
	<6EC92893-18C9-4C45-810A-2EC8DD383DB4@difference.com.au>
Message-ID: <53BD3EAC.4010502@acm.org>


agree completely.

I am hoping the CSG puts Wolf Ulrich forward for this task.

could we suggest him? or at least (if we are in rough consensus of
course) speak to CSG of our willingness to see him in the role?

avri

On 09-Jul-14 08:24, David Cake wrote:
> I would suggest that we should not feel we have to put forward a
> candidate if we can't find someone both qualified and enthusiastic.
> It is a big job, and they will spend a lot of time in the GAC.
> 
> It is a pretty important job and I really want it to be done well.
> 
> David
> 
> Sent from my iPad
> 
>> On 9 Jul 2014, at 1:19 pm, Avri Doria <avri at acm.org> wrote:
>> 
>> hi,
>> 
>> Do we have an ex council member who wants the job?
>> 
>> avri
>> 
>> 
>>> On 09-Jul-14 02:38, Rafik Dammak wrote: Hello,
>>> 
>>> we should send an application of candidate(s) for the GNSO
>>> liaison to the GAC. the PC should start the process and the
>>> deadline is the end of this month.
>>> 
>>> Best,
>>> 
>>> Rafik
>>> 
>>> ---------- Forwarded message ---------- From: *Glen de Saint
>>> G?ry* <Glen at icann.org <mailto:Glen at icann.org>> Date: 2014-07-09
>>> 7:04 GMT+09:00 Subject: Call for candidates - GNSO Liaison to the
>>> GAC To: Rafik Dammak <rafik.dammak at gmail.com
>>> <mailto:rafik.dammak at gmail.com>> Cc:
>>> "gnso.secretariat at gnso.icann.org 
>>> <mailto:gnso.secretariat at gnso.icann.org>" 
>>> <gnso.secretariat at gnso.icann.org
>>> <mailto:gnso.secretariat at gnso.icann.org>>
>>> 
>>> 
>>> 
>>> 
>>> 
>>> Dear All,
>>> 
>>> Please find attached the call for candidates for the GNSO Liaison
>>> to the GAC. The attached document outlines amongst others the
>>> process for applications - please note that the leadership of
>>> each Stakeholder Group / Constituency is expected to submit the
>>> application of its candidate(s), by 31 July 2014 at the latest to
>>> the GNSO Secretariat (gnso.secretariat at gnso.icann.org
>>> <mailto:gnso.secretariat at gnso.icann.org>).
>>> 
>>> Thank you. Kind regards,
>>> 
>>> Glen
>>> 
>>> Glen de Saint G?ry GNSO Secretariat 
>>> gnso.secretariat at gnso.icann.org
>>> <mailto:gnso.secretariat at gnso.icann.org> http://gnso.icann.org
>>> 
>>> 
>>> 
>>> _______________________________________________ PC-NCSG mailing
>>> list PC-NCSG at ipjustice.org 
>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>> 
>> _______________________________________________ PC-NCSG mailing
>> list PC-NCSG at ipjustice.org 
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
> 
> 



From wolfgang.kleinwaechter  Wed Jul  9 16:16:51 2014
From: wolfgang.kleinwaechter (=?iso-8859-1?Q?=22Kleinw=E4chter=2C_Wolfgang=22?=)
Date: Wed, 09 Jul 2014 15:16:51 +0200
Subject: [PC-NCSG] NCPH Election to the Board.
References: <53BD3DF0.10400@acm.org>
Message-ID: <2DA93620FC07494C926D60C8E3C2F1A80164244F@server1.medienkomm.uni-halle.de>

I strongly support Avris proposal.

Wolfgang




-----Urspr?ngliche Nachricht-----
Von: PC-NCSG im Auftrag von Avri Doria
Gesendet: Mi 09.07.2014 15:04
An: pc-ncsg at ipjustice.org
Betreff: [PC-NCSG] NCPH Election to the Board.
 


Hi,

As far as I can tell we have decided to reject Dan as a compromise
candidate. I thought that we had already conveyed this to the CSG and to
Dan.  I know hear that we may not have done this yet, which seems rather
amiss.  We should do so ASAP.

And as we saw much of the NCSG-PC rejected the idea of proposing a vote
between Sam and Dan.

So it is time for the next step.

While I had at one point thought that suggesting Bill Drake might be a
good compromise as he is known both for his works and for being able to
talk to the CSG successfully.  But I have since become convinced that no
one from NCPH or from either of the SGs in it can be elected at this
time in our relations. I now suggest, that we propose someone from
outside the tussle between the CSG and NCSG and the politics of NCPH.

Worry about finding someone who could bring something to the Board that
the Board needs more than our internecine politics.  In this case I
think the Board would do well to another voice on Internet governance.

I suggest we propose Markus Kummer as a compromise candidate.  He is
well experienced at the senor levels and understands Internet governance
mechanisms and considerations better that most.  He has also, to my
knowledge never behaved preferentially to either business or civil
society, and has in fact tried to bring them together in WSIS, IGF and
in the Internet society.  He is a known champion of Multistakeholderism
(m17m).  And as he is in the process of retiring from ISOC, he is
available.

I have spoken to many of you about this and most have seemed agreeable,
thought there has been one strong objection.  Several have also sounded
the CSG on this.  They show some willingness to consider it, but they
are waiting for a firm proposal from us.

I spoke to Markus about this possibility, and after some consideration,
he is willing to be put forward by us.

So, since the PC is the one that that comes up with rough consensus on
candidates,  I ask for a rough-consensus call to suggest Markus Kummer
as our compromise candidate for GNSO-NCPH elected Board Seat

thanks

avri


_______________________________________________
PC-NCSG mailing list
PC-NCSG at ipjustice.org
http://mailman.ipjustice.org/listinfo/pc-ncsg




From wjdrake  Wed Jul  9 16:30:09 2014
From: wjdrake (William Drake)
Date: Wed, 9 Jul 2014 15:30:09 +0200
Subject: [PC-NCSG] NCPH Election to the Board.
In-Reply-To: <2DA93620FC07494C926D60C8E3C2F1A80164244F@server1.medienkomm.uni-halle.de>
References: <53BD3DF0.10400@acm.org>
	<2DA93620FC07494C926D60C8E3C2F1A80164244F@server1.medienkomm.uni-halle.de>
Message-ID: <C4C017AA-BC32-42AF-9563-5583F4412763@gmail.com>

yes per previous strong support from the peanut gallery.

Bill

On Jul 9, 2014, at 3:16 PM, Kleinw?chter, Wolfgang <wolfgang.kleinwaechter at medienkomm.uni-halle.de> wrote:

> I strongly support Avris proposal.
> 
> Wolfgang
> 
> 
> 
> 
> -----Urspr?ngliche Nachricht-----
> Von: PC-NCSG im Auftrag von Avri Doria
> Gesendet: Mi 09.07.2014 15:04
> An: pc-ncsg at ipjustice.org
> Betreff: [PC-NCSG] NCPH Election to the Board.
> 
> 
> 
> Hi,
> 
> As far as I can tell we have decided to reject Dan as a compromise
> candidate. I thought that we had already conveyed this to the CSG and to
> Dan.  I know hear that we may not have done this yet, which seems rather
> amiss.  We should do so ASAP.
> 
> And as we saw much of the NCSG-PC rejected the idea of proposing a vote
> between Sam and Dan.
> 
> So it is time for the next step.
> 
> While I had at one point thought that suggesting Bill Drake might be a
> good compromise as he is known both for his works and for being able to
> talk to the CSG successfully.  But I have since become convinced that no
> one from NCPH or from either of the SGs in it can be elected at this
> time in our relations. I now suggest, that we propose someone from
> outside the tussle between the CSG and NCSG and the politics of NCPH.
> 
> Worry about finding someone who could bring something to the Board that
> the Board needs more than our internecine politics.  In this case I
> think the Board would do well to another voice on Internet governance.
> 
> I suggest we propose Markus Kummer as a compromise candidate.  He is
> well experienced at the senor levels and understands Internet governance
> mechanisms and considerations better that most.  He has also, to my
> knowledge never behaved preferentially to either business or civil
> society, and has in fact tried to bring them together in WSIS, IGF and
> in the Internet society.  He is a known champion of Multistakeholderism
> (m17m).  And as he is in the process of retiring from ISOC, he is
> available.
> 
> I have spoken to many of you about this and most have seemed agreeable,
> thought there has been one strong objection.  Several have also sounded
> the CSG on this.  They show some willingness to consider it, but they
> are waiting for a firm proposal from us.
> 
> I spoke to Markus about this possibility, and after some consideration,
> he is willing to be put forward by us.
> 
> So, since the PC is the one that that comes up with rough consensus on
> candidates,  I ask for a rough-consensus call to suggest Markus Kummer
> as our compromise candidate for GNSO-NCPH elected Board Seat
> 
> thanks
> 
> avri
> 
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
> 
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg

***********************************************
William J. Drake
International Fellow & Lecturer
  Media Change & Innovation Division, IPMZ
  University of Zurich, Switzerland
Chair, Noncommercial Users Constituency, 
  ICANN, www.ncuc.org
william.drake at uzh.ch (direct), wjdrake at gmail.com (lists),
  www.williamdrake.org
***********************************************




From aelsadr  Wed Jul  9 16:42:06 2014
From: aelsadr (Amr Elsadr)
Date: Wed, 9 Jul 2014 15:42:06 +0200
Subject: [PC-NCSG] NCPH Election to the Board.
In-Reply-To: <C4C017AA-BC32-42AF-9563-5583F4412763@gmail.com>
References: <53BD3DF0.10400@acm.org>
	<2DA93620FC07494C926D60C8E3C2F1A80164244F@server1.medienkomm.uni-halle.de>
	<C4C017AA-BC32-42AF-9563-5583F4412763@gmail.com>
Message-ID: <134F5C9A-3B25-400B-B851-B0B46B42C869@egyptig.org>

Hmm. I don?t really know Markus so well, so will have to defer to the judgment of those who do.

I wasn?t aware that we rejected Dan. That?s probably my fault. I know I?ve been busy the past couple of months, but plan on getting back on top of my duties over the next couple of weeks.

Anyway?, I?m glad we didn?t go for Dan. I was disappointed with his approach to the Spec 13 issue, and don?t believe he would have made a good rep on the BoD.

Thanks.

Amr

On Jul 9, 2014, at 3:30 PM, William Drake <wjdrake at gmail.com> wrote:

> yes per previous strong support from the peanut gallery.
> 
> Bill
> 
> On Jul 9, 2014, at 3:16 PM, Kleinw?chter, Wolfgang <wolfgang.kleinwaechter at medienkomm.uni-halle.de> wrote:
> 
>> I strongly support Avris proposal.
>> 
>> Wolfgang
>> 
>> 
>> 
>> 
>> -----Urspr?ngliche Nachricht-----
>> Von: PC-NCSG im Auftrag von Avri Doria
>> Gesendet: Mi 09.07.2014 15:04
>> An: pc-ncsg at ipjustice.org
>> Betreff: [PC-NCSG] NCPH Election to the Board.
>> 
>> 
>> 
>> Hi,
>> 
>> As far as I can tell we have decided to reject Dan as a compromise
>> candidate. I thought that we had already conveyed this to the CSG and to
>> Dan.  I know hear that we may not have done this yet, which seems rather
>> amiss.  We should do so ASAP.
>> 
>> And as we saw much of the NCSG-PC rejected the idea of proposing a vote
>> between Sam and Dan.
>> 
>> So it is time for the next step.
>> 
>> While I had at one point thought that suggesting Bill Drake might be a
>> good compromise as he is known both for his works and for being able to
>> talk to the CSG successfully.  But I have since become convinced that no
>> one from NCPH or from either of the SGs in it can be elected at this
>> time in our relations. I now suggest, that we propose someone from
>> outside the tussle between the CSG and NCSG and the politics of NCPH.
>> 
>> Worry about finding someone who could bring something to the Board that
>> the Board needs more than our internecine politics.  In this case I
>> think the Board would do well to another voice on Internet governance.
>> 
>> I suggest we propose Markus Kummer as a compromise candidate.  He is
>> well experienced at the senor levels and understands Internet governance
>> mechanisms and considerations better that most.  He has also, to my
>> knowledge never behaved preferentially to either business or civil
>> society, and has in fact tried to bring them together in WSIS, IGF and
>> in the Internet society.  He is a known champion of Multistakeholderism
>> (m17m).  And as he is in the process of retiring from ISOC, he is
>> available.
>> 
>> I have spoken to many of you about this and most have seemed agreeable,
>> thought there has been one strong objection.  Several have also sounded
>> the CSG on this.  They show some willingness to consider it, but they
>> are waiting for a firm proposal from us.
>> 
>> I spoke to Markus about this possibility, and after some consideration,
>> he is willing to be put forward by us.
>> 
>> So, since the PC is the one that that comes up with rough consensus on
>> candidates,  I ask for a rough-consensus call to suggest Markus Kummer
>> as our compromise candidate for GNSO-NCPH elected Board Seat
>> 
>> thanks
>> 
>> avri
>> 
>> 
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>> 
>> 
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
> 
> ***********************************************
> William J. Drake
> International Fellow & Lecturer
>  Media Change & Innovation Division, IPMZ
>  University of Zurich, Switzerland
> Chair, Noncommercial Users Constituency, 
>  ICANN, www.ncuc.org
> william.drake at uzh.ch (direct), wjdrake at gmail.com (lists),
>  www.williamdrake.org
> ***********************************************
> 
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg




From aelsadr  Wed Jul  9 16:46:22 2014
From: aelsadr (Amr Elsadr)
Date: Wed, 9 Jul 2014 15:46:22 +0200
Subject: [PC-NCSG] Call for candidates - GNSO Liaison to the GAC
In-Reply-To: <53BD3EAC.4010502@acm.org>
References: <CAH5sThkG1GbJQrE1+JG1cZ-D9A+MjsspO0M37+Nrj+C=eYFiZA@mail.gmail.com>
	<53BD3341.6000303@acm.org>
	<6EC92893-18C9-4C45-810A-2EC8DD383DB4@difference.com.au>
	<53BD3EAC.4010502@acm.org>
Message-ID: <8CFB373E-1B0D-416F-AC48-88839B877A0D@egyptig.org>

Agree on both counts (David and Avri). WUK would be a pretty decent candidate if he?s willing.

Thanks.

Amr

On Jul 9, 2014, at 3:07 PM, Avri Doria <avri at acm.org> wrote:

> 
> agree completely.
> 
> I am hoping the CSG puts Wolf Ulrich forward for this task.
> 
> could we suggest him? or at least (if we are in rough consensus of
> course) speak to CSG of our willingness to see him in the role?
> 
> avri
> 
> On 09-Jul-14 08:24, David Cake wrote:
>> I would suggest that we should not feel we have to put forward a
>> candidate if we can't find someone both qualified and enthusiastic.
>> It is a big job, and they will spend a lot of time in the GAC.
>> 
>> It is a pretty important job and I really want it to be done well.
>> 
>> David
>> 
>> Sent from my iPad
>> 
>>> On 9 Jul 2014, at 1:19 pm, Avri Doria <avri at acm.org> wrote:
>>> 
>>> hi,
>>> 
>>> Do we have an ex council member who wants the job?
>>> 
>>> avri
>>> 
>>> 
>>>> On 09-Jul-14 02:38, Rafik Dammak wrote: Hello,
>>>> 
>>>> we should send an application of candidate(s) for the GNSO
>>>> liaison to the GAC. the PC should start the process and the
>>>> deadline is the end of this month.
>>>> 
>>>> Best,
>>>> 
>>>> Rafik
>>>> 
>>>> ---------- Forwarded message ---------- From: *Glen de Saint
>>>> G?ry* <Glen at icann.org <mailto:Glen at icann.org>> Date: 2014-07-09
>>>> 7:04 GMT+09:00 Subject: Call for candidates - GNSO Liaison to the
>>>> GAC To: Rafik Dammak <rafik.dammak at gmail.com
>>>> <mailto:rafik.dammak at gmail.com>> Cc:
>>>> "gnso.secretariat at gnso.icann.org 
>>>> <mailto:gnso.secretariat at gnso.icann.org>" 
>>>> <gnso.secretariat at gnso.icann.org
>>>> <mailto:gnso.secretariat at gnso.icann.org>>
>>>> 
>>>> 
>>>> 
>>>> 
>>>> 
>>>> Dear All,
>>>> 
>>>> Please find attached the call for candidates for the GNSO Liaison
>>>> to the GAC. The attached document outlines amongst others the
>>>> process for applications - please note that the leadership of
>>>> each Stakeholder Group / Constituency is expected to submit the
>>>> application of its candidate(s), by 31 July 2014 at the latest to
>>>> the GNSO Secretariat (gnso.secretariat at gnso.icann.org
>>>> <mailto:gnso.secretariat at gnso.icann.org>).
>>>> 
>>>> Thank you. Kind regards,
>>>> 
>>>> Glen
>>>> 
>>>> Glen de Saint G?ry GNSO Secretariat 
>>>> gnso.secretariat at gnso.icann.org
>>>> <mailto:gnso.secretariat at gnso.icann.org> http://gnso.icann.org
>>>> 
>>>> 
>>>> 
>>>> _______________________________________________ PC-NCSG mailing
>>>> list PC-NCSG at ipjustice.org 
>>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>> 
>>> _______________________________________________ PC-NCSG mailing
>>> list PC-NCSG at ipjustice.org 
>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>> 
>> 
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg




From robin  Wed Jul  9 19:58:03 2014
From: robin (Robin Gross)
Date: Wed, 9 Jul 2014 09:58:03 -0700
Subject: [PC-NCSG] NCPH Election to the Board.
In-Reply-To: <C4C017AA-BC32-42AF-9563-5583F4412763@gmail.com>
References: <53BD3DF0.10400@acm.org>
	<2DA93620FC07494C926D60C8E3C2F1A80164244F@server1.medienkomm.uni-halle.de>
	<C4C017AA-BC32-42AF-9563-5583F4412763@gmail.com>
Message-ID: <A4827CE8-6184-49C0-8453-448E5B19F3C9@ipjustice.org>

Here's another enthusiastic expression of strong support for Markus Kummer as our board representative!  That was a rather brilliant idea, Avri!

Thanks,
Robin

On Jul 9, 2014, at 6:30 AM, William Drake wrote:

> yes per previous strong support from the peanut gallery.
> 
> Bill
> 
> On Jul 9, 2014, at 3:16 PM, Kleinw?chter, Wolfgang <wolfgang.kleinwaechter at medienkomm.uni-halle.de> wrote:
> 
>> I strongly support Avris proposal.
>> 
>> Wolfgang
>> 
>> 
>> 
>> 
>> -----Urspr?ngliche Nachricht-----
>> Von: PC-NCSG im Auftrag von Avri Doria
>> Gesendet: Mi 09.07.2014 15:04
>> An: pc-ncsg at ipjustice.org
>> Betreff: [PC-NCSG] NCPH Election to the Board.
>> 
>> 
>> 
>> Hi,
>> 
>> As far as I can tell we have decided to reject Dan as a compromise
>> candidate. I thought that we had already conveyed this to the CSG and to
>> Dan.  I know hear that we may not have done this yet, which seems rather
>> amiss.  We should do so ASAP.
>> 
>> And as we saw much of the NCSG-PC rejected the idea of proposing a vote
>> between Sam and Dan.
>> 
>> So it is time for the next step.
>> 
>> While I had at one point thought that suggesting Bill Drake might be a
>> good compromise as he is known both for his works and for being able to
>> talk to the CSG successfully.  But I have since become convinced that no
>> one from NCPH or from either of the SGs in it can be elected at this
>> time in our relations. I now suggest, that we propose someone from
>> outside the tussle between the CSG and NCSG and the politics of NCPH.
>> 
>> Worry about finding someone who could bring something to the Board that
>> the Board needs more than our internecine politics.  In this case I
>> think the Board would do well to another voice on Internet governance.
>> 
>> I suggest we propose Markus Kummer as a compromise candidate.  He is
>> well experienced at the senor levels and understands Internet governance
>> mechanisms and considerations better that most.  He has also, to my
>> knowledge never behaved preferentially to either business or civil
>> society, and has in fact tried to bring them together in WSIS, IGF and
>> in the Internet society.  He is a known champion of Multistakeholderism
>> (m17m).  And as he is in the process of retiring from ISOC, he is
>> available.
>> 
>> I have spoken to many of you about this and most have seemed agreeable,
>> thought there has been one strong objection.  Several have also sounded
>> the CSG on this.  They show some willingness to consider it, but they
>> are waiting for a firm proposal from us.
>> 
>> I spoke to Markus about this possibility, and after some consideration,
>> he is willing to be put forward by us.
>> 
>> So, since the PC is the one that that comes up with rough consensus on
>> candidates,  I ask for a rough-consensus call to suggest Markus Kummer
>> as our compromise candidate for GNSO-NCPH elected Board Seat
>> 
>> thanks
>> 
>> avri
>> 
>> 
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>> 
>> 
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
> 
> ***********************************************
> William J. Drake
> International Fellow & Lecturer
>  Media Change & Innovation Division, IPMZ
>  University of Zurich, Switzerland
> Chair, Noncommercial Users Constituency, 
>  ICANN, www.ncuc.org
> william.drake at uzh.ch (direct), wjdrake at gmail.com (lists),
>  www.williamdrake.org
> ***********************************************
> 
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
> 

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From stephanie.perrin  Wed Jul  9 20:14:41 2014
From: stephanie.perrin (Stephanie Perrin)
Date: Wed, 9 Jul 2014 13:14:41 -0400
Subject: [PC-NCSG] NCPH Election to the Board.
In-Reply-To: <A4827CE8-6184-49C0-8453-448E5B19F3C9@ipjustice.org>
References: <53BD3DF0.10400@acm.org>	<2DA93620FC07494C926D60C8E3C2F1A80164244F@server1.medienkomm.uni-halle.de>	<C4C017AA-BC32-42AF-9563-5583F4412763@gmail.com>
	<A4827CE8-6184-49C0-8453-448E5B19F3C9@ipjustice.org>
Message-ID: <53BD7881.2020504@mail.utoronto.ca>

Same here.
Stephanie P
On 14-07-09 12:58 PM, Robin Gross wrote:
> Here's another enthusiastic expression of strong support for Markus Kummer as our board representative!  That was a rather brilliant idea, Avri!
>
> Thanks,
> Robin
>
> On Jul 9, 2014, at 6:30 AM, William Drake wrote:
>
>> yes per previous strong support from the peanut gallery.
>>
>> Bill
>>
>> On Jul 9, 2014, at 3:16 PM, Kleinw?chter, Wolfgang <wolfgang.kleinwaechter at medienkomm.uni-halle.de> wrote:
>>
>>> I strongly support Avris proposal.
>>>
>>> Wolfgang
>>>
>>>
>>>
>>>
>>> -----Urspr?ngliche Nachricht-----
>>> Von: PC-NCSG im Auftrag von Avri Doria
>>> Gesendet: Mi 09.07.2014 15:04
>>> An: pc-ncsg at ipjustice.org
>>> Betreff: [PC-NCSG] NCPH Election to the Board.
>>>
>>>
>>>
>>> Hi,
>>>
>>> As far as I can tell we have decided to reject Dan as a compromise
>>> candidate. I thought that we had already conveyed this to the CSG and to
>>> Dan.  I know hear that we may not have done this yet, which seems rather
>>> amiss.  We should do so ASAP.
>>>
>>> And as we saw much of the NCSG-PC rejected the idea of proposing a vote
>>> between Sam and Dan.
>>>
>>> So it is time for the next step.
>>>
>>> While I had at one point thought that suggesting Bill Drake might be a
>>> good compromise as he is known both for his works and for being able to
>>> talk to the CSG successfully.  But I have since become convinced that no
>>> one from NCPH or from either of the SGs in it can be elected at this
>>> time in our relations. I now suggest, that we propose someone from
>>> outside the tussle between the CSG and NCSG and the politics of NCPH.
>>>
>>> Worry about finding someone who could bring something to the Board that
>>> the Board needs more than our internecine politics.  In this case I
>>> think the Board would do well to another voice on Internet governance.
>>>
>>> I suggest we propose Markus Kummer as a compromise candidate.  He is
>>> well experienced at the senor levels and understands Internet governance
>>> mechanisms and considerations better that most.  He has also, to my
>>> knowledge never behaved preferentially to either business or civil
>>> society, and has in fact tried to bring them together in WSIS, IGF and
>>> in the Internet society.  He is a known champion of Multistakeholderism
>>> (m17m).  And as he is in the process of retiring from ISOC, he is
>>> available.
>>>
>>> I have spoken to many of you about this and most have seemed agreeable,
>>> thought there has been one strong objection.  Several have also sounded
>>> the CSG on this.  They show some willingness to consider it, but they
>>> are waiting for a firm proposal from us.
>>>
>>> I spoke to Markus about this possibility, and after some consideration,
>>> he is willing to be put forward by us.
>>>
>>> So, since the PC is the one that that comes up with rough consensus on
>>> candidates,  I ask for a rough-consensus call to suggest Markus Kummer
>>> as our compromise candidate for GNSO-NCPH elected Board Seat
>>>
>>> thanks
>>>
>>> avri
>>>
>>>
>>> _______________________________________________
>>> PC-NCSG mailing list
>>> PC-NCSG at ipjustice.org
>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>
>>>
>>> _______________________________________________
>>> PC-NCSG mailing list
>>> PC-NCSG at ipjustice.org
>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>> ***********************************************
>> William J. Drake
>> International Fellow & Lecturer
>>   Media Change & Innovation Division, IPMZ
>>   University of Zurich, Switzerland
>> Chair, Noncommercial Users Constituency,
>>   ICANN, www.ncuc.org
>> william.drake at uzh.ch (direct), wjdrake at gmail.com (lists),
>>   www.williamdrake.org
>> ***********************************************
>>
>>
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>
>
>
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg

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From dave  Wed Jul  9 21:10:07 2014
From: dave (David Cake)
Date: Wed, 9 Jul 2014 19:10:07 +0100
Subject: [PC-NCSG] NCPH Election to the Board.
In-Reply-To: <53BD7881.2020504@mail.utoronto.ca>
References: <53BD3DF0.10400@acm.org>
	<2DA93620FC07494C926D60C8E3C2F1A80164244F@server1.medienkomm.uni-halle.de>
	<C4C017AA-BC32-42AF-9563-5583F4412763@gmail.com>
	<A4827CE8-6184-49C0-8453-448E5B19F3C9@ipjustice.org>
	<53BD7881.2020504@mail.utoronto.ca>
Message-ID: <B052BF2A-E623-4114-99D6-14901B98793D@difference.com.au>

I strongly support the nomination of Markus.

I have felt strongly that since the rejection of Sam by the CSG, that our best strategy was to seek a candidate who represented a strong consensus - not just proposed by one and accepted by the other, but with strong active support within both houses. I believe Markus has that support - and his great understanding of Internet governance and support for multistakeholderism is exactly what I think we need on the board right now. 

I understand that he may not have 100% support right now, and we should certainly have some discussion to see if any concerns about his candidacy can be addressed - but I think he is a great candidate. 

David

Sent from my iPad

> On 9 Jul 2014, at 6:14 pm, Stephanie Perrin <stephanie.perrin at mail.utoronto.ca> wrote:
> 
> Same here.  
> Stephanie P
>> On 14-07-09 12:58 PM, Robin Gross wrote:
>> Here's another enthusiastic expression of strong support for Markus Kummer as our board representative!  That was a rather brilliant idea, Avri!
>> 
>> Thanks,
>> Robin
>> 
>> On Jul 9, 2014, at 6:30 AM, William Drake wrote:
>> 
>>> yes per previous strong support from the peanut gallery.
>>> 
>>> Bill
>>> 
>>> On Jul 9, 2014, at 3:16 PM, Kleinw?chter, Wolfgang <wolfgang.kleinwaechter at medienkomm.uni-halle.de> wrote:
>>> 
>>>> I strongly support Avris proposal.
>>>> 
>>>> Wolfgang
>>>> 
>>>> 
>>>> 
>>>> 
>>>> -----Urspr?ngliche Nachricht-----
>>>> Von: PC-NCSG im Auftrag von Avri Doria
>>>> Gesendet: Mi 09.07.2014 15:04
>>>> An: pc-ncsg at ipjustice.org
>>>> Betreff: [PC-NCSG] NCPH Election to the Board.
>>>> 
>>>> 
>>>> 
>>>> Hi,
>>>> 
>>>> As far as I can tell we have decided to reject Dan as a compromise
>>>> candidate. I thought that we had already conveyed this to the CSG and to
>>>> Dan.  I know hear that we may not have done this yet, which seems rather
>>>> amiss.  We should do so ASAP.
>>>> 
>>>> And as we saw much of the NCSG-PC rejected the idea of proposing a vote
>>>> between Sam and Dan.
>>>> 
>>>> So it is time for the next step.
>>>> 
>>>> While I had at one point thought that suggesting Bill Drake might be a
>>>> good compromise as he is known both for his works and for being able to
>>>> talk to the CSG successfully.  But I have since become convinced that no
>>>> one from NCPH or from either of the SGs in it can be elected at this
>>>> time in our relations. I now suggest, that we propose someone from
>>>> outside the tussle between the CSG and NCSG and the politics of NCPH.
>>>> 
>>>> Worry about finding someone who could bring something to the Board that
>>>> the Board needs more than our internecine politics.  In this case I
>>>> think the Board would do well to another voice on Internet governance.
>>>> 
>>>> I suggest we propose Markus Kummer as a compromise candidate.  He is
>>>> well experienced at the senor levels and understands Internet governance
>>>> mechanisms and considerations better that most.  He has also, to my
>>>> knowledge never behaved preferentially to either business or civil
>>>> society, and has in fact tried to bring them together in WSIS, IGF and
>>>> in the Internet society.  He is a known champion of Multistakeholderism
>>>> (m17m).  And as he is in the process of retiring from ISOC, he is
>>>> available.
>>>> 
>>>> I have spoken to many of you about this and most have seemed agreeable,
>>>> thought there has been one strong objection.  Several have also sounded
>>>> the CSG on this.  They show some willingness to consider it, but they
>>>> are waiting for a firm proposal from us.
>>>> 
>>>> I spoke to Markus about this possibility, and after some consideration,
>>>> he is willing to be put forward by us.
>>>> 
>>>> So, since the PC is the one that that comes up with rough consensus on
>>>> candidates,  I ask for a rough-consensus call to suggest Markus Kummer
>>>> as our compromise candidate for GNSO-NCPH elected Board Seat
>>>> 
>>>> thanks
>>>> 
>>>> avri
>>>> 
>>>> 
>>>> _______________________________________________
>>>> PC-NCSG mailing list
>>>> PC-NCSG at ipjustice.org
>>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>> 
>>>> 
>>>> _______________________________________________
>>>> PC-NCSG mailing list
>>>> PC-NCSG at ipjustice.org
>>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>> ***********************************************
>>> William J. Drake
>>> International Fellow & Lecturer
>>>  Media Change & Innovation Division, IPMZ
>>>  University of Zurich, Switzerland
>>> Chair, Noncommercial Users Constituency, 
>>>  ICANN, www.ncuc.org
>>> william.drake at uzh.ch (direct), wjdrake at gmail.com (lists),
>>>  www.williamdrake.org
>>> ***********************************************
>>> 
>>> 
>>> _______________________________________________
>>> PC-NCSG mailing list
>>> PC-NCSG at ipjustice.org
>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>> 
>> 
>> 
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
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From avri  Thu Jul 10 00:13:56 2014
From: avri (Avri Doria)
Date: Wed, 09 Jul 2014 17:13:56 -0400
Subject: [PC-NCSG] NCPH Election to the Board.
In-Reply-To: <B052BF2A-E623-4114-99D6-14901B98793D@difference.com.au>
References: <53BD3DF0.10400@acm.org>	<2DA93620FC07494C926D60C8E3C2F1A80164244F@server1.medienkomm.uni-halle.de>	<C4C017AA-BC32-42AF-9563-5583F4412763@gmail.com>	<A4827CE8-6184-49C0-8453-448E5B19F3C9@ipjustice.org>	<53BD7881.2020504@mail.utoronto.ca>
	<B052BF2A-E623-4114-99D6-14901B98793D@difference.com.au>
Message-ID: <53BDB094.3090003@acm.org>

Hi,

BTW, I spoke to Markus today on another matter, but we also touched on
this election. He indicated that if we, NCSG or just the PC, wanted to
chat with him he was available.  I told him that while I did not think
it necessary, I would pass on his message.

avri


On 09-Jul-14 14:10, David Cake wrote:
> I strongly support the nomination of Markus.
> 
> I have felt strongly that since the rejection of Sam by the CSG, that
> our best strategy was to seek a candidate who represented a strong
> consensus - not just proposed by one and accepted by the other, but with
> strong active support within both houses. I believe Markus has that
> support - and his great understanding of Internet governance and support
> for multistakeholderism is exactly what I think we need on the board
> right now. 
> 
> I understand that he may not have 100% support right now, and we should
> certainly have some discussion to see if any concerns about his
> candidacy can be addressed - but I think he is a great candidate. 
> 
> David
> 
> Sent from my iPad
> 
> On 9 Jul 2014, at 6:14 pm, Stephanie Perrin
> <stephanie.perrin at mail.utoronto.ca
> <mailto:stephanie.perrin at mail.utoronto.ca>> wrote:
> 
>> Same here. 
>> Stephanie P
>> On 14-07-09 12:58 PM, Robin Gross wrote:
>>> Here's another enthusiastic expression of strong support for Markus Kummer as our board representative!  That was a rather brilliant idea, Avri!
>>>
>>> Thanks,
>>> Robin
>>>
>>> On Jul 9, 2014, at 6:30 AM, William Drake wrote:
>>>
>>>> yes per previous strong support from the peanut gallery.
>>>>
>>>> Bill
>>>>
>>>> On Jul 9, 2014, at 3:16 PM, Kleinw?chter, Wolfgang <wolfgang.kleinwaechter at medienkomm.uni-halle.de> wrote:
>>>>
>>>>> I strongly support Avris proposal.
>>>>>
>>>>> Wolfgang
>>>>>
>>>>>
>>>>>
>>>>>
>>>>> -----Urspr?ngliche Nachricht-----
>>>>> Von: PC-NCSG im Auftrag von Avri Doria
>>>>> Gesendet: Mi 09.07.2014 15:04
>>>>> An: pc-ncsg at ipjustice.org
>>>>> Betreff: [PC-NCSG] NCPH Election to the Board.
>>>>>
>>>>>
>>>>>
>>>>> Hi,
>>>>>
>>>>> As far as I can tell we have decided to reject Dan as a compromise
>>>>> candidate. I thought that we had already conveyed this to the CSG and to
>>>>> Dan.  I know hear that we may not have done this yet, which seems rather
>>>>> amiss.  We should do so ASAP.
>>>>>
>>>>> And as we saw much of the NCSG-PC rejected the idea of proposing a vote
>>>>> between Sam and Dan.
>>>>>
>>>>> So it is time for the next step.
>>>>>
>>>>> While I had at one point thought that suggesting Bill Drake might be a
>>>>> good compromise as he is known both for his works and for being able to
>>>>> talk to the CSG successfully.  But I have since become convinced that no
>>>>> one from NCPH or from either of the SGs in it can be elected at this
>>>>> time in our relations. I now suggest, that we propose someone from
>>>>> outside the tussle between the CSG and NCSG and the politics of NCPH.
>>>>>
>>>>> Worry about finding someone who could bring something to the Board that
>>>>> the Board needs more than our internecine politics.  In this case I
>>>>> think the Board would do well to another voice on Internet governance.
>>>>>
>>>>> I suggest we propose Markus Kummer as a compromise candidate.  He is
>>>>> well experienced at the senor levels and understands Internet governance
>>>>> mechanisms and considerations better that most.  He has also, to my
>>>>> knowledge never behaved preferentially to either business or civil
>>>>> society, and has in fact tried to bring them together in WSIS, IGF and
>>>>> in the Internet society.  He is a known champion of Multistakeholderism
>>>>> (m17m).  And as he is in the process of retiring from ISOC, he is
>>>>> available.
>>>>>
>>>>> I have spoken to many of you about this and most have seemed agreeable,
>>>>> thought there has been one strong objection.  Several have also sounded
>>>>> the CSG on this.  They show some willingness to consider it, but they
>>>>> are waiting for a firm proposal from us.
>>>>>
>>>>> I spoke to Markus about this possibility, and after some consideration,
>>>>> he is willing to be put forward by us.
>>>>>
>>>>> So, since the PC is the one that that comes up with rough consensus on
>>>>> candidates,  I ask for a rough-consensus call to suggest Markus Kummer
>>>>> as our compromise candidate for GNSO-NCPH elected Board Seat
>>>>>
>>>>> thanks
>>>>>
>>>>> avri
>>>>>
>>>>>
>>>>> _______________________________________________
>>>>> PC-NCSG mailing list
>>>>> PC-NCSG at ipjustice.org
>>>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>>>
>>>>>
>>>>> _______________________________________________
>>>>> PC-NCSG mailing list
>>>>> PC-NCSG at ipjustice.org
>>>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>> ***********************************************
>>>> William J. Drake
>>>> International Fellow & Lecturer
>>>>  Media Change & Innovation Division, IPMZ
>>>>  University of Zurich, Switzerland
>>>> Chair, Noncommercial Users Constituency, 
>>>>  ICANN, www.ncuc.org
>>>> william.drake at uzh.ch (direct), wjdrake at gmail.com (lists),
>>>>  www.williamdrake.org
>>>> ***********************************************
>>>>
>>>>
>>>> _______________________________________________
>>>> PC-NCSG mailing list
>>>> PC-NCSG at ipjustice.org
>>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>>
>>>
>>>
>>> _______________________________________________
>>> PC-NCSG mailing list
>>> PC-NCSG at ipjustice.org
>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
> 
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
> 



From wjdrake  Thu Jul 10 09:39:57 2014
From: wjdrake (William Drake)
Date: Thu, 10 Jul 2014 08:39:57 +0200
Subject: [PC-NCSG] NCPH Election to the Board.
In-Reply-To: <53BDB094.3090003@acm.org>
References: <53BD3DF0.10400@acm.org>	<2DA93620FC07494C926D60C8E3C2F1A80164244F@server1.medienkomm.uni-halle.de>	<C4C017AA-BC32-42AF-9563-5583F4412763@gmail.com>	<A4827CE8-6184-49C0-8453-448E5B19F3C9@ipjustice.org>	<53BD7881.2020504@mail.utoronto.ca>
	<B052BF2A-E623-4114-99D6-14901B98793D@difference.com.au>
	<53BDB094.3090003@acm.org>
Message-ID: <CB110D1B-3B5E-4AAF-8BA5-542668F4FB57@gmail.com>

Hi

On Jul 9, 2014, at 11:13 PM, Avri Doria <avri at ACM.ORG> wrote:

> Hi,
> 
> BTW, I spoke to Markus today on another matter, but we also touched on
> this election. He indicated that if we, NCSG or just the PC, wanted to
> chat with him he was available.  I told him that while I did not think
> it necessary, I would pass on his message.

I?ve spoken with him as well.  He didn?t know the tortured history of this seat, and said he?d heard nothing from CSG so is in limbo.  I pinged the house ?leadership? and asked if there was a process underway to move forward with consideration of the idea, only reply was Ms. Cade privately, hopefully their internal discussions will start to move.  I?m guessing IPC folks may not know him as well as they?ve not been involved in the UN processes, plus his team at ISOC has made non-preferred utterances in the past couple years (thank you KK :-), so presumably he?ll need to do The Interview.  Others informally reacted favorably in private in London, so I would hope that ultimately this should work.  Obviously, it?d be desirable to have unanimity if possible, but if someone wants to go on record as opposing one of the most consensual persons of prominence in the IG world, well whatever.
> 
> On 09-Jul-14 14:10, David Cake wrote:
>> 
>> I understand that he may not have 100% support right now, and we should
>> certainly have some discussion to see if any concerns about his
>> candidacy can be addressed - but I think he is a great candidate. 

Are you referring to the CSG side, or are you saying that someone on our side has concerns?  If so, who, about what?

Thanks

Bill




From dave  Thu Jul 10 12:00:13 2014
From: dave (David Cake)
Date: Thu, 10 Jul 2014 10:00:13 +0100
Subject: [PC-NCSG] NCPH Election to the Board.
In-Reply-To: <CB110D1B-3B5E-4AAF-8BA5-542668F4FB57@gmail.com>
References: <53BD3DF0.10400@acm.org>
	<2DA93620FC07494C926D60C8E3C2F1A80164244F@server1.medienkomm.uni-halle.de>
	<C4C017AA-BC32-42AF-9563-5583F4412763@gmail.com>
	<A4827CE8-6184-49C0-8453-448E5B19F3C9@ipjustice.org>
	<53BD7881.2020504@mail.utoronto.ca>
	<B052BF2A-E623-4114-99D6-14901B98793D@difference.com.au>
	<53BDB094.3090003@acm.org>
	<CB110D1B-3B5E-4AAF-8BA5-542668F4FB57@gmail.com>
Message-ID: <67E27B0B-C296-4480-9C5D-085A5BDE0AD2@difference.com.au>



Sent from my iPad

> On 10 Jul 2014, at 7:39 am, William Drake <wjdrake at gmail.com> wrote:
> 
> Hi
> 
>> On Jul 9, 2014, at 11:13 PM, Avri Doria <avri at ACM.ORG> wrote:
>> 
>> Hi,
>> 
>> BTW, I spoke to Markus today on another matter, but we also touched on
>> this election. He indicated that if we, NCSG or just the PC, wanted to
>> chat with him he was available.  I told him that while I did not think
>> it necessary, I would pass on his message.
> 
> I?ve spoken with him as well.  He didn?t know the tortured history of this seat, and said he?d heard nothing from CSG so is in limbo.  I pinged the house ?leadership? and asked if there was a process underway to move forward with consideration of the idea, only reply was Ms. Cade privately, hopefully their internal discussions will start to move.  I?m guessing IPC folks may not know him as well as they?ve not been involved in the UN processes, plus his team at ISOC has made non-preferred utterances in the past couple years (thank you KK :-), so presumably he?ll need to do The Interview.  Others informally reacted favorably in private in London, so I would hope that ultimately this should work.  Obviously, it?d be desirable to have unanimity if possible, but if someone wants to go on record as opposing one of the most consensual persons of prominence in the IG world, well whatever.
>> 
>>> On 09-Jul-14 14:10, David Cake wrote:
>>> 
>>> I understand that he may not have 100% support right now, and we should
>>> certainly have some discussion to see if any concerns about his
>>> candidacy can be addressed - but I think he is a great candidate.
> 
> Are you referring to the CSG side, or are you saying that someone on our side has concerns?  If so, who, about what?
> 


I was referring to the IPC, who I was told were not yet convinced, but of course if anyone from NCSG has reservations they should be able to raise them. And we may want to do an interview with Markus anyway just to make sure expectations are clear.

David

> Thanks
> 
> Bill
> 
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg



From klaus.stoll  Thu Jul 10 12:07:55 2014
From: klaus.stoll (Klaus Stoll)
Date: Thu, 10 Jul 2014 10:07:55 +0100
Subject: [PC-NCSG] NCPH Election to the Board.
In-Reply-To: <CB110D1B-3B5E-4AAF-8BA5-542668F4FB57@gmail.com>
References: <53BD3DF0.10400@acm.org>	<2DA93620FC07494C926D60C8E3C2F1A80164244F@server1.medienkomm.uni-halle.de>	<C4C017AA-BC32-42AF-9563-5583F4412763@gmail.com>	<A4827CE8-6184-49C0-8453-448E5B19F3C9@ipjustice.org>	<53BD7881.2020504@mail.utoronto.ca>	<B052BF2A-E623-4114-99D6-14901B98793D@difference.com.au>	<53BDB094.3090003@acm.org>
	<CB110D1B-3B5E-4AAF-8BA5-542668F4FB57@gmail.com>
Message-ID: <53BE57EB.1010407@gkpfoundation.org>

Regarding the nomination Markus Kummer. As far as I know Markus is 
departing ISOC and will be responsible for the set-up of the IGF 
secretariat office in Istanbul. At least that?s what I am told. This 
might not necessarily be a conflict of interest but would it not be 
better if he was able to concentrate his efforts on this important task?.

Markus has his merits in the broader Ig context, but I can not remember 
him being an important champion for end users, NFP's and NGO's.

Would more consultation first among the NCSG structures (including and 
not excluding NPOC) before consultation with outside parties is done not 
be the right way to go?

We should have a constructive discussion on the nomination of Markus 
Kummer, but at the moment it looks like a proclamation of his candidacy, 
based on a show of hands on an email list, without it. Not the right way 
to go.

Klaus


> Hi
>
> On Jul 9, 2014, at 11:13 PM, Avri Doria <avri at ACM.ORG> wrote:
>
>> Hi,
>>
>> BTW, I spoke to Markus today on another matter, but we also touched on
>> this election. He indicated that if we, NCSG or just the PC, wanted to
>> chat with him he was available.  I told him that while I did not think
>> it necessary, I would pass on his message.
> I?ve spoken with him as well.  He didn?t know the tortured history of this seat, and said he?d heard nothing from CSG so is in limbo.  I pinged the house ?leadership? and asked if there was a process underway to move forward with consideration of the idea, only reply was Ms. Cade privately, hopefully their internal discussions will start to move.  I?m guessing IPC folks may not know him as well as they?ve not been involved in the UN processes, plus his team at ISOC has made non-preferred utterances in the past couple years (thank you KK :-), so presumably he?ll need to do The Interview.  Others informally reacted favorably in private in London, so I would hope that ultimately this should work.  Obviously, it?d be desirable to have unanimity if possible, but if someone wants to go on record as opposing one of the most consensual persons of prominence in the IG world, well whatever.
>> On 09-Jul-14 14:10, David Cake wrote:
>>> I understand that he may not have 100% support right now, and we should
>>> certainly have some discussion to see if any concerns about his
>>> candidacy can be addressed - but I think he is a great candidate.
> Are you referring to the CSG side, or are you saying that someone on our side has concerns?  If so, who, about what?
>
> Thanks
>
> Bill
>
>
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
>




From wolfgang.kleinwaechter  Thu Jul 10 12:49:10 2014
From: wolfgang.kleinwaechter (=?iso-8859-1?Q?=22Kleinw=E4chter=2C_Wolfgang=22?=)
Date: Thu, 10 Jul 2014 11:49:10 +0200
Subject: [PC-NCSG] NCPH Election to the Board.
References: <53BD3DF0.10400@acm.org>
	<2DA93620FC07494C926D60C8E3C2F1A80164244F@server1.medienkomm.uni-halle.de>
	<C4C017AA-BC32-42AF-9563-5583F4412763@gmail.com>
	<A4827CE8-6184-49C0-8453-448E5B19F3C9@ipjustice.org>
	<53BD7881.2020504@mail.utoronto.ca>
	<B052BF2A-E623-4114-99D6-14901B98793D@difference.com.au>
	<53BDB094.3090003@acm.org>
	<CB110D1B-3B5E-4AAF-8BA5-542668F4FB57@gmail.com>
	<53BE57EB.1010407@gkpfoundation.org>
Message-ID: <2DA93620FC07494C926D60C8E3C2F1A80164245F@server1.medienkomm.uni-halle.de>

Markus was very crucial to  open the door for civil society/end users in the UN context and he helped to secure the ICANN friendly paras. in the Tunis Agenda. There is nobody in the present Board who could help ICANN more to save a friendly political environment for ICANN so that ICANN can concentrate to manage its core business. And the GNSO is the right sending body. Remember that the outgoing GNSO Board member Bill Graham started as Canadas GAC rep and moved from there to ISOC and then to th Board. . 

Wolfgang

  


-----Urspr?ngliche Nachricht-----
Von: PC-NCSG im Auftrag von Klaus Stoll
Gesendet: Do 10.07.2014 11:07
An: pc-ncsg at ipjustice.org
Betreff: Re: [PC-NCSG] NCPH Election to the Board.
 
Regarding the nomination Markus Kummer. As far as I know Markus is 
departing ISOC and will be responsible for the set-up of the IGF 
secretariat office in Istanbul. At least that's what I am told. This 
might not necessarily be a conflict of interest but would it not be 
better if he was able to concentrate his efforts on this important task?.

Markus has his merits in the broader Ig context, but I can not remember 
him being an important champion for end users, NFP's and NGO's.

Would more consultation first among the NCSG structures (including and 
not excluding NPOC) before consultation with outside parties is done not 
be the right way to go?

We should have a constructive discussion on the nomination of Markus 
Kummer, but at the moment it looks like a proclamation of his candidacy, 
based on a show of hands on an email list, without it. Not the right way 
to go.

Klaus


> Hi
>
> On Jul 9, 2014, at 11:13 PM, Avri Doria <avri at ACM.ORG> wrote:
>
>> Hi,
>>
>> BTW, I spoke to Markus today on another matter, but we also touched on
>> this election. He indicated that if we, NCSG or just the PC, wanted to
>> chat with him he was available.  I told him that while I did not think
>> it necessary, I would pass on his message.
> I've spoken with him as well.  He didn't know the tortured history of this seat, and said he'd heard nothing from CSG so is in limbo.  I pinged the house 'leadership' and asked if there was a process underway to move forward with consideration of the idea, only reply was Ms. Cade privately, hopefully their internal discussions will start to move.  I'm guessing IPC folks may not know him as well as they've not been involved in the UN processes, plus his team at ISOC has made non-preferred utterances in the past couple years (thank you KK :-), so presumably he'll need to do The Interview.  Others informally reacted favorably in private in London, so I would hope that ultimately this should work.  Obviously, it'd be desirable to have unanimity if possible, but if someone wants to go on record as opposing one of the most consensual persons of prominence in the IG world, well whatever.
>> On 09-Jul-14 14:10, David Cake wrote:
>>> I understand that he may not have 100% support right now, and we should
>>> certainly have some discussion to see if any concerns about his
>>> candidacy can be addressed - but I think he is a great candidate.
> Are you referring to the CSG side, or are you saying that someone on our side has concerns?  If so, who, about what?
>
> Thanks
>
> Bill
>
>
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
>


_______________________________________________
PC-NCSG mailing list
PC-NCSG at ipjustice.org
http://mailman.ipjustice.org/listinfo/pc-ncsg




From maria.farrell  Thu Jul 10 13:33:21 2014
From: maria.farrell (Maria Farrell)
Date: Thu, 10 Jul 2014 11:33:21 +0100
Subject: [PC-NCSG] Call for candidates - GNSO Liaison to the GAC
In-Reply-To: <8CFB373E-1B0D-416F-AC48-88839B877A0D@egyptig.org>
References: <CAH5sThkG1GbJQrE1+JG1cZ-D9A+MjsspO0M37+Nrj+C=eYFiZA@mail.gmail.com>
	<53BD3341.6000303@acm.org>
	<6EC92893-18C9-4C45-810A-2EC8DD383DB4@difference.com.au>
	<53BD3EAC.4010502@acm.org>
	<8CFB373E-1B0D-416F-AC48-88839B877A0D@egyptig.org>
Message-ID: <CAC7qwdATNMjvNQffm3zqZqty4fUOjYxQTxXU8YVRbz6peb4poQ@mail.gmail.com>

Wolf Ulrich would be great, but haven't they put him on the IANA
coordination thing, too? It may be too much of a commitment / schedule
clash during meetings for one person to do both jobs. Just wondering,
really - not raising as an objection.

m


On 9 July 2014 14:46, Amr Elsadr <aelsadr at egyptig.org> wrote:

> Agree on both counts (David and Avri). WUK would be a pretty decent
> candidate if he?s willing.
>
> Thanks.
>
> Amr
>
> On Jul 9, 2014, at 3:07 PM, Avri Doria <avri at acm.org> wrote:
>
> >
> > agree completely.
> >
> > I am hoping the CSG puts Wolf Ulrich forward for this task.
> >
> > could we suggest him? or at least (if we are in rough consensus of
> > course) speak to CSG of our willingness to see him in the role?
> >
> > avri
> >
> > On 09-Jul-14 08:24, David Cake wrote:
> >> I would suggest that we should not feel we have to put forward a
> >> candidate if we can't find someone both qualified and enthusiastic.
> >> It is a big job, and they will spend a lot of time in the GAC.
> >>
> >> It is a pretty important job and I really want it to be done well.
> >>
> >> David
> >>
> >> Sent from my iPad
> >>
> >>> On 9 Jul 2014, at 1:19 pm, Avri Doria <avri at acm.org> wrote:
> >>>
> >>> hi,
> >>>
> >>> Do we have an ex council member who wants the job?
> >>>
> >>> avri
> >>>
> >>>
> >>>> On 09-Jul-14 02:38, Rafik Dammak wrote: Hello,
> >>>>
> >>>> we should send an application of candidate(s) for the GNSO
> >>>> liaison to the GAC. the PC should start the process and the
> >>>> deadline is the end of this month.
> >>>>
> >>>> Best,
> >>>>
> >>>> Rafik
> >>>>
> >>>> ---------- Forwarded message ---------- From: *Glen de Saint
> >>>> G?ry* <Glen at icann.org <mailto:Glen at icann.org>> Date: 2014-07-09
> >>>> 7:04 GMT+09:00 Subject: Call for candidates - GNSO Liaison to the
> >>>> GAC To: Rafik Dammak <rafik.dammak at gmail.com
> >>>> <mailto:rafik.dammak at gmail.com>> Cc:
> >>>> "gnso.secretariat at gnso.icann.org
> >>>> <mailto:gnso.secretariat at gnso.icann.org>"
> >>>> <gnso.secretariat at gnso.icann.org
> >>>> <mailto:gnso.secretariat at gnso.icann.org>>
> >>>>
> >>>>
> >>>>
> >>>>
> >>>>
> >>>> Dear All,
> >>>>
> >>>> Please find attached the call for candidates for the GNSO Liaison
> >>>> to the GAC. The attached document outlines amongst others the
> >>>> process for applications - please note that the leadership of
> >>>> each Stakeholder Group / Constituency is expected to submit the
> >>>> application of its candidate(s), by 31 July 2014 at the latest to
> >>>> the GNSO Secretariat (gnso.secretariat at gnso.icann.org
> >>>> <mailto:gnso.secretariat at gnso.icann.org>).
> >>>>
> >>>> Thank you. Kind regards,
> >>>>
> >>>> Glen
> >>>>
> >>>> Glen de Saint G?ry GNSO Secretariat
> >>>> gnso.secretariat at gnso.icann.org
> >>>> <mailto:gnso.secretariat at gnso.icann.org> http://gnso.icann.org
> >>>>
> >>>>
> >>>>
> >>>> _______________________________________________ PC-NCSG mailing
> >>>> list PC-NCSG at ipjustice.org
> >>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
> >>>
> >>> _______________________________________________ PC-NCSG mailing
> >>> list PC-NCSG at ipjustice.org
> >>> http://mailman.ipjustice.org/listinfo/pc-ncsg
> >>
> >>
> >
> > _______________________________________________
> > PC-NCSG mailing list
> > PC-NCSG at ipjustice.org
> > http://mailman.ipjustice.org/listinfo/pc-ncsg
>
>
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
>
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From avri  Thu Jul 10 13:53:04 2014
From: avri (Avri Doria)
Date: Thu, 10 Jul 2014 06:53:04 -0400
Subject: [PC-NCSG] NCPH Election to the Board.
In-Reply-To: <53BE57EB.1010407@gkpfoundation.org>
References: <53BD3DF0.10400@acm.org>	<2DA93620FC07494C926D60C8E3C2F1A80164244F@server1.medienkomm.uni-halle.de>	<C4C017AA-BC32-42AF-9563-5583F4412763@gmail.com>	<A4827CE8-6184-49C0-8453-448E5B19F3C9@ipjustice.org>	<53BD7881.2020504@mail.utoronto.ca>	<B052BF2A-E623-4114-99D6-14901B98793D@difference.com.au>	<53BDB094.3090003@acm.org>	<CB110D1B-3B5E-4AAF-8BA5-542668F4FB57@gmail.com>
	<53BE57EB.1010407@gkpfoundation.org>
Message-ID: <53BE7090.5010501@acm.org>

Hi,


Markus will be leaving the Internet Society in several months.  There
will be no conflict of interest.

avri


On 10-Jul-14 05:07, Klaus Stoll wrote:
> Regarding the nomination Markus Kummer. As far as I know Markus is
> departing ISOC and will be responsible for the set-up of the IGF
> secretariat office in Istanbul. At least that?s what I am told. This
> might not necessarily be a conflict of interest but would it not be
> better if he was able to concentrate his efforts on this important task?.
> 
> Markus has his merits in the broader Ig context, but I can not remember
> him being an important champion for end users, NFP's and NGO's.
> 
> Would more consultation first among the NCSG structures (including and
> not excluding NPOC) before consultation with outside parties is done not
> be the right way to go?
> 
> We should have a constructive discussion on the nomination of Markus
> Kummer, but at the moment it looks like a proclamation of his candidacy,
> based on a show of hands on an email list, without it. Not the right way
> to go.
> 
> Klaus
> 
> 
>> Hi
>>
>> On Jul 9, 2014, at 11:13 PM, Avri Doria <avri at ACM.ORG> wrote:
>>
>>> Hi,
>>>
>>> BTW, I spoke to Markus today on another matter, but we also touched on
>>> this election. He indicated that if we, NCSG or just the PC, wanted to
>>> chat with him he was available.  I told him that while I did not think
>>> it necessary, I would pass on his message.
>> I?ve spoken with him as well.  He didn?t know the tortured history of
>> this seat, and said he?d heard nothing from CSG so is in limbo.  I
>> pinged the house ?leadership? and asked if there was a process
>> underway to move forward with consideration of the idea, only reply
>> was Ms. Cade privately, hopefully their internal discussions will
>> start to move.  I?m guessing IPC folks may not know him as well as
>> they?ve not been involved in the UN processes, plus his team at ISOC
>> has made non-preferred utterances in the past couple years (thank you
>> KK :-), so presumably he?ll need to do The Interview.  Others
>> informally reacted favorably in private in London, so I would hope
>> that ultimately this should work.  Obviously, it?d be desirable to
>> have unanimity if possible, but if someone wants to go on record as
>> opposing one of the most consensual persons of prominence in the IG
>> world, well whatever.
>>> On 09-Jul-14 14:10, David Cake wrote:
>>>> I understand that he may not have 100% support right now, and we should
>>>> certainly have some discussion to see if any concerns about his
>>>> candidacy can be addressed - but I think he is a great candidate.
>> Are you referring to the CSG side, or are you saying that someone on
>> our side has concerns?  If so, who, about what?
>>
>> Thanks
>>
>> Bill
>>
>>
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>
> 
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
> 
> 



From avri  Thu Jul 10 13:54:36 2014
From: avri (Avri Doria)
Date: Thu, 10 Jul 2014 06:54:36 -0400
Subject: [PC-NCSG] Call for candidates - GNSO Liaison to the GAC
In-Reply-To: <CAC7qwdATNMjvNQffm3zqZqty4fUOjYxQTxXU8YVRbz6peb4poQ@mail.gmail.com>
References: <CAH5sThkG1GbJQrE1+JG1cZ-D9A+MjsspO0M37+Nrj+C=eYFiZA@mail.gmail.com>	<53BD3341.6000303@acm.org>	<6EC92893-18C9-4C45-810A-2EC8DD383DB4@difference.com.au>	<53BD3EAC.4010502@acm.org>	<8CFB373E-1B0D-416F-AC48-88839B877A0D@egyptig.org>
	<CAC7qwdATNMjvNQffm3zqZqty4fUOjYxQTxXU8YVRbz6peb4poQ@mail.gmail.com>
Message-ID: <53BE70EC.7090202@acm.org>

Hi

Forgot about that.
You are right.

avri

On 10-Jul-14 06:33, Maria Farrell wrote:
> Wolf Ulrich would be great, but haven't they put him on the IANA
> coordination thing, too? It may be too much of a commitment / schedule
> clash during meetings for one person to do both jobs. Just wondering,
> really - not raising as an objection.
> 
> m
> 
> 
> On 9 July 2014 14:46, Amr Elsadr <aelsadr at egyptig.org
> <mailto:aelsadr at egyptig.org>> wrote:
> 
>     Agree on both counts (David and Avri). WUK would be a pretty decent
>     candidate if he?s willing.
> 
>     Thanks.
> 
>     Amr
> 
>     On Jul 9, 2014, at 3:07 PM, Avri Doria <avri at acm.org
>     <mailto:avri at acm.org>> wrote:
> 
>     >
>     > agree completely.
>     >
>     > I am hoping the CSG puts Wolf Ulrich forward for this task.
>     >
>     > could we suggest him? or at least (if we are in rough consensus of
>     > course) speak to CSG of our willingness to see him in the role?
>     >
>     > avri
>     >
>     > On 09-Jul-14 08:24, David Cake wrote:
>     >> I would suggest that we should not feel we have to put forward a
>     >> candidate if we can't find someone both qualified and enthusiastic.
>     >> It is a big job, and they will spend a lot of time in the GAC.
>     >>
>     >> It is a pretty important job and I really want it to be done well.
>     >>
>     >> David
>     >>
>     >> Sent from my iPad
>     >>
>     >>> On 9 Jul 2014, at 1:19 pm, Avri Doria <avri at acm.org
>     <mailto:avri at acm.org>> wrote:
>     >>>
>     >>> hi,
>     >>>
>     >>> Do we have an ex council member who wants the job?
>     >>>
>     >>> avri
>     >>>
>     >>>
>     >>>> On 09-Jul-14 02:38, Rafik Dammak wrote: Hello,
>     >>>>
>     >>>> we should send an application of candidate(s) for the GNSO
>     >>>> liaison to the GAC. the PC should start the process and the
>     >>>> deadline is the end of this month.
>     >>>>
>     >>>> Best,
>     >>>>
>     >>>> Rafik
>     >>>>
>     >>>> ---------- Forwarded message ---------- From: *Glen de Saint
>     >>>> G?ry* <Glen at icann.org <mailto:Glen at icann.org>
>     <mailto:Glen at icann.org <mailto:Glen at icann.org>>> Date: 2014-07-09
>     >>>> 7:04 GMT+09:00 Subject: Call for candidates - GNSO Liaison to the
>     >>>> GAC To: Rafik Dammak <rafik.dammak at gmail.com
>     <mailto:rafik.dammak at gmail.com>
>     >>>> <mailto:rafik.dammak at gmail.com
>     <mailto:rafik.dammak at gmail.com>>> Cc:
>     >>>> "gnso.secretariat at gnso.icann.org
>     <mailto:gnso.secretariat at gnso.icann.org>
>     >>>> <mailto:gnso.secretariat at gnso.icann.org
>     <mailto:gnso.secretariat at gnso.icann.org>>"
>     >>>> <gnso.secretariat at gnso.icann.org
>     <mailto:gnso.secretariat at gnso.icann.org>
>     >>>> <mailto:gnso.secretariat at gnso.icann.org
>     <mailto:gnso.secretariat at gnso.icann.org>>>
>     >>>>
>     >>>>
>     >>>>
>     >>>>
>     >>>>
>     >>>> Dear All,
>     >>>>
>     >>>> Please find attached the call for candidates for the GNSO Liaison
>     >>>> to the GAC. The attached document outlines amongst others the
>     >>>> process for applications - please note that the leadership of
>     >>>> each Stakeholder Group / Constituency is expected to submit the
>     >>>> application of its candidate(s), by 31 July 2014 at the latest to
>     >>>> the GNSO Secretariat (gnso.secretariat at gnso.icann.org
>     <mailto:gnso.secretariat at gnso.icann.org>
>     >>>> <mailto:gnso.secretariat at gnso.icann.org
>     <mailto:gnso.secretariat at gnso.icann.org>>).
>     >>>>
>     >>>> Thank you. Kind regards,
>     >>>>
>     >>>> Glen
>     >>>>
>     >>>> Glen de Saint G?ry GNSO Secretariat
>     >>>> gnso.secretariat at gnso.icann.org
>     <mailto:gnso.secretariat at gnso.icann.org>
>     >>>> <mailto:gnso.secretariat at gnso.icann.org
>     <mailto:gnso.secretariat at gnso.icann.org>> http://gnso.icann.org
>     >>>>
>     >>>>
>     >>>>
>     >>>> _______________________________________________ PC-NCSG mailing
>     >>>> list PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>     >>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>     >>>
>     >>> _______________________________________________ PC-NCSG mailing
>     >>> list PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>     >>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>     >>
>     >>
>     >
>     > _______________________________________________
>     > PC-NCSG mailing list
>     > PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>     > http://mailman.ipjustice.org/listinfo/pc-ncsg
> 
> 
>     _______________________________________________
>     PC-NCSG mailing list
>     PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>     http://mailman.ipjustice.org/listinfo/pc-ncsg
> 
> 



From avri  Thu Jul 10 14:06:23 2014
From: avri (Avri Doria)
Date: Thu, 10 Jul 2014 07:06:23 -0400
Subject: [PC-NCSG] NCPH Election to the Board.
In-Reply-To: <53BE57EB.1010407@gkpfoundation.org>
References: <53BD3DF0.10400@acm.org>	<2DA93620FC07494C926D60C8E3C2F1A80164244F@server1.medienkomm.uni-halle.de>	<C4C017AA-BC32-42AF-9563-5583F4412763@gmail.com>	<A4827CE8-6184-49C0-8453-448E5B19F3C9@ipjustice.org>	<53BD7881.2020504@mail.utoronto.ca>	<B052BF2A-E623-4114-99D6-14901B98793D@difference.com.au>	<53BDB094.3090003@acm.org>	<CB110D1B-3B5E-4AAF-8BA5-542668F4FB57@gmail.com>
	<53BE57EB.1010407@gkpfoundation.org>
Message-ID: <53BE73AF.5050105@acm.org>



On 10-Jul-14 05:07, Klaus Stoll wrote:
> 
> Would more consultation first among the NCSG structures (including and
> not excluding NPOC) before consultation with outside parties is done not
> be the right way to go?


i tend to think of the NCSG doing things not the constituencies.  this
is an NCSG task.

I spoke to most of the council members in London about this, including
with you, and only one was against the idea so proceeded to explore the
idea with him.

If you are saying that NPOC is going to block someone as qualified as
Markus let's hear it and get on with it.

avri





From wjdrake  Thu Jul 10 14:13:08 2014
From: wjdrake (William Drake)
Date: Thu, 10 Jul 2014 13:13:08 +0200
Subject: [PC-NCSG] NCPH Election to the Board.
In-Reply-To: <53BE57EB.1010407@gkpfoundation.org>
References: <53BD3DF0.10400@acm.org>	<2DA93620FC07494C926D60C8E3C2F1A80164244F@server1.medienkomm.uni-halle.de>	<C4C017AA-BC32-42AF-9563-5583F4412763@gmail.com>	<A4827CE8-6184-49C0-8453-448E5B19F3C9@ipjustice.org>	<53BD7881.2020504@mail.utoronto.ca>	<B052BF2A-E623-4114-99D6-14901B98793D@difference.com.au>	<53BDB094.3090003@acm.org>
	<CB110D1B-3B5E-4AAF-8BA5-542668F4FB57@gmail.com>
	<53BE57EB.1010407@gkpfoundation.org>
Message-ID: <7D95A3B2-9577-4BF6-B3EB-D7CDCE6A0761@gmail.com>

Klaus

On Jul 10, 2014, at 11:07 AM, Klaus Stoll <klaus.stoll at gkpfoundation.org> wrote:

> Regarding the nomination Markus Kummer. As far as I know Markus is departing ISOC and will be responsible for the set-up of the IGF secretariat office in Istanbul. At least that?s what I am told.

Someone told you wrong.  What he is doing until leaving ISOC early September is setting up the IGF Support Association (which is an ISOC initiative).  He will also be Janis' advisor for Istanbul.  

> This might not necessarily be a conflict of interest but would it not be better if he was able to concentrate his efforts on this important task?.

You?re right, it is not.  As to concentrating energies, the IGF is first week of September and then he?s done.  The Board position is for three years.  He?s probably able to manage his own calendar without our pre-judgements.
> 
> Markus has his merits in the broader Ig context, but I can not remember him being an important champion for end users, NFP's and NGO?s.

And I cannot remember you being around in the decade during which he played a central role in helping civil society get at the table and getting multistakeholderism institutionalized in the relevant UN contexts.  But I?d believe you if you said you were.
> 
> Would more consultation first among the NCSG structures (including and not excluding NPOC) before consultation with outside parties is done not be the right way to go?

I think most who would care are aware of his role, but if you want to consult before voting, go for it.
> 
> We should have a constructive discussion on the nomination of Markus Kummer, but at the moment it looks like a proclamation of his candidacy, based on a show of hands on an email list, without it. Not the right way to go.

I see no difference between this process and others, but feel free to discuss.

Cheers

Bill
> 
> Klaus
> 
> 
>> Hi
>> 
>> On Jul 9, 2014, at 11:13 PM, Avri Doria <avri at ACM.ORG> wrote:
>> 
>>> Hi,
>>> 
>>> BTW, I spoke to Markus today on another matter, but we also touched on
>>> this election. He indicated that if we, NCSG or just the PC, wanted to
>>> chat with him he was available.  I told him that while I did not think
>>> it necessary, I would pass on his message.
>> I?ve spoken with him as well.  He didn?t know the tortured history of this seat, and said he?d heard nothing from CSG so is in limbo.  I pinged the house ?leadership? and asked if there was a process underway to move forward with consideration of the idea, only reply was Ms. Cade privately, hopefully their internal discussions will start to move.  I?m guessing IPC folks may not know him as well as they?ve not been involved in the UN processes, plus his team at ISOC has made non-preferred utterances in the past couple years (thank you KK :-), so presumably he?ll need to do The Interview.  Others informally reacted favorably in private in London, so I would hope that ultimately this should work.  Obviously, it?d be desirable to have unanimity if possible, but if someone wants to go on record as opposing one of the most consensual persons of prominence in the IG world, well whatever.
>>> On 09-Jul-14 14:10, David Cake wrote:
>>>> I understand that he may not have 100% support right now, and we should
>>>> certainly have some discussion to see if any concerns about his
>>>> candidacy can be addressed - but I think he is a great candidate.
>> Are you referring to the CSG side, or are you saying that someone on our side has concerns?  If so, who, about what?
>> 
>> Thanks
>> 
>> Bill
>> 
>> 
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>> 
> 
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg




From maria.farrell  Thu Jul 10 14:15:29 2014
From: maria.farrell (Maria Farrell)
Date: Thu, 10 Jul 2014 12:15:29 +0100
Subject: [PC-NCSG] NCPH Election to the Board.
In-Reply-To: <53BE73AF.5050105@acm.org>
References: <53BD3DF0.10400@acm.org>
	<2DA93620FC07494C926D60C8E3C2F1A80164244F@server1.medienkomm.uni-halle.de>
	<C4C017AA-BC32-42AF-9563-5583F4412763@gmail.com>
	<A4827CE8-6184-49C0-8453-448E5B19F3C9@ipjustice.org>
	<53BD7881.2020504@mail.utoronto.ca>
	<B052BF2A-E623-4114-99D6-14901B98793D@difference.com.au>
	<53BDB094.3090003@acm.org>
	<CB110D1B-3B5E-4AAF-8BA5-542668F4FB57@gmail.com>
	<53BE57EB.1010407@gkpfoundation.org> <53BE73AF.5050105@acm.org>
Message-ID: <CAC7qwdBTvf9m5dH5t18eP5_krMbj7fKVW_LudnEOrsB2k+WvZA@mail.gmail.com>

Hi Klaus,

How should we structure the discussion for this - is it something Rudi and
I should work on as co-chairs?

Do you want us to set up a call to discuss Markus' candidacy and/or any
other issues?

The NCSG PC is indeed the correct body within the NCSG to make this
decision (either for or against Markus Kummer or for None of the Above),
and I'm happy to talk with you to figure out the fairest way of having that
discussion. As you'll see, I've not declared any interest myself re. his
potential candidacy. Personally, my only interest is getting this resolved!

All the best, Maria


On 10 July 2014 12:06, Avri Doria <avri at acm.org> wrote:

>
>
> On 10-Jul-14 05:07, Klaus Stoll wrote:
> >
> > Would more consultation first among the NCSG structures (including and
> > not excluding NPOC) before consultation with outside parties is done not
> > be the right way to go?
>
>
> i tend to think of the NCSG doing things not the constituencies.  this
> is an NCSG task.
>
> I spoke to most of the council members in London about this, including
> with you, and only one was against the idea so proceeded to explore the
> idea with him.
>
> If you are saying that NPOC is going to block someone as qualified as
> Markus let's hear it and get on with it.
>
> avri
>
>
>
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
>
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From maria.farrell  Thu Jul 10 14:35:59 2014
From: maria.farrell (Maria Farrell)
Date: Thu, 10 Jul 2014 12:35:59 +0100
Subject: [PC-NCSG] NCPH Election to the Board.
In-Reply-To: <CAC7qwdBTvf9m5dH5t18eP5_krMbj7fKVW_LudnEOrsB2k+WvZA@mail.gmail.com>
References: <53BD3DF0.10400@acm.org>
	<2DA93620FC07494C926D60C8E3C2F1A80164244F@server1.medienkomm.uni-halle.de>
	<C4C017AA-BC32-42AF-9563-5583F4412763@gmail.com>
	<A4827CE8-6184-49C0-8453-448E5B19F3C9@ipjustice.org>
	<53BD7881.2020504@mail.utoronto.ca>
	<B052BF2A-E623-4114-99D6-14901B98793D@difference.com.au>
	<53BDB094.3090003@acm.org>
	<CB110D1B-3B5E-4AAF-8BA5-542668F4FB57@gmail.com>
	<53BE57EB.1010407@gkpfoundation.org> <53BE73AF.5050105@acm.org>
	<CAC7qwdBTvf9m5dH5t18eP5_krMbj7fKVW_LudnEOrsB2k+WvZA@mail.gmail.com>
Message-ID: <CAC7qwdDR7QXLc3VSbFyF+Xz=Jq1caYDdgUqGe=WT9hMiCM+K9w@mail.gmail.com>

Personally, I think we should set up a call with Markus Kummer to find out
more about what he can do / has done for civil society - maybe open it to
the whole NCSG to participate in, albeit the decision to support or not
rests with the PC.

m


On 10 July 2014 12:15, Maria Farrell <maria.farrell at gmail.com> wrote:

> Hi Klaus,
>
> How should we structure the discussion for this - is it something Rudi and
> I should work on as co-chairs?
>
> Do you want us to set up a call to discuss Markus' candidacy and/or any
> other issues?
>
> The NCSG PC is indeed the correct body within the NCSG to make this
> decision (either for or against Markus Kummer or for None of the Above),
> and I'm happy to talk with you to figure out the fairest way of having that
> discussion. As you'll see, I've not declared any interest myself re. his
> potential candidacy. Personally, my only interest is getting this resolved!
>
> All the best, Maria
>
>
> On 10 July 2014 12:06, Avri Doria <avri at acm.org> wrote:
>
>>
>>
>> On 10-Jul-14 05:07, Klaus Stoll wrote:
>> >
>> > Would more consultation first among the NCSG structures (including and
>> > not excluding NPOC) before consultation with outside parties is done not
>> > be the right way to go?
>>
>>
>> i tend to think of the NCSG doing things not the constituencies.  this
>> is an NCSG task.
>>
>> I spoke to most of the council members in London about this, including
>> with you, and only one was against the idea so proceeded to explore the
>> idea with him.
>>
>> If you are saying that NPOC is going to block someone as qualified as
>> Markus let's hear it and get on with it.
>>
>> avri
>>
>>
>>
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>
>
>
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From avri  Fri Jul 11 00:54:18 2014
From: avri (Avri Doria)
Date: Thu, 10 Jul 2014 17:54:18 -0400
Subject: [PC-NCSG] Fwd: Re: [council] X-Community WG on IANA etc.
In-Reply-To: <CFE4C83A.32F4E%marika.konings@icann.org>
References: <CFE4C83A.32F4E%marika.konings@icann.org>
Message-ID: <53BF0B8A.4040109@acm.org>


do we have someone interested in beng designated for this design team?


-------- Original Message --------
Subject: Re: [council] X-Community WG on IANA etc.
Date: Thu, 10 Jul 2014 20:50:13 +0000
From: Marika Konings <marika.konings at icann.org>
To: Avri Doria <avri at acm.org>,        "council at gnso.icann.org"
<council at gnso.icann.org>

Hi Avri, all,

The drafting team to develop the charter for the CWG is having its first
meeting coming Monday. So far, there are representatives from the ccNSO,
ALAC, SSAC and GNSO. Each SG from the GNSO was invited to designate a
representative to the drafting team, but so far only the RySG and RrSG
have assigned one. If the CSG and NCSG have selected their
representatives, we can add these to the mailing list ASAP. This project
should be added to the next iteration of the project list and if/once the
charter has been adopted, a web-page on the GNSO site will also be created.

Best regards,

Marika

On 10/07/14 21:17, "Avri Doria" <avri at acm.org> wrote:

>
>Hi,
>
>Whatever happened on this?  Is there a design team working on a charter.
> I went looking at the projects and activities list to see what was
>going on, and perhaps was blind but did not see it mentioned.  Did a
>team ever start?
>
>When this WG is ready, we might want to make it a point to extend the
>participation invite to the some of the IETF governance and Internet
>Society lists - the ones that are currently fretting about how ICANN
>does not seem to be including them in decision making processes.
>
>
>avri
>
>
>
>
>





From avri  Fri Jul 11 01:47:35 2014
From: avri (Avri Doria)
Date: Thu, 10 Jul 2014 18:47:35 -0400
Subject: [PC-NCSG] Fwd: Re: [] X-Community WG on IANA etc.
In-Reply-To: <53BF0B8A.4040109@acm.org>
References: <CFE4C83A.32F4E%marika.konings@icann.org>
	<53BF0B8A.4040109@acm.org>
Message-ID: <53BF1807.9080801@acm.org>


thinking about it, i seem interested
and if no one else is wanting it,
i would be happy to do it.

avri


On 10-Jul-14 17:54, Avri Doria wrote:
> 
> do we have someone interested in beng designated for this design team?
> 
> 
> -------- Original Message --------
> Subject: Re: [council] X-Community WG on IANA etc.
> Date: Thu, 10 Jul 2014 20:50:13 +0000
> From: Marika Konings <marika.konings at icann.org>
> To: Avri Doria <avri at acm.org>,        "council at gnso.icann.org"
> <council at gnso.icann.org>
> 
> Hi Avri, all,
> 
> The drafting team to develop the charter for the CWG is having its first
> meeting coming Monday. So far, there are representatives from the ccNSO,
> ALAC, SSAC and GNSO. Each SG from the GNSO was invited to designate a
> representative to the drafting team, but so far only the RySG and RrSG
> have assigned one. If the CSG and NCSG have selected their
> representatives, we can add these to the mailing list ASAP. This project
> should be added to the next iteration of the project list and if/once the
> charter has been adopted, a web-page on the GNSO site will also be created.
> 
> Best regards,
> 
> Marika
> 
> On 10/07/14 21:17, "Avri Doria" <avri at acm.org> wrote:
> 
>>
>> Hi,
>>
>> Whatever happened on this?  Is there a design team working on a charter.
>> I went looking at the projects and activities list to see what was
>> going on, and perhaps was blind but did not see it mentioned.  Did a
>> team ever start?
>>
>> When this WG is ready, we might want to make it a point to extend the
>> participation invite to the some of the IETF governance and Internet
>> Society lists - the ones that are currently fretting about how ICANN
>> does not seem to be including them in decision making processes.
>>
>>
>> avri
>>
>>
>>
>>
>>
> 
> 
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
> 
> 



From robin  Fri Jul 11 02:19:25 2014
From: robin (Robin Gross)
Date: Thu, 10 Jul 2014 16:19:25 -0700
Subject: [PC-NCSG] Fwd: Re: [] X-Community WG on IANA etc.
In-Reply-To: <53BF1807.9080801@acm.org>
References: <CFE4C83A.32F4E%marika.konings@icann.org>
	<53BF0B8A.4040109@acm.org> <53BF1807.9080801@acm.org>
Message-ID: <7EA81E17-BC93-40BE-A9CE-4D8FCA771237@ipjustice.org>

You would be excellent for this working group, Avri.  I hope you will do it!

Best,
Robin

On Jul 10, 2014, at 3:47 PM, Avri Doria wrote:

> 
> thinking about it, i seem interested
> and if no one else is wanting it,
> i would be happy to do it.
> 
> avri
> 
> 
> On 10-Jul-14 17:54, Avri Doria wrote:
>> 
>> do we have someone interested in beng designated for this design team?
>> 
>> 
>> -------- Original Message --------
>> Subject: Re: [council] X-Community WG on IANA etc.
>> Date: Thu, 10 Jul 2014 20:50:13 +0000
>> From: Marika Konings <marika.konings at icann.org>
>> To: Avri Doria <avri at acm.org>,        "council at gnso.icann.org"
>> <council at gnso.icann.org>
>> 
>> Hi Avri, all,
>> 
>> The drafting team to develop the charter for the CWG is having its first
>> meeting coming Monday. So far, there are representatives from the ccNSO,
>> ALAC, SSAC and GNSO. Each SG from the GNSO was invited to designate a
>> representative to the drafting team, but so far only the RySG and RrSG
>> have assigned one. If the CSG and NCSG have selected their
>> representatives, we can add these to the mailing list ASAP. This project
>> should be added to the next iteration of the project list and if/once the
>> charter has been adopted, a web-page on the GNSO site will also be created.
>> 
>> Best regards,
>> 
>> Marika
>> 
>> On 10/07/14 21:17, "Avri Doria" <avri at acm.org> wrote:
>> 
>>> 
>>> Hi,
>>> 
>>> Whatever happened on this?  Is there a design team working on a charter.
>>> I went looking at the projects and activities list to see what was
>>> going on, and perhaps was blind but did not see it mentioned.  Did a
>>> team ever start?
>>> 
>>> When this WG is ready, we might want to make it a point to extend the
>>> participation invite to the some of the IETF governance and Internet
>>> Society lists - the ones that are currently fretting about how ICANN
>>> does not seem to be including them in decision making processes.
>>> 
>>> 
>>> avri
>>> 
>>> 
>>> 
>>> 
>>> 
>> 
>> 
>> 
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>> 
>> 
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
> 

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From stephanie.perrin  Fri Jul 11 02:48:00 2014
From: stephanie.perrin (Stephanie Perrin)
Date: Thu, 10 Jul 2014 19:48:00 -0400
Subject: [PC-NCSG] Fwd: Re: [] X-Community WG on IANA etc.
In-Reply-To: <7EA81E17-BC93-40BE-A9CE-4D8FCA771237@ipjustice.org>
References: <CFE4C83A.32F4E%marika.konings@icann.org>	<53BF0B8A.4040109@acm.org>
	<53BF1807.9080801@acm.org>
	<7EA81E17-BC93-40BE-A9CE-4D8FCA771237@ipjustice.org>
Message-ID: <53BF2630.7060507@mail.utoronto.ca>

+1
On 14-07-10 7:19 PM, Robin Gross wrote:
> You would be excellent for this working group, Avri.  I hope you will do it!
>
> Best,
> Robin
>
> On Jul 10, 2014, at 3:47 PM, Avri Doria wrote:
>
>> thinking about it, i seem interested
>> and if no one else is wanting it,
>> i would be happy to do it.
>>
>> avri
>>
>>
>> On 10-Jul-14 17:54, Avri Doria wrote:
>>> do we have someone interested in beng designated for this design team?
>>>
>>>
>>> -------- Original Message --------
>>> Subject: Re: [council] X-Community WG on IANA etc.
>>> Date: Thu, 10 Jul 2014 20:50:13 +0000
>>> From: Marika Konings <marika.konings at icann.org>
>>> To: Avri Doria <avri at acm.org>,        "council at gnso.icann.org"
>>> <council at gnso.icann.org>
>>>
>>> Hi Avri, all,
>>>
>>> The drafting team to develop the charter for the CWG is having its first
>>> meeting coming Monday. So far, there are representatives from the ccNSO,
>>> ALAC, SSAC and GNSO. Each SG from the GNSO was invited to designate a
>>> representative to the drafting team, but so far only the RySG and RrSG
>>> have assigned one. If the CSG and NCSG have selected their
>>> representatives, we can add these to the mailing list ASAP. This project
>>> should be added to the next iteration of the project list and if/once the
>>> charter has been adopted, a web-page on the GNSO site will also be created.
>>>
>>> Best regards,
>>>
>>> Marika
>>>
>>> On 10/07/14 21:17, "Avri Doria" <avri at acm.org> wrote:
>>>
>>>> Hi,
>>>>
>>>> Whatever happened on this?  Is there a design team working on a charter.
>>>> I went looking at the projects and activities list to see what was
>>>> going on, and perhaps was blind but did not see it mentioned.  Did a
>>>> team ever start?
>>>>
>>>> When this WG is ready, we might want to make it a point to extend the
>>>> participation invite to the some of the IETF governance and Internet
>>>> Society lists - the ones that are currently fretting about how ICANN
>>>> does not seem to be including them in decision making processes.
>>>>
>>>>
>>>> avri
>>>>
>>>>
>>>>
>>>>
>>>>
>>>
>>>
>>> _______________________________________________
>>> PC-NCSG mailing list
>>> PC-NCSG at ipjustice.org
>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>
>>>
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>
>
>
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg

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From avri  Fri Jul 11 07:54:30 2014
From: avri (Avri Doria)
Date: Fri, 11 Jul 2014 00:54:30 -0400
Subject: [PC-NCSG] Fwd: Re: [] X-Community WG on IANA etc.
In-Reply-To: <7EA81E17-BC93-40BE-A9CE-4D8FCA771237@ipjustice.org>
References: <CFE4C83A.32F4E%marika.konings@icann.org>
	<53BF0B8A.4040109@acm.org> <53BF1807.9080801@acm.org>
	<7EA81E17-BC93-40BE-A9CE-4D8FCA771237@ipjustice.org>
Message-ID: <53BF6E06.3020302@acm.org>

hi,

at this point is is just the charter drafting team, but thanks.

avri


On 10-Jul-14 19:19, Robin Gross wrote:
> You would be excellent for this working group, Avri.  I hope you will do it!
> 
> Best,
> Robin
> 
> On Jul 10, 2014, at 3:47 PM, Avri Doria wrote:
> 
>>
>> thinking about it, i seem interested
>> and if no one else is wanting it,
>> i would be happy to do it.
>>
>> avri
>>
>>
>> On 10-Jul-14 17:54, Avri Doria wrote:
>>>
>>> do we have someone interested in beng designated for this design team?
>>>
>>>
>>> -------- Original Message --------
>>> Subject: Re: [council] X-Community WG on IANA etc.
>>> Date: Thu, 10 Jul 2014 20:50:13 +0000
>>> From: Marika Konings <marika.konings at icann.org>
>>> To: Avri Doria <avri at acm.org>,        "council at gnso.icann.org"
>>> <council at gnso.icann.org>
>>>
>>> Hi Avri, all,
>>>
>>> The drafting team to develop the charter for the CWG is having its first
>>> meeting coming Monday. So far, there are representatives from the ccNSO,
>>> ALAC, SSAC and GNSO. Each SG from the GNSO was invited to designate a
>>> representative to the drafting team, but so far only the RySG and RrSG
>>> have assigned one. If the CSG and NCSG have selected their
>>> representatives, we can add these to the mailing list ASAP. This project
>>> should be added to the next iteration of the project list and if/once the
>>> charter has been adopted, a web-page on the GNSO site will also be created.
>>>
>>> Best regards,
>>>
>>> Marika
>>>
>>> On 10/07/14 21:17, "Avri Doria" <avri at acm.org> wrote:
>>>
>>>>
>>>> Hi,
>>>>
>>>> Whatever happened on this?  Is there a design team working on a charter.
>>>> I went looking at the projects and activities list to see what was
>>>> going on, and perhaps was blind but did not see it mentioned.  Did a
>>>> team ever start?
>>>>
>>>> When this WG is ready, we might want to make it a point to extend the
>>>> participation invite to the some of the IETF governance and Internet
>>>> Society lists - the ones that are currently fretting about how ICANN
>>>> does not seem to be including them in decision making processes.
>>>>
>>>>
>>>> avri
>>>>
>>>>
>>>>
>>>>
>>>>
>>>
>>>
>>>
>>> _______________________________________________
>>> PC-NCSG mailing list
>>> PC-NCSG at ipjustice.org
>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>
>>>
>>
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>
> 



From rafik.dammak  Fri Jul 11 15:28:56 2014
From: rafik.dammak (Rafik Dammak)
Date: Fri, 11 Jul 2014 21:28:56 +0900
Subject: [PC-NCSG] NCPH Election to the Board.
In-Reply-To: <CAC7qwdDR7QXLc3VSbFyF+Xz=Jq1caYDdgUqGe=WT9hMiCM+K9w@mail.gmail.com>
References: <53BD3DF0.10400@acm.org>
	<2DA93620FC07494C926D60C8E3C2F1A80164244F@server1.medienkomm.uni-halle.de>
	<C4C017AA-BC32-42AF-9563-5583F4412763@gmail.com>
	<A4827CE8-6184-49C0-8453-448E5B19F3C9@ipjustice.org>
	<53BD7881.2020504@mail.utoronto.ca>
	<B052BF2A-E623-4114-99D6-14901B98793D@difference.com.au>
	<53BDB094.3090003@acm.org>
	<CB110D1B-3B5E-4AAF-8BA5-542668F4FB57@gmail.com>
	<53BE57EB.1010407@gkpfoundation.org> <53BE73AF.5050105@acm.org>
	<CAC7qwdBTvf9m5dH5t18eP5_krMbj7fKVW_LudnEOrsB2k+WvZA@mail.gmail.com>
	<CAC7qwdDR7QXLc3VSbFyF+Xz=Jq1caYDdgUqGe=WT9hMiCM+K9w@mail.gmail.com>
Message-ID: <CAH5sTh=gUTHYP8+ez5E4oOx_vUV6DHwNZGLq=b=q7OAX7F50oQ@mail.gmail.com>

Hi,

yes we should have a call , that will gives a chance to Markus and NCSG
membership to know him. and indeed NCSG PC is the place to make any
appointment decision following the usual process regarding consensus.


Best,

Rafik


2014-07-10 20:35 GMT+09:00 Maria Farrell <maria.farrell at gmail.com>:

> Personally, I think we should set up a call with Markus Kummer to find out
> more about what he can do / has done for civil society - maybe open it to
> the whole NCSG to participate in, albeit the decision to support or not
> rests with the PC.
>
> m
>
>
> On 10 July 2014 12:15, Maria Farrell <maria.farrell at gmail.com> wrote:
>
>> Hi Klaus,
>>
>> How should we structure the discussion for this - is it something Rudi
>> and I should work on as co-chairs?
>>
>> Do you want us to set up a call to discuss Markus' candidacy and/or any
>> other issues?
>>
>> The NCSG PC is indeed the correct body within the NCSG to make this
>> decision (either for or against Markus Kummer or for None of the Above),
>> and I'm happy to talk with you to figure out the fairest way of having that
>> discussion. As you'll see, I've not declared any interest myself re. his
>> potential candidacy. Personally, my only interest is getting this resolved!
>>
>> All the best, Maria
>>
>>
>> On 10 July 2014 12:06, Avri Doria <avri at acm.org> wrote:
>>
>>>
>>>
>>> On 10-Jul-14 05:07, Klaus Stoll wrote:
>>> >
>>> > Would more consultation first among the NCSG structures (including and
>>> > not excluding NPOC) before consultation with outside parties is done
>>> not
>>> > be the right way to go?
>>>
>>>
>>> i tend to think of the NCSG doing things not the constituencies.  this
>>> is an NCSG task.
>>>
>>> I spoke to most of the council members in London about this, including
>>> with you, and only one was against the idea so proceeded to explore the
>>> idea with him.
>>>
>>> If you are saying that NPOC is going to block someone as qualified as
>>> Markus let's hear it and get on with it.
>>>
>>> avri
>>>
>>>
>>>
>>> _______________________________________________
>>> PC-NCSG mailing list
>>> PC-NCSG at ipjustice.org
>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>
>>
>>
>
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
>
>
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From avri  Sat Jul 12 15:54:50 2014
From: avri (Avri Doria)
Date: Sat, 12 Jul 2014 08:54:50 -0400
Subject: [PC-NCSG] Fwd: Re: [] X-Community WG on IANA etc.
In-Reply-To: <53BF6E06.3020302@acm.org>
References: <CFE4C83A.32F4E%marika.konings@icann.org>	<53BF0B8A.4040109@acm.org>
	<53BF1807.9080801@acm.org>	<7EA81E17-BC93-40BE-A9CE-4D8FCA771237@ipjustice.org>
	<53BF6E06.3020302@acm.org>
Message-ID: <53C1301A.4020109@acm.org>

Hi,

At this point, since the first meeting is Monday, unless I hear some
objections, I will inform Marika that I will be the NCSG person on the
drafting team for the charter.

Dear chairs, please let me know if I am acting prematurely.

avri


On 11-Jul-14 00:54, Avri Doria wrote:
> hi,
> 
> at this point is is just the charter drafting team, but thanks.
> 
> avri
> 
> 
> On 10-Jul-14 19:19, Robin Gross wrote:
>> You would be excellent for this working group, Avri.  I hope you will do it!
>>
>> Best,
>> Robin
>>
>> On Jul 10, 2014, at 3:47 PM, Avri Doria wrote:
>>
>>>
>>> thinking about it, i seem interested
>>> and if no one else is wanting it,
>>> i would be happy to do it.
>>>
>>> avri
>>>
>>>
>>> On 10-Jul-14 17:54, Avri Doria wrote:
>>>>
>>>> do we have someone interested in beng designated for this design team?
>>>>
>>>>
>>>> -------- Original Message --------
>>>> Subject: Re: [council] X-Community WG on IANA etc.
>>>> Date: Thu, 10 Jul 2014 20:50:13 +0000
>>>> From: Marika Konings <marika.konings at icann.org>
>>>> To: Avri Doria <avri at acm.org>,        "council at gnso.icann.org"
>>>> <council at gnso.icann.org>
>>>>
>>>> Hi Avri, all,
>>>>
>>>> The drafting team to develop the charter for the CWG is having its first
>>>> meeting coming Monday. So far, there are representatives from the ccNSO,
>>>> ALAC, SSAC and GNSO. Each SG from the GNSO was invited to designate a
>>>> representative to the drafting team, but so far only the RySG and RrSG
>>>> have assigned one. If the CSG and NCSG have selected their
>>>> representatives, we can add these to the mailing list ASAP. This project
>>>> should be added to the next iteration of the project list and if/once the
>>>> charter has been adopted, a web-page on the GNSO site will also be created.
>>>>
>>>> Best regards,
>>>>
>>>> Marika
>>>>
>>>> On 10/07/14 21:17, "Avri Doria" <avri at acm.org> wrote:
>>>>
>>>>>
>>>>> Hi,
>>>>>
>>>>> Whatever happened on this?  Is there a design team working on a charter.
>>>>> I went looking at the projects and activities list to see what was
>>>>> going on, and perhaps was blind but did not see it mentioned.  Did a
>>>>> team ever start?
>>>>>
>>>>> When this WG is ready, we might want to make it a point to extend the
>>>>> participation invite to the some of the IETF governance and Internet
>>>>> Society lists - the ones that are currently fretting about how ICANN
>>>>> does not seem to be including them in decision making processes.
>>>>>
>>>>>
>>>>> avri
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
>>>>
>>>>
>>>>
>>>> _______________________________________________
>>>> PC-NCSG mailing list
>>>> PC-NCSG at ipjustice.org
>>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>>
>>>>
>>>
>>> _______________________________________________
>>> PC-NCSG mailing list
>>> PC-NCSG at ipjustice.org
>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>
>>
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
> 
> 



From magaly.pazello  Wed Jul 16 05:41:51 2014
From: magaly.pazello (Magaly Pazello)
Date: Tue, 15 Jul 2014 23:41:51 -0300
Subject: [PC-NCSG] NCPH Election to the Board.
In-Reply-To: <B052BF2A-E623-4114-99D6-14901B98793D@difference.com.au>
References: <53BD3DF0.10400@acm.org>
	<2DA93620FC07494C926D60C8E3C2F1A80164244F@server1.medienkomm.uni-halle.de>
	<C4C017AA-BC32-42AF-9563-5583F4412763@gmail.com>
	<A4827CE8-6184-49C0-8453-448E5B19F3C9@ipjustice.org>
	<53BD7881.2020504@mail.utoronto.ca>
	<B052BF2A-E623-4114-99D6-14901B98793D@difference.com.au>
Message-ID: <CA+dOKfA-hGckmcjtiGUr1siQd4oi=db-aL-AF__1uOpytTyqiw@mail.gmail.com>

I also strongly support Avri's proposal and full agree with David comments.

Magaly


On Wed, Jul 9, 2014 at 3:10 PM, David Cake <dave at difference.com.au> wrote:

> I strongly support the nomination of Markus.
>
> I have felt strongly that since the rejection of Sam by the CSG, that our
> best strategy was to seek a candidate who represented a strong consensus -
> not just proposed by one and accepted by the other, but with strong active
> support within both houses. I believe Markus has that support - and his
> great understanding of Internet governance and support for
> multistakeholderism is exactly what I think we need on the board right now.
>
> I understand that he may not have 100% support right now, and we should
> certainly have some discussion to see if any concerns about his candidacy
> can be addressed - but I think he is a great candidate.
>
> David
>
> Sent from my iPad
>
> On 9 Jul 2014, at 6:14 pm, Stephanie Perrin <
> stephanie.perrin at mail.utoronto.ca> wrote:
>
> Same here.
> Stephanie P
> On 14-07-09 12:58 PM, Robin Gross wrote:
>
> Here's another enthusiastic expression of strong support for Markus Kummer as our board representative!  That was a rather brilliant idea, Avri!
>
> Thanks,
> Robin
>
> On Jul 9, 2014, at 6:30 AM, William Drake wrote:
>
>
>  yes per previous strong support from the peanut gallery.
>
> Bill
>
> On Jul 9, 2014, at 3:16 PM, Kleinw?chter, Wolfgang <wolfgang.kleinwaechter at medienkomm.uni-halle.de> <wolfgang.kleinwaechter at medienkomm.uni-halle.de> wrote:
>
>
>  I strongly support Avris proposal.
>
> Wolfgang
>
>
>
>
> -----Urspr?ngliche Nachricht-----
> Von: PC-NCSG im Auftrag von Avri Doria
> Gesendet: Mi 09.07.2014 15:04
> An: pc-ncsg at ipjustice.org
> Betreff: [PC-NCSG] NCPH Election to the Board.
>
>
>
> Hi,
>
> As far as I can tell we have decided to reject Dan as a compromise
> candidate. I thought that we had already conveyed this to the CSG and to
> Dan.  I know hear that we may not have done this yet, which seems rather
> amiss.  We should do so ASAP.
>
> And as we saw much of the NCSG-PC rejected the idea of proposing a vote
> between Sam and Dan.
>
> So it is time for the next step.
>
> While I had at one point thought that suggesting Bill Drake might be a
> good compromise as he is known both for his works and for being able to
> talk to the CSG successfully.  But I have since become convinced that no
> one from NCPH or from either of the SGs in it can be elected at this
> time in our relations. I now suggest, that we propose someone from
> outside the tussle between the CSG and NCSG and the politics of NCPH.
>
> Worry about finding someone who could bring something to the Board that
> the Board needs more than our internecine politics.  In this case I
> think the Board would do well to another voice on Internet governance.
>
> I suggest we propose Markus Kummer as a compromise candidate.  He is
> well experienced at the senor levels and understands Internet governance
> mechanisms and considerations better that most.  He has also, to my
> knowledge never behaved preferentially to either business or civil
> society, and has in fact tried to bring them together in WSIS, IGF and
> in the Internet society.  He is a known champion of Multistakeholderism
> (m17m).  And as he is in the process of retiring from ISOC, he is
> available.
>
> I have spoken to many of you about this and most have seemed agreeable,
> thought there has been one strong objection.  Several have also sounded
> the CSG on this.  They show some willingness to consider it, but they
> are waiting for a firm proposal from us.
>
> I spoke to Markus about this possibility, and after some consideration,
> he is willing to be put forward by us.
>
> So, since the PC is the one that that comes up with rough consensus on
> candidates,  I ask for a rough-consensus call to suggest Markus Kummer
> as our compromise candidate for GNSO-NCPH elected Board Seat
>
> thanks
>
> avri
>
>
> _______________________________________________
> PC-NCSG mailing listPC-NCSG at ipjustice.orghttp://mailman.ipjustice.org/listinfo/pc-ncsg
>
>
> _______________________________________________
> PC-NCSG mailing listPC-NCSG at ipjustice.orghttp://mailman.ipjustice.org/listinfo/pc-ncsg
>
>  ***********************************************
> William J. Drake
> International Fellow & Lecturer
>  Media Change & Innovation Division, IPMZ
>  University of Zurich, Switzerland
> Chair, Noncommercial Users Constituency,
>  ICANN, www.ncuc.orgwilliam.drake at uzh.ch (direct), wjdrake at gmail.com (lists),
>  www.williamdrake.org
> ***********************************************
>
>
> _______________________________________________
> PC-NCSG mailing listPC-NCSG at ipjustice.orghttp://mailman.ipjustice.org/listinfo/pc-ncsg
>
>
>
> _______________________________________________
> PC-NCSG mailing listPC-NCSG at ipjustice.orghttp://mailman.ipjustice.org/listinfo/pc-ncsg
>
>
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
>
>
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
>
>
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From magaly.pazello  Wed Jul 16 06:04:34 2014
From: magaly.pazello (Magaly Pazello)
Date: Wed, 16 Jul 2014 00:04:34 -0300
Subject: [PC-NCSG] NCPH Election to the Board.
In-Reply-To: <CAH5sTh=gUTHYP8+ez5E4oOx_vUV6DHwNZGLq=b=q7OAX7F50oQ@mail.gmail.com>
References: <53BD3DF0.10400@acm.org>
	<2DA93620FC07494C926D60C8E3C2F1A80164244F@server1.medienkomm.uni-halle.de>
	<C4C017AA-BC32-42AF-9563-5583F4412763@gmail.com>
	<A4827CE8-6184-49C0-8453-448E5B19F3C9@ipjustice.org>
	<53BD7881.2020504@mail.utoronto.ca>
	<B052BF2A-E623-4114-99D6-14901B98793D@difference.com.au>
	<53BDB094.3090003@acm.org>
	<CB110D1B-3B5E-4AAF-8BA5-542668F4FB57@gmail.com>
	<53BE57EB.1010407@gkpfoundation.org> <53BE73AF.5050105@acm.org>
	<CAC7qwdBTvf9m5dH5t18eP5_krMbj7fKVW_LudnEOrsB2k+WvZA@mail.gmail.com>
	<CAC7qwdDR7QXLc3VSbFyF+Xz=Jq1caYDdgUqGe=WT9hMiCM+K9w@mail.gmail.com>
	<CAH5sTh=gUTHYP8+ez5E4oOx_vUV6DHwNZGLq=b=q7OAX7F50oQ@mail.gmail.com>
Message-ID: <CA+dOKfCj-T60ScZFfa1puGW9Wh2unW6h3HA8w5JyRVnYa8N1pg@mail.gmail.com>

Sounds great!

Magaly


On Fri, Jul 11, 2014 at 9:28 AM, Rafik Dammak <rafik.dammak at gmail.com>
wrote:

> Hi,
>
> yes we should have a call , that will gives a chance to Markus and NCSG
> membership to know him. and indeed NCSG PC is the place to make any
> appointment decision following the usual process regarding consensus.
>
>
> Best,
>
> Rafik
>
>
> 2014-07-10 20:35 GMT+09:00 Maria Farrell <maria.farrell at gmail.com>:
>
> Personally, I think we should set up a call with Markus Kummer to find out
>> more about what he can do / has done for civil society - maybe open it to
>> the whole NCSG to participate in, albeit the decision to support or not
>> rests with the PC.
>>
>> m
>>
>>
>> On 10 July 2014 12:15, Maria Farrell <maria.farrell at gmail.com> wrote:
>>
>>> Hi Klaus,
>>>
>>> How should we structure the discussion for this - is it something Rudi
>>> and I should work on as co-chairs?
>>>
>>> Do you want us to set up a call to discuss Markus' candidacy and/or any
>>> other issues?
>>>
>>> The NCSG PC is indeed the correct body within the NCSG to make this
>>> decision (either for or against Markus Kummer or for None of the Above),
>>> and I'm happy to talk with you to figure out the fairest way of having that
>>> discussion. As you'll see, I've not declared any interest myself re. his
>>> potential candidacy. Personally, my only interest is getting this resolved!
>>>
>>> All the best, Maria
>>>
>>>
>>> On 10 July 2014 12:06, Avri Doria <avri at acm.org> wrote:
>>>
>>>>
>>>>
>>>> On 10-Jul-14 05:07, Klaus Stoll wrote:
>>>> >
>>>> > Would more consultation first among the NCSG structures (including and
>>>> > not excluding NPOC) before consultation with outside parties is done
>>>> not
>>>> > be the right way to go?
>>>>
>>>>
>>>> i tend to think of the NCSG doing things not the constituencies.  this
>>>> is an NCSG task.
>>>>
>>>> I spoke to most of the council members in London about this, including
>>>> with you, and only one was against the idea so proceeded to explore the
>>>> idea with him.
>>>>
>>>> If you are saying that NPOC is going to block someone as qualified as
>>>> Markus let's hear it and get on with it.
>>>>
>>>> avri
>>>>
>>>>
>>>>
>>>> _______________________________________________
>>>> PC-NCSG mailing list
>>>> PC-NCSG at ipjustice.org
>>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>>
>>>
>>>
>>
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>
>>
>
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
>
>
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From maria.farrell  Thu Jul 17 13:46:19 2014
From: maria.farrell (Maria Farrell)
Date: Thu, 17 Jul 2014 11:46:19 +0100
Subject: [PC-NCSG] Discussion with possible candidate for Bd Seat 14
Message-ID: <CAC7qwdAyrMFvv1GyfWiwpRC0j+NEscnsy+tjRHuwzNb6dkjEog@mail.gmail.com>

Dear PC colleagues,

It looks like Markus Kummer, currently of ISOC, will be able to join next
week's NCSG Policy call to discuss with us what he thinks he could bring as
a candidate for Board Seat 14.

That is the NCSG monthly policy call on Tuesday 22 July at 1500 UTC.

I've asked Rafik to see if he can change the agenda of that call to include
a 20 - 30 minute slot with Markus at the beginning of the call. If that is
ok, then we will go ahead - I just wanted to give everyone on the PC the
most possible fore-warning of this item.

So, assuming all well with the agenda change per Rafik, the 'official'
opportunity to ask questions and here from Markus Kummer about why we
should consider him as a Board candidate will be next Tues, 1500 UTC.

I will forward the call details to this list as soon as I get the
confirmation about the agenda change. (NB they have already been circulated
to the NCSG Discuss list, but with the original agenda.)

I will also ask Mr Kummer to send us an up to date CV so that we can do any
necessary research and be prepared to ask pertinent questions about his
background.

All the best, m
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From wjdrake  Thu Jul 17 13:47:22 2014
From: wjdrake (William Drake)
Date: Thu, 17 Jul 2014 12:47:22 +0200
Subject: [PC-NCSG] Discussion with possible candidate for Bd Seat 14
In-Reply-To: <CAC7qwdAyrMFvv1GyfWiwpRC0j+NEscnsy+tjRHuwzNb6dkjEog@mail.gmail.com>
References: <CAC7qwdAyrMFvv1GyfWiwpRC0j+NEscnsy+tjRHuwzNb6dkjEog@mail.gmail.com>
Message-ID: <49C61CE8-5649-4967-869A-9F7CBD8F5E3F@gmail.com>

Excellent news, Maria

Bill

On Jul 17, 2014, at 12:46 PM, Maria Farrell <maria.farrell at gmail.com> wrote:

> Dear PC colleagues,
> 
> It looks like Markus Kummer, currently of ISOC, will be able to join next week's NCSG Policy call to discuss with us what he thinks he could bring as a candidate for Board Seat 14. 
> 
> That is the NCSG monthly policy call on Tuesday 22 July at 1500 UTC. 
> 
> I've asked Rafik to see if he can change the agenda of that call to include a 20 - 30 minute slot with Markus at the beginning of the call. If that is ok, then we will go ahead - I just wanted to give everyone on the PC the most possible fore-warning of this item. 
> 
> So, assuming all well with the agenda change per Rafik, the 'official' opportunity to ask questions and here from Markus Kummer about why we should consider him as a Board candidate will be next Tues, 1500 UTC. 
> 
> I will forward the call details to this list as soon as I get the confirmation about the agenda change. (NB they have already been circulated to the NCSG Discuss list, but with the original agenda.)
> 
> I will also ask Mr Kummer to send us an up to date CV so that we can do any necessary research and be prepared to ask pertinent questions about his background.
> 
> All the best, m
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg

 


From rafik.dammak  Fri Jul 18 04:58:50 2014
From: rafik.dammak (Rafik Dammak)
Date: Fri, 18 Jul 2014 10:58:50 +0900
Subject: [PC-NCSG] new NPOC representative in NCSG PC
Message-ID: <CAH5sThkL477-K8OO_xZw-Md9MqGNFe3qM2rJ2fLTFET4H6m1CA@mail.gmail.com>

Hi everyone,

For information, Sam was appointed from NPOC as their new representative in
the NCSG PC to replace Marie-Laure.
Welcome Sam!

Best Regards,

Rafik
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From magaly.pazello  Fri Jul 18 05:03:58 2014
From: magaly.pazello (Magaly Pazello)
Date: Thu, 17 Jul 2014 23:03:58 -0300
Subject: [PC-NCSG] Discussion with possible candidate for Bd Seat 14
In-Reply-To: <CAC7qwdAyrMFvv1GyfWiwpRC0j+NEscnsy+tjRHuwzNb6dkjEog@mail.gmail.com>
References: <CAC7qwdAyrMFvv1GyfWiwpRC0j+NEscnsy+tjRHuwzNb6dkjEog@mail.gmail.com>
Message-ID: <CA+dOKfB9oy05ye5=ihkQjoy-orSP6ghDoiOh7kSxDE_H5CNZag@mail.gmail.com>

Great, Maria!
Magaly


On Thu, Jul 17, 2014 at 7:46 AM, Maria Farrell <maria.farrell at gmail.com>
wrote:

> Dear PC colleagues,
>
> It looks like Markus Kummer, currently of ISOC, will be able to join next
> week's NCSG Policy call to discuss with us what he thinks he could bring as
> a candidate for Board Seat 14.
>
> That is the NCSG monthly policy call on Tuesday 22 July at 1500 UTC.
>
> I've asked Rafik to see if he can change the agenda of that call to
> include a 20 - 30 minute slot with Markus at the beginning of the call. If
> that is ok, then we will go ahead - I just wanted to give everyone on the
> PC the most possible fore-warning of this item.
>
> So, assuming all well with the agenda change per Rafik, the 'official'
> opportunity to ask questions and here from Markus Kummer about why we
> should consider him as a Board candidate will be next Tues, 1500 UTC.
>
> I will forward the call details to this list as soon as I get the
> confirmation about the agenda change. (NB they have already been circulated
> to the NCSG Discuss list, but with the original agenda.)
>
> I will also ask Mr Kummer to send us an up to date CV so that we can do
> any necessary research and be prepared to ask pertinent questions about his
> background.
>
> All the best, m
>
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
>
>
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From maria.farrell  Tue Jul 22 20:14:52 2014
From: maria.farrell (Maria Farrell)
Date: Tue, 22 Jul 2014 18:14:52 +0100
Subject: [PC-NCSG] Fwd: [council] Reminder: Call for candidates: GNSO
	Liaison to the GAC
In-Reply-To: <014e01cfa5b0$b6767f40$23637dc0$@afilias.info>
References: <abaada2da2874284a5ea7a5fbc646e7d@PMBX112-W1-CA-1.PEXCH112.ICANN.ORG>
	<014e01cfa5b0$b6767f40$23637dc0$@afilias.info>
Message-ID: <CAC7qwdCqDkwKKkK--coFkcDZmNs866CPEeJ1FqsVkwn5Np0L3g@mail.gmail.com>

Hi PC members,

2 things:

1 Markus Kummer joined our NCSG monthly policy call today to talk about his
candidacy for Board Seat 14. Let's discuss whether we want to support him.

2  Below is the forwarded message from Glen / Jonathan re. putting
candidates forward for the position of GNSO liaison to the GAC. That
position would come with paid travel support though would require the
person to sit in the GAC most of the week. Rudi has suggested Klaus for
this role - to Glen. It turns out we need to make the decision for this at
the Stakeholder Group level, so let's also discuss this. I'll send a
message to the NCUC Discuss list letting them know the PC will be working
on this.

Great to talk to everyone today on the call. Anyone who missed it can ping
me for an update.

All the best, Maria

---------- Forwarded message ----------
From: Jonathan Robinson <jrobinson at afilias.info>
Date: 22 July 2014 14:27
Subject: RE: [council] Reminder: Call for candidates: GNSO Liaison to the
GAC
To: Glen de Saint G?ry <Glen at icann.org>, council at gnso.icann.org



Thanks Glen,

We are looking for candidates to effectively represent the GNSO policy
process and policy development work.

We do not necessarily need a submission from all SGs and the liaison will
certainly not represent any SG / constituency in particular.

Ultimately, we are looking for quality candidates who can meet the
specification and represent the GNSO as above.

Jonathan

-----Original Message-----
From: Glen de Saint G?ry [mailto:Glen at icann.org]
Sent: 22 July 2014 13:47
To: <council at gnso.icann.org>
Subject: [council] Reminder: Call for candidates: GNSO Liaison to the GAC


Dear  All,

Just a reminder each Stakeholder Group / Constituency is expected to submit
the application of its candidate(s), by 31 July 2014 at the latest to the
GNSO Secretariat (gnso.secretariat at gnso.icann.org).

Thank you

Kind regards,

Glen

Glen de Saint G?ry
GNSO Secretariat
gnso.secretariat at gnso.icann.org
http://gnso.icann.org


-----Original Message-----
From: owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org] On
Behalf Of Glen de Saint G?ry
Sent: mercredi 9 juillet 2014 00:01
To: 'GNSO Council List'
Subject: [council] Call for candidates: GNSO Liaison to the GAC

Dear All,

Please find attached the call for candidates for the GNSO Liaison to the
GAC. The attached document outlines amongst others the process for
applications - please note that the leadership of each Stakeholder Group /
Constituency is expected to submit the application of its candidate(s), by
31 July 2014 at the latest to the GNSO Secretariat
(gnso.secretariat at gnso.icann.org).

Thank you.
Kind regards,

Glen

Glen de Saint G?ry
GNSO Secretariat
gnso.secretariat at gnso.icann.org
http://gnso.icann.org
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From avri  Tue Jul 22 20:23:45 2014
From: avri (Avri Doria)
Date: Tue, 22 Jul 2014 13:23:45 -0400
Subject: [PC-NCSG] Fwd: [council] Reminder: Call for candidates: GNSO
 Liaison to the GAC
In-Reply-To: <CAC7qwdCqDkwKKkK--coFkcDZmNs866CPEeJ1FqsVkwn5Np0L3g@mail.gmail.com>
References: <abaada2da2874284a5ea7a5fbc646e7d@PMBX112-W1-CA-1.PEXCH112.ICANN.ORG>	<014e01cfa5b0$b6767f40$23637dc0$@afilias.info>
	<CAC7qwdCqDkwKKkK--coFkcDZmNs866CPEeJ1FqsVkwn5Np0L3g@mail.gmail.com>
Message-ID: <53CE9E21.8080906@acm.org>



On 22-Jul-14 13:14, Maria Farrell wrote:
> 
> 1 Markus Kummer joined our NCSG monthly policy call today to talk about
> his candidacy for Board Seat 14. Let's discuss whether we want to
> support him.


I believe we should support him and should say so as soon as possible.

avri



From aelsadr  Tue Jul 22 21:04:34 2014
From: aelsadr (Amr Elsadr)
Date: Tue, 22 Jul 2014 20:04:34 +0200
Subject: [PC-NCSG] Fwd: [council] Reminder: Call for candidates: GNSO
	Liaison to the GAC
In-Reply-To: <CAC7qwdCqDkwKKkK--coFkcDZmNs866CPEeJ1FqsVkwn5Np0L3g@mail.gmail.com>
References: <abaada2da2874284a5ea7a5fbc646e7d@PMBX112-W1-CA-1.PEXCH112.ICANN.ORG>
	<014e01cfa5b0$b6767f40$23637dc0$@afilias.info>
	<CAC7qwdCqDkwKKkK--coFkcDZmNs866CPEeJ1FqsVkwn5Np0L3g@mail.gmail.com>
Message-ID: <D5A2D7E3-4463-4774-8B03-43CB582198DA@egyptig.org>

Hi Maria,

On Jul 22, 2014, at 7:14 PM, Maria Farrell <maria.farrell at gmail.com> wrote:

> 2  Below is the forwarded message from Glen / Jonathan re. putting candidates forward for the position of GNSO liaison to the GAC. That position would come with paid travel support though would require the person to sit in the GAC most of the week. Rudi has suggested Klaus for this role - to Glen. It turns out we need to make the decision for this at the Stakeholder Group level, so let's also discuss this. I'll send a message to the NCUC Discuss list letting them know the PC will be working on this. 

Actually?, the way I read it, both SGs and constituencies can submit applications. Have I missed something?

Thanks.

Amr


From aelsadr  Tue Jul 22 21:05:21 2014
From: aelsadr (Amr Elsadr)
Date: Tue, 22 Jul 2014 20:05:21 +0200
Subject: [PC-NCSG] Fwd: [council] Reminder: Call for candidates: GNSO
	Liaison to the GAC
In-Reply-To: <53CE9E21.8080906@acm.org>
References: <abaada2da2874284a5ea7a5fbc646e7d@PMBX112-W1-CA-1.PEXCH112.ICANN.ORG>	<014e01cfa5b0$b6767f40$23637dc0$@afilias.info>
	<CAC7qwdCqDkwKKkK--coFkcDZmNs866CPEeJ1FqsVkwn5Np0L3g@mail.gmail.com>
	<53CE9E21.8080906@acm.org>
Message-ID: <FE3E64BD-0EA9-4009-A89A-F3903C3EB1A7@egyptig.org>

I have no problem supporting Markus.

Thanks.

Amr

On Jul 22, 2014, at 7:23 PM, Avri Doria <avri at acm.org> wrote:

> 
> 
> On 22-Jul-14 13:14, Maria Farrell wrote:
>> 
>> 1 Markus Kummer joined our NCSG monthly policy call today to talk about
>> his candidacy for Board Seat 14. Let's discuss whether we want to
>> support him.
> 
> 
> I believe we should support him and should say so as soon as possible.
> 
> avri
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg




From robin  Tue Jul 22 20:54:00 2014
From: robin (Robin Gross)
Date: Tue, 22 Jul 2014 10:54:00 -0700
Subject: [PC-NCSG] Fwd: [council] Reminder: Call for candidates: GNSO
	Liaison to the GAC
In-Reply-To: <53CE9E21.8080906@acm.org>
References: <abaada2da2874284a5ea7a5fbc646e7d@PMBX112-W1-CA-1.PEXCH112.ICANN.ORG>	<014e01cfa5b0$b6767f40$23637dc0$@afilias.info>
	<CAC7qwdCqDkwKKkK--coFkcDZmNs866CPEeJ1FqsVkwn5Np0L3g@mail.gmail.com>
	<53CE9E21.8080906@acm.org>
Message-ID: <430C93FB-3EF9-4253-AB79-B12943B1E563@ipjustice.org>

(From the peanut gallery) I agree 100%.  Markus has always had an open door to civil society - I know from personal experience ever since the IGF MAG was first created (almost a decade ago) and he ran its administration.  As I was a member of the IGF MAG for civil society at the time, working with Markus was a delightful change in that he really did take civil society into account, something we don't typically get from such "high level" actors in global governance systems.  And it has been that way with him ever since.  We would be very well positioned to have Markus as our board representative.  Let's make it happen.

Robin

On Jul 22, 2014, at 10:23 AM, Avri Doria wrote:

> 
> 
> On 22-Jul-14 13:14, Maria Farrell wrote:
>> 
>> 1 Markus Kummer joined our NCSG monthly policy call today to talk about
>> his candidacy for Board Seat 14. Let's discuss whether we want to
>> support him.
> 
> 
> I believe we should support him and should say so as soon as possible.
> 
> avri
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
> 

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From stephanie.perrin  Tue Jul 22 22:12:11 2014
From: stephanie.perrin (Stephanie Perrin)
Date: Tue, 22 Jul 2014 15:12:11 -0400
Subject: [PC-NCSG] Fwd: [council] Reminder: Call for candidates: GNSO
 Liaison to the GAC
In-Reply-To: <53CE9E21.8080906@acm.org>
References: <abaada2da2874284a5ea7a5fbc646e7d@PMBX112-W1-CA-1.PEXCH112.ICANN.ORG>	<014e01cfa5b0$b6767f40$23637dc0$@afilias.info>	<CAC7qwdCqDkwKKkK--coFkcDZmNs866CPEeJ1FqsVkwn5Np0L3g@mail.gmail.com>
	<53CE9E21.8080906@acm.org>
Message-ID: <53CEB78B.9000804@mail.utoronto.ca>

+1
steph
On 14-07-22 1:23 PM, Avri Doria wrote:
>
> On 22-Jul-14 13:14, Maria Farrell wrote:
>> 1 Markus Kummer joined our NCSG monthly policy call today to talk about
>> his candidacy for Board Seat 14. Let's discuss whether we want to
>> support him.
>
> I believe we should support him and should say so as soon as possible.
>
> avri
>
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg




From mariliamaciel  Wed Jul 23 02:45:46 2014
From: mariliamaciel (Marilia Maciel)
Date: Tue, 22 Jul 2014 20:45:46 -0300
Subject: [PC-NCSG] Fwd: [council] Reminder: Call for candidates: GNSO
 Liaison to the GAC
In-Reply-To: <430C93FB-3EF9-4253-AB79-B12943B1E563@ipjustice.org>
References: <abaada2da2874284a5ea7a5fbc646e7d@PMBX112-W1-CA-1.PEXCH112.ICANN.ORG>
	<014e01cfa5b0$b6767f40$23637dc0$@afilias.info>
	<CAC7qwdCqDkwKKkK--coFkcDZmNs866CPEeJ1FqsVkwn5Np0L3g@mail.gmail.com>
	<53CE9E21.8080906@acm.org>
	<430C93FB-3EF9-4253-AB79-B12943B1E563@ipjustice.org>
Message-ID: <CACpVkK2EmHTWhR10c9JGqSOD8ywpr-PhyLwXD_ZJS4j3dNfQ2A@mail.gmail.com>

Hi all, I agree with supporting Markus and I subscribe to all of the
compliments made by Robin, about skills, openness and personality.

However, I just would like to take the opportunity to stress one thing,
which should not at all be read as a personal comment related to Markus.
Only a process that is seriously malfunctioning would make someone that
comes from the governmental sector and is leaving the technical community
(we know the problems of revolving doors) the only option that seems viable
to non-commercial interests and civil society. It is a pitty we could not
manage to see Avri or Sam there. And it is also a pitty that the GNSO
review will conveniently avoid such problems.

Best
Mar?lia


On Tue, Jul 22, 2014 at 2:54 PM, Robin Gross <robin at ipjustice.org> wrote:

> (From the peanut gallery) I agree 100%.  Markus has always had an open
> door to civil society - I know from personal experience ever since the IGF
> MAG was first created (almost a decade ago) and he ran its administration.
>  As I was a member of the IGF MAG for civil society at the time, working
> with Markus was a delightful change in that he really did take civil
> society into account, something we don't typically get from such "high
> level" actors in global governance systems.  And it has been that way with
> him ever since.  We would be very well positioned to have Markus as our
> board representative.  Let's make it happen.
>
> Robin
>
> On Jul 22, 2014, at 10:23 AM, Avri Doria wrote:
>
> >
> >
> > On 22-Jul-14 13:14, Maria Farrell wrote:
> >>
> >> 1 Markus Kummer joined our NCSG monthly policy call today to talk about
> >> his candidacy for Board Seat 14. Let's discuss whether we want to
> >> support him.
> >
> >
> > I believe we should support him and should say so as soon as possible.
> >
> > avri
> >
> > _______________________________________________
> > PC-NCSG mailing list
> > PC-NCSG at ipjustice.org
> > http://mailman.ipjustice.org/listinfo/pc-ncsg
> >
>
>
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
>
>


-- 
*Mar?lia Maciel*
Pesquisadora Gestora - Centro de Tecnologia e Sociedade - FGV Direito Rio
Researcher and Coordinator - Center for Technology & Society - FGV Law
School
http://direitorio.fgv.br/cts

DiploFoundation associate - www.diplomacy.edu
PoliTICs Magazine Advisory Committee - http://www.politics.org.br/
Subscribe "Digital Rights: Latin America & the Caribbean" -
http://www.digitalrightslac.net/en
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From robin  Wed Jul 23 02:58:28 2014
From: robin (Robin Gross)
Date: Tue, 22 Jul 2014 16:58:28 -0700
Subject: [PC-NCSG] Regarding 24 "Enhancing ICANN Accountability working
	group"
Message-ID: <DDD53BF5-C344-44F0-B8F1-E6F7864589E5@ipjustice.org>


I have a request for our GNSO Councilors to raise an issue during this week's GNSO Council meeting during the IANA transition discussion item.

Regarding:  ICANN press release of 6 May 2014 announcing creation of ICANN Accountability working group:
https://www.icann.org/news/announcement-2014-05-07-en
Update: The discussions around enhancing ICANN Accountability are very important. Community feedback has noted the desire for a longer comment period for this proposed process. In response to ensuring the community has sufficient time, while also having the process in parallel to, and informing, the process to Transition NTIA's Stewardship of the IANA Functions, there is a one (1) week extension of the comment period to 6 June. Community members are urged to continue identifying members for the Working Group, with those selected by theICANN London meeting to hold a listening session with the community.

But nothing has moved forward on this accountability working group.  I know staff is not keen for the community to be discussing ICANN's accountability problems (certainly not before the IANA transition group is well ahead of the accountability group), so it will require some prodding from the community to make this accountability group move forward.  

Will our councilors please request a status update from staff on this issue and request that the accountability group be convened forthwith?

Thank you,
Robin





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From avri  Wed Jul 23 03:39:26 2014
From: avri (avri)
Date: Tue, 22 Jul 2014 20:39:26 -0400
Subject: [PC-NCSG] Fwd: [council] Reminder: Call for candidates: GNSO
 Liaison to the GAC
Message-ID: <f7norci61mhd416kw5rkb8xx.1406075966880@email.android.com>

Hi.?

I don't understand why the review is going to avoid this. If enough people mention that it is a problem on the questionnaire, it can be dealt with, I think. ?

As for the board seat, it had to be someone both ncsg and csg can agree on.


avri

Sent from a T-Mobile 4G LTE Device

<div>-------- Original message --------</div><div>From: Marilia Maciel <mariliamaciel at gmail.com> </div><div>Date:07/22/2014  7:45 PM  (GMT-05:00) </div><div>To: Robin Gross <robin at ipjustice.org> </div><div>Cc: NCSG-Policy NCSG-Policy <pc-ncsg at ipjustice.org> </div><div>Subject: Re: [PC-NCSG] Fwd: [council] Reminder: Call for candidates: GNSO Liaison to the GAC </div><div>
</div>Hi all, I agree with supporting Markus and I subscribe to all of the compliments made by Robin, about skills, openness and personality. 

However, I just would like to take the opportunity to stress one thing, which should not at all be read as a personal comment related to Markus. Only a process that is seriously malfunctioning would make someone that comes from the governmental sector and is leaving the technical community (we know the problems of revolving doors) the only option that seems viable to non-commercial interests and civil society. It is a pitty we could not manage to see Avri or Sam there. And it is also a pitty that the GNSO review will conveniently avoid such problems. 

Best 
Mar?lia


On Tue, Jul 22, 2014 at 2:54 PM, Robin Gross <robin at ipjustice.org> wrote:
(From the peanut gallery) I agree 100%.  Markus has always had an open door to civil society - I know from personal experience ever since the IGF MAG was first created (almost a decade ago) and he ran its administration.  As I was a member of the IGF MAG for civil society at the time, working with Markus was a delightful change in that he really did take civil society into account, something we don't typically get from such "high level" actors in global governance systems.  And it has been that way with him ever since.  We would be very well positioned to have Markus as our board representative.  Let's make it happen.

Robin

On Jul 22, 2014, at 10:23 AM, Avri Doria wrote:

>
>
> On 22-Jul-14 13:14, Maria Farrell wrote:
>>
>> 1 Markus Kummer joined our NCSG monthly policy call today to talk about
>> his candidacy for Board Seat 14. Let's discuss whether we want to
>> support him.
>
>
> I believe we should support him and should say so as soon as possible.
>
> avri
>
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
>


_______________________________________________
PC-NCSG mailing list
PC-NCSG at ipjustice.org
http://mailman.ipjustice.org/listinfo/pc-ncsg




-- 
Mar?lia Maciel
Pesquisadora Gestora - Centro de Tecnologia e Sociedade - FGV Direito Rio
Researcher and Coordinator - Center for Technology & Society - FGV Law School
http://direitorio.fgv.br/cts

DiploFoundation associate - www.diplomacy.edu
PoliTICs Magazine Advisory Committee - http://www.politics.org.br/
Subscribe "Digital Rights: Latin America & the Caribbean" - http://www.digitalrightslac.net/en 

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From wjdrake  Wed Jul 23 12:27:12 2014
From: wjdrake (William Drake)
Date: Wed, 23 Jul 2014 11:27:12 +0200
Subject: [PC-NCSG] Regarding 24 "Enhancing ICANN Accountability working
	group"
In-Reply-To: <DDD53BF5-C344-44F0-B8F1-E6F7864589E5@ipjustice.org>
References: <DDD53BF5-C344-44F0-B8F1-E6F7864589E5@ipjustice.org>
Message-ID: <C78E04D1-D2ED-4BA9-B05A-84A61A67A916@gmail.com>

Hi

This was discussed on the SOAC chairs call the other day.  There had been a discussion about the community trying to push this forward but this caused some confusion because a staff proposal based on public comments etc. is also pending, and Fadi was adamant that it?d be a mess if there were conflicting processes to constitute the same group and we should wait until staff speaketh.  People said ok and canceled a planning call. See attached transcript.  Note also the response to my question about the GNSO joint statement.

Best

Bill

On Jul 23, 2014, at 1:58 AM, Robin Gross <robin at ipjustice.org> wrote:

> 
> I have a request for our GNSO Councilors to raise an issue during this week's GNSO Council meeting during the IANA transition discussion item.
> 
> Regarding:  ICANN press release of 6 May 2014 announcing creation of ICANN Accountability working group:
> https://www.icann.org/news/announcement-2014-05-07-en
> Update: The discussions around enhancing ICANN Accountability are very important. Community feedback has noted the desire for a longer comment period for this proposed process. In response to ensuring the community has sufficient time, while also having the process in parallel to, and informing, the process to Transition NTIA's Stewardship of the IANA Functions, there is a one (1) week extension of the comment period to 6 June. Community members are urged to continue identifying members for the Working Group, with those selected by theICANN London meeting to hold a listening session with the community.
> 
> But nothing has moved forward on this accountability working group.  I know staff is not keen for the community to be discussing ICANN's accountability problems (certainly not before the IANA transition group is well ahead of the accountability group), so it will require some prodding from the community to make this accountability group move forward.  
> 
> Will our councilors please request a status update from staff on this issue and request that the accountability group be convened forthwith?
> 
> Thank you,
> Robin
> 
> 
> 
> 
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg

***********************************************
William J. Drake
International Fellow & Lecturer
  Media Change & Innovation Division, IPMZ
  University of Zurich, Switzerland
Chair, Noncommercial Users Constituency, 
  ICANN, www.ncuc.org
william.drake at uzh.ch (direct), wjdrake at gmail.com (lists),
  www.williamdrake.org
***********************************************
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From robin  Thu Jul 24 01:31:46 2014
From: robin (Robin Gross)
Date: Wed, 23 Jul 2014 15:31:46 -0700
Subject: [PC-NCSG] Regarding 24 "Enhancing ICANN Accountability working
	group"
In-Reply-To: <C78E04D1-D2ED-4BA9-B05A-84A61A67A916@gmail.com>
References: <DDD53BF5-C344-44F0-B8F1-E6F7864589E5@ipjustice.org>
	<C78E04D1-D2ED-4BA9-B05A-84A61A67A916@gmail.com>
Message-ID: <E9A0A93E-8B38-40E5-8C52-0DE5D0F3229A@ipjustice.org>

Thanks, Bill, this is helpful.   However I suspect that we'll still need to remain engaged with staff to move the accountability improvements process along.   

So please, councilors, encourage staff to move forward expeditiously with this working group, perhaps during the IANA transition discussion on the council's agenda.  Thank you!

Robin

On Jul 23, 2014, at 2:27 AM, William Drake wrote:

> Hi
> 
> This was discussed on the SOAC chairs call the other day.  There had been a discussion about the community trying to push this forward but this caused some confusion because a staff proposal based on public comments etc. is also pending, and Fadi was adamant that it?d be a mess if there were conflicting processes to constitute the same group and we should wait until staff speaketh.  People said ok and canceled a planning call. See attached transcript.  Note also the response to my question about the GNSO joint statement.
> 
> Best
> 
> Bill
> 
> On Jul 23, 2014, at 1:58 AM, Robin Gross <robin at ipjustice.org> wrote:
> 
>> 
>> I have a request for our GNSO Councilors to raise an issue during this week's GNSO Council meeting during the IANA transition discussion item.
>> 
>> Regarding:  ICANN press release of 6 May 2014 announcing creation of ICANN Accountability working group:
>> https://www.icann.org/news/announcement-2014-05-07-en
>> Update: The discussions around enhancing ICANN Accountability are very important. Community feedback has noted the desire for a longer comment period for this proposed process. In response to ensuring the community has sufficient time, while also having the process in parallel to, and informing, the process to Transition NTIA's Stewardship of the IANA Functions, there is a one (1) week extension of the comment period to 6 June. Community members are urged to continue identifying members for the Working Group, with those selected by theICANN London meeting to hold a listening session with the community.
>> 
>> But nothing has moved forward on this accountability working group.  I know staff is not keen for the community to be discussing ICANN's accountability problems (certainly not before the IANA transition group is well ahead of the accountability group), so it will require some prodding from the community to make this accountability group move forward.  
>> 
>> Will our councilors please request a status update from staff on this issue and request that the accountability group be convened forthwith?
>> 
>> Thank you,
>> Robin
>> 
>> 
>> 
>> 
>> 
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
> 
> ***********************************************
> William J. Drake
> International Fellow & Lecturer
>   Media Change & Innovation Division, IPMZ
>   University of Zurich, Switzerland
> Chair, Noncommercial Users Constituency, 
>   ICANN, www.ncuc.org
> william.drake at uzh.ch (direct), wjdrake at gmail.com (lists),
>   www.williamdrake.org
> ***********************************************
> <SOAC Transcript - 7-17-2014.pdf>

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From aelsadr  Thu Jul 24 02:24:31 2014
From: aelsadr (Amr Elsadr)
Date: Thu, 24 Jul 2014 01:24:31 +0200
Subject: [PC-NCSG] Regarding 24 "Enhancing ICANN Accountability working
	group"
In-Reply-To: <E9A0A93E-8B38-40E5-8C52-0DE5D0F3229A@ipjustice.org>
References: <DDD53BF5-C344-44F0-B8F1-E6F7864589E5@ipjustice.org>
	<C78E04D1-D2ED-4BA9-B05A-84A61A67A916@gmail.com>
	<E9A0A93E-8B38-40E5-8C52-0DE5D0F3229A@ipjustice.org>
Message-ID: <55F700C7-CA3D-4EA1-9BA4-3F8B02B9D4D9@egyptig.org>

Hi,

It wouldn?t hurt to ask for an update from staff on this during the meeting. Also, J. Berrard forwarded the transcripts of a speech by Strickling at the American Enterprise Institute, during which he said, "Also this spring, in response to community discussions at its Singapore meeting, ICANN announced a separate process to address ways to improve its overall accountability.  Specifically, this process will examine how ICANN can strengthen its accountability mechanisms to address the absence of its historical contractual relationship with NTIA.  This important accountability issue will and should be addressed before any transition takes place.?

Check http://www.ntia.doc.gov/speechtestimony/2014/keynote-address-assistant-secretary-strickling-american-enterprise-institute for the full transcripts.

If this is true, then the transition process will not really be completed until the accountability issues are settled first, which is reassuring.

I hope this helps.

Thanks.

Amr

On Jul 24, 2014, at 12:31 AM, Robin Gross <robin at ipjustice.org> wrote:

> Thanks, Bill, this is helpful.   However I suspect that we'll still need to remain engaged with staff to move the accountability improvements process along.   
> 
> So please, councilors, encourage staff to move forward expeditiously with this working group, perhaps during the IANA transition discussion on the council's agenda.  Thank you!
> 
> Robin
> 
> On Jul 23, 2014, at 2:27 AM, William Drake wrote:
> 
>> Hi
>> 
>> This was discussed on the SOAC chairs call the other day.  There had been a discussion about the community trying to push this forward but this caused some confusion because a staff proposal based on public comments etc. is also pending, and Fadi was adamant that it?d be a mess if there were conflicting processes to constitute the same group and we should wait until staff speaketh.  People said ok and canceled a planning call. See attached transcript.  Note also the response to my question about the GNSO joint statement.
>> 
>> Best
>> 
>> Bill
>> 
>> On Jul 23, 2014, at 1:58 AM, Robin Gross <robin at ipjustice.org> wrote:
>> 
>>> 
>>> I have a request for our GNSO Councilors to raise an issue during this week's GNSO Council meeting during the IANA transition discussion item.
>>> 
>>> Regarding:  ICANN press release of 6 May 2014 announcing creation of ICANN Accountability working group:
>>> https://www.icann.org/news/announcement-2014-05-07-en
>>> Update: The discussions around enhancing ICANN Accountability are very important. Community feedback has noted the desire for a longer comment period for this proposed process. In response to ensuring the community has sufficient time, while also having the process in parallel to, and informing, the process to Transition NTIA's Stewardship of the IANA Functions, there is a one (1) week extension of the comment period to 6 June. Community members are urged to continue identifying members for the Working Group, with those selected by theICANN London meeting to hold a listening session with the community.
>>> 
>>> But nothing has moved forward on this accountability working group.  I know staff is not keen for the community to be discussing ICANN's accountability problems (certainly not before the IANA transition group is well ahead of the accountability group), so it will require some prodding from the community to make this accountability group move forward.  
>>> 
>>> Will our councilors please request a status update from staff on this issue and request that the accountability group be convened forthwith?
>>> 
>>> Thank you,
>>> Robin
>>> 
>>> 
>>> 
>>> 
>>> 
>>> _______________________________________________
>>> PC-NCSG mailing list
>>> PC-NCSG at ipjustice.org
>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>> 
>> ***********************************************
>> William J. Drake
>> International Fellow & Lecturer
>>   Media Change & Innovation Division, IPMZ
>>   University of Zurich, Switzerland
>> Chair, Noncommercial Users Constituency, 
>>   ICANN, www.ncuc.org
>> william.drake at uzh.ch (direct), wjdrake at gmail.com (lists),
>>   www.williamdrake.org
>> ***********************************************
>> <SOAC Transcript - 7-17-2014.pdf>
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg

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From wjdrake  Thu Jul 24 09:29:26 2014
From: wjdrake (William Drake)
Date: Thu, 24 Jul 2014 08:29:26 +0200
Subject: [PC-NCSG] Regarding 24 "Enhancing ICANN Accountability working
	group"
In-Reply-To: <E9A0A93E-8B38-40E5-8C52-0DE5D0F3229A@ipjustice.org>
References: <DDD53BF5-C344-44F0-B8F1-E6F7864589E5@ipjustice.org>
	<C78E04D1-D2ED-4BA9-B05A-84A61A67A916@gmail.com>
	<E9A0A93E-8B38-40E5-8C52-0DE5D0F3229A@ipjustice.org>
Message-ID: <6BA1D9FB-B754-403F-9A16-D62B8B412145@gmail.com>

Hi

On Jul 24, 2014, at 12:31 AM, Robin Gross <robin at ipjustice.org> wrote:

> Thanks, Bill, this is helpful.   However I suspect that we'll still need to remain engaged with staff to move the accountability improvements process along.   

Oh, I agree, just wanted to provide background.

BD
> 
> So please, councilors, encourage staff to move forward expeditiously with this working group, perhaps during the IANA transition discussion on the council's agenda.  Thank you!
> 
> Robin
> 
> On Jul 23, 2014, at 2:27 AM, William Drake wrote:
> 
>> Hi
>> 
>> This was discussed on the SOAC chairs call the other day.  There had been a discussion about the community trying to push this forward but this caused some confusion because a staff proposal based on public comments etc. is also pending, and Fadi was adamant that it?d be a mess if there were conflicting processes to constitute the same group and we should wait until staff speaketh.  People said ok and canceled a planning call. See attached transcript.  Note also the response to my question about the GNSO joint statement.
>> 
>> Best
>> 
>> Bill
>> 
>> On Jul 23, 2014, at 1:58 AM, Robin Gross <robin at ipjustice.org> wrote:
>> 
>>> 
>>> I have a request for our GNSO Councilors to raise an issue during this week's GNSO Council meeting during the IANA transition discussion item.
>>> 
>>> Regarding:  ICANN press release of 6 May 2014 announcing creation of ICANN Accountability working group:
>>> https://www.icann.org/news/announcement-2014-05-07-en
>>> Update: The discussions around enhancing ICANN Accountability are very important. Community feedback has noted the desire for a longer comment period for this proposed process. In response to ensuring the community has sufficient time, while also having the process in parallel to, and informing, the process to Transition NTIA's Stewardship of the IANA Functions, there is a one (1) week extension of the comment period to 6 June. Community members are urged to continue identifying members for the Working Group, with those selected by theICANN London meeting to hold a listening session with the community.
>>> 
>>> But nothing has moved forward on this accountability working group.  I know staff is not keen for the community to be discussing ICANN's accountability problems (certainly not before the IANA transition group is well ahead of the accountability group), so it will require some prodding from the community to make this accountability group move forward.  
>>> 
>>> Will our councilors please request a status update from staff on this issue and request that the accountability group be convened forthwith?
>>> 
>>> Thank you,
>>> Robin
>>> 
>>> 
>>> 
>>> 
>>> 
>>> _______________________________________________
>>> PC-NCSG mailing list
>>> PC-NCSG at ipjustice.org
>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>> 
>> ***********************************************
>> William J. Drake
>> International Fellow & Lecturer
>>   Media Change & Innovation Division, IPMZ
>>   University of Zurich, Switzerland
>> Chair, Noncommercial Users Constituency, 
>>   ICANN, www.ncuc.org
>> william.drake at uzh.ch (direct), wjdrake at gmail.com (lists),
>>   www.williamdrake.org
>> ***********************************************
>> <SOAC Transcript - 7-17-2014.pdf>
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg

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From rafik.dammak  Wed Jul 30 12:36:35 2014
From: rafik.dammak (Rafik Dammak)
Date: Wed, 30 Jul 2014 18:36:35 +0900
Subject: [PC-NCSG] [urgent] Draft Comments for Whois Proceeding
Message-ID: <CAH5sThmh9SMgm4qYvDfg_K9rcR=mPT-dyjdvRFgkWDT3vz7pwA@mail.gmail.com>

Hi everyone,

Kathy sent a draft comment to the whois conflict with local laws. we have a
tight schedule and we should act quickly.
we are responding during the reply period which means the last chance for
us to do so.
@Maria can you please follow-up with this request?

Best,

Rafik



---------- Forwarded message ----------
From: Kathy Kleiman <kathy at kathykleiman.com>
Date: 2014-07-30 2:44 GMT+09:00
Subject: Draft Comments for Whois Proceeding
To: Rafik Dammak <rafik.dammak at gmail.com>, NCSG-DISCUSS at listserv.syr.edu


 To Rafik, NCSG Executive Committee and NCSG Membership,

There is an important, but very quiet comment proceeding that has been
taking place this summer. It is the *Review of the ICANN Procedure for
Handling WHOIS Conflicts with Privacy Law* at
*https://www.icann.org/public-comments/whois-conflicts-procedure-2014-05-22-en
<https://www.icann.org/public-comments/whois-conflicts-procedure-2014-05-22-en>*

Stephanie put out a call for comments, and not seeing any, I drafted
these.  It has been dismayeding ever since ICANN adopted its Consensus
Procedure for Handling WHOIS Conflicts with Privacy law -- because it
basically requires that Registrars and Registries have to be sued or
receive an official notice of violation before they can ask ICANN for a
waiver of the Whois requirements. That always seemed very unfair- that you
have to be exposed to allegation of illegal activity in order to protect
yourself or your Registrants under your national data protection and
privacy laws.

In the more recent Data Retention Specification, of the 2013 RAA, ICANN
Staff and Lawyers saw this problem and corrected it -- now Registrars can
be much more pro-active in showing ICANN that a certain clause in their
contract (e.g., extended data retention) is a clear violation of their
national law (e.g., more limited data retention).

So to this important comment proceeding, I drafted these comments for us to
submit. As Reply Comments (during the Reply Period), we are asked to
respond to other commenters. That's easy as the European Commission and
Registrar Blacknight submitted useful comments.

Rafik, can we edit, finalize and submit by the deadline on Friday?
Comments below and attached. If you have edits, in the interest of time,
kindly suggest alternate language. Tx!!

Best,
Kathy
--------------------------------------------------------------------------------------------------------

DRAFT 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
<https://www.icann.org/public-comments/whois-conflicts-procedure-2014-05-22-en>*

*Introduction*

The Noncommercial Stakeholders Group represents noncommercial organizations
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. ICANN Registries and Registrars are no different ? they want and
need to abide by their laws.

Thus, it is 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). 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, multiple 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 data protection and privacy laws.

At the time, we never expected this Consensus Procedure to be an end itself
? but the first step of many steps. It was an ?end? for too long, so we are
glad the discussion is reopened and once again we seek to allow Registrars
and Registries to be in full compliance with their national data protection
and privacy laws ? from the moment they enter into their contracts with
ICANN.

*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 *

*[Stephanie, Tamir or Others with Expertise in Canadian and European Data
Protection Laws may choose to add something here]. *

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.

    1.

      Is it impractical for ICANN to require that a contracted party
      already has litigation 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 that
national law. 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?

1.1 a Response: 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 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 2013 Registrar 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.


     1.3 Are 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.


     1.4 Should 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.


     2.1 Are 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.


     3.1 How 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.*

This is a critical policy item for such outreach and input.


     3.2 If 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.


     4.1 Would 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


     5.2 Is 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. *


     5.3 Should 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,

NCSG


 DRAFT
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From stephanie.perrin  Wed Jul 30 13:31:45 2014
From: stephanie.perrin (Stephanie Perrin)
Date: Wed, 30 Jul 2014 10:31:45 +0000
Subject: [PC-NCSG] [urgent] Draft Comments for Whois Proceeding
In-Reply-To: <CAH5sThmh9SMgm4qYvDfg_K9rcR=mPT-dyjdvRFgkWDT3vz7pwA@mail.gmail.com>
References: <CAH5sThmh9SMgm4qYvDfg_K9rcR=mPT-dyjdvRFgkWDT3vz7pwA@mail.gmail.com>
Message-ID: <1406716303849.77644@mail.utoronto.ca>

FIrstly, my humble apologies to all for dropping the ball and not getting a draft out prior to my departure to EUROSSIG.  Secondly, thanks to Kathy for jumping in and coming up with this draft, while I am here having fun in Meissen.  I feel terribly guilty.
Thirdly, here are my comments on that excellent first draft.  Briefly, I feel while we need to respond to the questionnaire, we need to question the fundamental approach.  Enough already, ICANN, recognize that privacy is a matter of consumer trust and it is high time we stopped this "work around it" approach to data confidentiality.
I am still working on a piece on the implications of the recent constitutional decisions on access to subscriber data. (ECJ, Canada, US).  There is again no mention of this in the questionnaire, and it is important and more extensive in its implications than data protection law.
One final point:  it is important to use "local law" instead of "national law".  I understand that national law can mean the entire body of law, but given the number of jurisdictions where the data protection law which governs internet business activity is likely to be provincial or even municipal, it is confusing to be using the term "national law", as certain parties might seize on the non-applicability of a national law and rush to conclude no data protection steps need be taken. in most cases I have made that edit.
thanks again Kathy!

cheers Stephanie Perrin

________________________________
From: PC-NCSG <pc-ncsg-bounces at ipjustice.org> on behalf of Rafik Dammak <rafik.dammak at gmail.com>
Sent: July 30, 2014 5:36 AM
To: NCSG-Policy; Kathy Kleiman
Subject: [PC-NCSG] [urgent] Draft Comments for Whois Proceeding

Hi everyone,

Kathy sent a draft comment to the whois conflict with local laws. we have a tight schedule and we should act quickly.
we are responding during the reply period which means the last chance for us to do so.
@Maria can you please follow-up with this request?

Best,

Rafik



---------- Forwarded message ----------
From: Kathy Kleiman <kathy at kathykleiman.com<mailto:kathy at kathykleiman.com>>
Date: 2014-07-30 2:44 GMT+09:00
Subject: Draft Comments for Whois Proceeding
To: Rafik Dammak <rafik.dammak at gmail.com<mailto:rafik.dammak at gmail.com>>, NCSG-DISCUSS at listserv.syr.edu<mailto:NCSG-DISCUSS at listserv.syr.edu>



To Rafik, NCSG Executive Committee and NCSG Membership,

There is an important, but very quiet comment proceeding that has been taking place this summer. It is the Review of the ICANN Procedure for Handling WHOIS Conflicts with Privacy Law at https://www.icann.org/public-comments/whois-conflicts-procedure-2014-05-22-en

Stephanie put out a call for comments, and not seeing any, I drafted these.  It has been dismayeding ever since ICANN adopted its Consensus Procedure for Handling WHOIS Conflicts with Privacy law -- because it basically requires that Registrars and Registries have to be sued or receive an official notice of violation before they can ask ICANN for a waiver of the Whois requirements. That always seemed very unfair- that you have to be exposed to allegation of illegal activity in order to protect yourself or your Registrants under your national data protection and privacy laws.

In the more recent Data Retention Specification, of the 2013 RAA, ICANN Staff and Lawyers saw this problem and corrected it -- now Registrars can be much more pro-active in showing ICANN that a certain clause in their contract (e.g., extended data retention) is a clear violation of their national law (e.g., more limited data retention).

So to this important comment proceeding, I drafted these comments for us to submit. As Reply Comments (during the Reply Period), we are asked to respond to other commenters. That's easy as the European Commission and Registrar Blacknight submitted useful comments.

Rafik, can we edit, finalize and submit by the deadline on Friday?  Comments below and attached. If you have edits, in the interest of time, kindly suggest alternate language. Tx!!

Best,
Kathy
--------------------------------------------------------------------------------------------------------

DRAFT 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

Introduction

The Noncommercial Stakeholders Group represents noncommercial organizations 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. ICANN Registries and Registrars are no different ? they want and need to abide by their laws.

Thus, it is 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). 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, multiple 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 data protection and privacy laws.

At the time, we never expected this Consensus Procedure to be an end itself ? but the first step of many steps. It was an ?end? for too long, so we are glad the discussion is reopened and once again we seek to allow Registrars and Registries to be in full compliance with their national data protection and privacy laws ? from the moment they enter into their contracts with ICANN.

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

[Stephanie, Tamir or Others with Expertise in Canadian and European Data Protection Laws may choose to add something here].

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.

     *   Is it impractical for ICANN to require that a contracted party already has litigation 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 that national law. 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?

1.1 a Response: 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 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 2013 Registrar 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.


    1.3 Are 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.


    1.4 Should 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.


    2.1 Are 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.


    3.1 How 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.

This is a critical policy item for such outreach and input.


    3.2 If 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.


    4.1 Would 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


    5.2 Is 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.


    5.3 Should 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,

NCSG


DRAFT


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From rafik.dammak  Wed Jul 30 13:36:45 2014
From: rafik.dammak (Rafik Dammak)
Date: Wed, 30 Jul 2014 19:36:45 +0900
Subject: [PC-NCSG] Reminder: Call for candidates: GNSO Liaison to the GAC
Message-ID: <CAH5sThmMqTka+qUSOzxJtT7bQ+eA0Qq1ZbZ=Oo939FngYioHPw@mail.gmail.com>

Hi,

sending a reminder , since we need to send a name by 31 July.

Best,

Rafik


2014-07-23 9:39 GMT+09:00 avri <avri at acm.org>:

> Hi.
>
> I don't understand why the review is going to avoid this. If enough people
> mention that it is a problem on the questionnaire, it can be dealt with, I
> think.
>
> As for the board seat, it had to be someone both ncsg and csg can agree on.
>
>
> avri
>
> Sent from a T-Mobile 4G LTE Device
>
>
> -------- Original message --------
> From: Marilia Maciel
> Date:07/22/2014 7:45 PM (GMT-05:00)
> To: Robin Gross
> Cc: NCSG-Policy NCSG-Policy
> Subject: Re: [PC-NCSG] Fwd: [council] Reminder: Call for candidates: GNSO
> Liaison to the GAC
>
> Hi all, I agree with supporting Markus and I subscribe to all of the
> compliments made by Robin, about skills, openness and personality.
>
> However, I just would like to take the opportunity to stress one thing,
> which should not at all be read as a personal comment related to Markus.
> Only a process that is seriously malfunctioning would make someone that
> comes from the governmental sector and is leaving the technical community
> (we know the problems of revolving doors) the only option that seems viable
> to non-commercial interests and civil society. It is a pitty we could not
> manage to see Avri or Sam there. And it is also a pitty that the GNSO
> review will conveniently avoid such problems.
>
> Best
> Mar?lia
>
>
> On Tue, Jul 22, 2014 at 2:54 PM, Robin Gross <robin at ipjustice.org> wrote:
>
>> (From the peanut gallery) I agree 100%.  Markus has always had an open
>> door to civil society - I know from personal experience ever since the IGF
>> MAG was first created (almost a decade ago) and he ran its administration.
>>  As I was a member of the IGF MAG for civil society at the time, working
>> with Markus was a delightful change in that he really did take civil
>> society into account, something we don't typically get from such "high
>> level" actors in global governance systems.  And it has been that way with
>> him ever since.  We would be very well positioned to have Markus as our
>> board representative.  Let's make it happen.
>>
>> Robin
>>
>> On Jul 22, 2014, at 10:23 AM, Avri Doria wrote:
>>
>> >
>> >
>> > On 22-Jul-14 13:14, Maria Farrell wrote:
>> >>
>> >> 1 Markus Kummer joined our NCSG monthly policy call today to talk about
>> >> his candidacy for Board Seat 14. Let's discuss whether we want to
>> >> support him.
>> >
>> >
>> > I believe we should support him and should say so as soon as possible.
>> >
>> > avri
>> >
>> > _______________________________________________
>> > PC-NCSG mailing list
>> > PC-NCSG at ipjustice.org
>> > http://mailman.ipjustice.org/listinfo/pc-ncsg
>> >
>>
>>
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>
>>
>
>
> --
> *Mar?lia Maciel*
> Pesquisadora Gestora - Centro de Tecnologia e Sociedade - FGV Direito Rio
> Researcher and Coordinator - Center for Technology & Society - FGV Law
> School
> http://direitorio.fgv.br/cts
>
> DiploFoundation associate - www.diplomacy.edu
> PoliTICs Magazine Advisory Committee - http://www.politics.org.br/
> Subscribe "Digital Rights: Latin America & the Caribbean" -
> http://www.digitalrightslac.net/en
>
>
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
>
>
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From avri  Wed Jul 30 15:28:00 2014
From: avri (Avri Doria)
Date: Wed, 30 Jul 2014 14:28:00 +0200
Subject: [PC-NCSG] [urgent] Draft Comments for Whois Proceeding
In-Reply-To: <CAH5sThmh9SMgm4qYvDfg_K9rcR=mPT-dyjdvRFgkWDT3vz7pwA@mail.gmail.com>
References: <CAH5sThmh9SMgm4qYvDfg_K9rcR=mPT-dyjdvRFgkWDT3vz7pwA@mail.gmail.com>
Message-ID: <53D8E4D0.8080805@acm.org>

Hi,

Started reviewing them, actually Stephanie's comments.  They are written
from an NCUC perspective and need to be approved by them, not us.

avri


On 30-Jul-14 11:36, Rafik Dammak wrote:
> Hi everyone,
> 
> Kathy sent a draft comment to the whois conflict with local laws. we
> have a tight schedule and we should act quickly. 
> we are responding during the reply period which means the last chance
> for us to do so.
> @Maria can you please follow-up with this request?
> 
> Best,
> 
> Rafik
> 
> 
> 
> ---------- Forwarded message ----------
> From: *Kathy Kleiman* <kathy at kathykleiman.com
> <mailto:kathy at kathykleiman.com>>
> Date: 2014-07-30 2:44 GMT+09:00
> Subject: Draft Comments for Whois Proceeding
> To: Rafik Dammak <rafik.dammak at gmail.com
> <mailto:rafik.dammak at gmail.com>>, NCSG-DISCUSS at listserv.syr.edu
> <mailto:NCSG-DISCUSS at listserv.syr.edu>
> 
> 
> To Rafik, NCSG Executive Committee and NCSG Membership,
> 
> There is an important, but very quiet comment proceeding that has been
> taking place this summer. It is the /Review of the ICANN Procedure for
> Handling WHOIS Conflicts with Privacy Law///at
> /https://www.icann.org/public-comments/whois-conflicts-procedure-2014-05-22-en/
> 
> 
> Stephanie put out a call for comments, and not seeing any, I drafted
> these.  It has been dismayeding ever since ICANN adopted its Consensus
> Procedure for Handling WHOIS Conflicts with Privacy law -- because it
> basically requires that Registrars and Registries have to be sued or
> receive an official notice of violation before they can ask ICANN for a
> waiver of the Whois requirements. That always seemed very unfair- that
> you have to be exposed to allegation of illegal activity in order to
> protect yourself or your Registrants under your national data protection
> and privacy laws.
> 
> In the more recent Data Retention Specification, of the 2013 RAA, ICANN
> Staff and Lawyers saw this problem and corrected it -- now Registrars
> can be much more pro-active in showing ICANN that a certain clause in
> their contract (e.g., extended data retention) is a clear violation of
> their national law (e.g., more limited data retention).
> 
> So to this important comment proceeding, I drafted these comments for us
> to submit. As Reply Comments (during the Reply Period), we are asked to
> respond to other commenters. That's easy as the European Commission and
> Registrar Blacknight submitted useful comments.
> 
> Rafik, can we edit, finalize and submit by the deadline on Friday? 
> Comments below and attached. If you have edits, in the interest of time,
> kindly suggest alternate language. Tx!!
> 
> Best,
> Kathy
> --------------------------------------------------------------------------------------------------------
> 
> DRAFT 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/
> 
> 
> *Introduction*
> 
> The Noncommercial Stakeholders Group represents noncommercial
> organizations 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. ICANN Registries and Registrars are no
> different ? they want and need to abide by their laws.
> 
> Thus, it is 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).
> 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, multiple 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 data protection and privacy laws.
> 
> At the time, we never expected this Consensus Procedure to be an end
> itself ? but the first step of many steps. It was an ?end? for too long,
> so we are glad the discussion is reopened and once again we seek to
> allow Registrars and Registries to be in full compliance with their
> national data protection and privacy laws ? from the moment they enter
> into their contracts with ICANN.
> 
> *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 *
> 
> **
> 
> /*[Stephanie, Tamir or Others with Expertise in Canadian and European
> Data Protection Laws may choose to add something here]. */
> 
> 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.
> 
>      1.
> 
>         Is it impractical for ICANN to require that a contracted party
>         already has litigation 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 that national law. 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:
> 
>       o
> 
>         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:
> 
>       o
> 
>         ?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?
> 
> 1.1 a Response: 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:
> 
>       o
> 
>         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;
> 
>       o
> 
>         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);
> 
> 
>       o
> 
>         Receipt of a written legal opinion from a nationally recognized
>         law firm 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
> 
> 
>       o
> 
>         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 2013 Registrar 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.
> 
> 
>     1.3 Are 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.
> 
> 
>     1.4 Should 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.
> 
> 
>     2.1 Are 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.
> 
> 
>     3.1 How 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.*
> 
> This is a critical policy item for such outreach and input.
> 
> 
>     3.2 If 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.
> 
> 
>     4.1 Would 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
> 
> 
>     5.2 Is 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. /
> 
> 
>     5.3 Should 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,
> 
> NCSG
> 
> 
> DRAFT
> 
> 
> 
> 
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
> 



From avri  Wed Jul 30 15:57:23 2014
From: avri (Avri Doria)
Date: Wed, 30 Jul 2014 14:57:23 +0200
Subject: [PC-NCSG] [urgent] Draft Comments for Whois Proceeding
In-Reply-To: <53D8E4D0.8080805@acm.org>
References: <CAH5sThmh9SMgm4qYvDfg_K9rcR=mPT-dyjdvRFgkWDT3vz7pwA@mail.gmail.com>
	<53D8E4D0.8080805@acm.org>
Message-ID: <53D8EBB3.7060404@acm.org>

hi,

Reviewed the document.

Made a change so it could be a NCSG document.

There are parts I am uncomfortable with, some of which I deleted and
some of which I left and still am uncomfortable with.

I do not think we should ever dismiss the Multistakeholder model.  I do
not wish to find ourselves in the situation of being quoted for having
suggested that there are times when the model should be superseded. That
would be a gold mine for some.  I deleted those references.

I am also uncomfortable with saying there are things that don't need
public comment on.  To just have to take the legal staff view on things
is dangerous.  What if they say the law does not require something when
someone knows better.  Better to have a null review.  I have not,
however, removed these as they were an entire section.    I would like
to see that section reworded or removed before approving the documents.

I also removed a bunch of weasel words like 'respectfully'

avri






On 30-Jul-14 14:28, Avri Doria wrote:
> Hi,
> 
> Started reviewing them, actually Stephanie's comments.  They are written
> from an NCUC perspective and need to be approved by them, not us.
> 
> avri
> 
> 
> On 30-Jul-14 11:36, Rafik Dammak wrote:
>> Hi everyone,
>>
>> Kathy sent a draft comment to the whois conflict with local laws. we
>> have a tight schedule and we should act quickly. 
>> we are responding during the reply period which means the last chance
>> for us to do so.
>> @Maria can you please follow-up with this request?
>>
>> Best,
>>
>> Rafik
>>
>>
>>
>> ---------- Forwarded message ----------
>> From: *Kathy Kleiman* <kathy at kathykleiman.com
>> <mailto:kathy at kathykleiman.com>>
>> Date: 2014-07-30 2:44 GMT+09:00
>> Subject: Draft Comments for Whois Proceeding
>> To: Rafik Dammak <rafik.dammak at gmail.com
>> <mailto:rafik.dammak at gmail.com>>, NCSG-DISCUSS at listserv.syr.edu
>> <mailto:NCSG-DISCUSS at listserv.syr.edu>
>>
>>
>> To Rafik, NCSG Executive Committee and NCSG Membership,
>>
>> There is an important, but very quiet comment proceeding that has been
>> taking place this summer. It is the /Review of the ICANN Procedure for
>> Handling WHOIS Conflicts with Privacy Law///at
>> /https://www.icann.org/public-comments/whois-conflicts-procedure-2014-05-22-en/
>>
>>
>> Stephanie put out a call for comments, and not seeing any, I drafted
>> these.  It has been dismayeding ever since ICANN adopted its Consensus
>> Procedure for Handling WHOIS Conflicts with Privacy law -- because it
>> basically requires that Registrars and Registries have to be sued or
>> receive an official notice of violation before they can ask ICANN for a
>> waiver of the Whois requirements. That always seemed very unfair- that
>> you have to be exposed to allegation of illegal activity in order to
>> protect yourself or your Registrants under your national data protection
>> and privacy laws.
>>
>> In the more recent Data Retention Specification, of the 2013 RAA, ICANN
>> Staff and Lawyers saw this problem and corrected it -- now Registrars
>> can be much more pro-active in showing ICANN that a certain clause in
>> their contract (e.g., extended data retention) is a clear violation of
>> their national law (e.g., more limited data retention).
>>
>> So to this important comment proceeding, I drafted these comments for us
>> to submit. As Reply Comments (during the Reply Period), we are asked to
>> respond to other commenters. That's easy as the European Commission and
>> Registrar Blacknight submitted useful comments.
>>
>> Rafik, can we edit, finalize and submit by the deadline on Friday? 
>> Comments below and attached. If you have edits, in the interest of time,
>> kindly suggest alternate language. Tx!!
>>
>> Best,
>> Kathy
>> --------------------------------------------------------------------------------------------------------
>>
>> DRAFT 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/
>>
>>
>> *Introduction*
>>
>> The Noncommercial Stakeholders Group represents noncommercial
>> organizations 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. ICANN Registries and Registrars are no
>> different ? they want and need to abide by their laws.
>>
>> Thus, it is 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).
>> 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, multiple 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 data protection and privacy laws.
>>
>> At the time, we never expected this Consensus Procedure to be an end
>> itself ? but the first step of many steps. It was an ?end? for too long,
>> so we are glad the discussion is reopened and once again we seek to
>> allow Registrars and Registries to be in full compliance with their
>> national data protection and privacy laws ? from the moment they enter
>> into their contracts with ICANN.
>>
>> *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 *
>>
>> **
>>
>> /*[Stephanie, Tamir or Others with Expertise in Canadian and European
>> Data Protection Laws may choose to add something here]. */
>>
>> 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.
>>
>>      1.
>>
>>         Is it impractical for ICANN to require that a contracted party
>>         already has litigation 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 that national law. 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:
>>
>>       o
>>
>>         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:
>>
>>       o
>>
>>         ?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?
>>
>> 1.1 a Response: 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:
>>
>>       o
>>
>>         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;
>>
>>       o
>>
>>         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);
>>
>>
>>       o
>>
>>         Receipt of a written legal opinion from a nationally recognized
>>         law firm 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
>>
>>
>>       o
>>
>>         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 2013 Registrar 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.
>>
>>
>>     1.3 Are 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.
>>
>>
>>     1.4 Should 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.
>>
>>
>>     2.1 Are 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.
>>
>>
>>     3.1 How 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.*
>>
>> This is a critical policy item for such outreach and input.
>>
>>
>>     3.2 If 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.
>>
>>
>>     4.1 Would 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
>>
>>
>>     5.2 Is 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. /
>>
>>
>>     5.3 Should 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,
>>
>> NCSG
>>
>>
>> DRAFT
>>
>>
>>
>>
>>
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
> 
> 
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From aelsadr  Thu Jul 31 16:22:16 2014
From: aelsadr (Amr Elsadr)
Date: Thu, 31 Jul 2014 15:22:16 +0200
Subject: [PC-NCSG] [urgent] Draft Comments for Whois Proceeding
In-Reply-To: <53D8EBB3.7060404@acm.org>
References: <CAH5sThmh9SMgm4qYvDfg_K9rcR=mPT-dyjdvRFgkWDT3vz7pwA@mail.gmail.com>
	<53D8E4D0.8080805@acm.org> <53D8EBB3.7060404@acm.org>
Message-ID: <5762B7A6-B931-4E7A-AD19-7B2D92944023@egyptig.org>

Hi all,

On Jul 30, 2014, at 2:57 PM, Avri Doria <avri at ACM.ORG> wrote:

> hi,
> 
> Reviewed the document.
> 
> Made a change so it could be a NCSG document.

Thanks.

> There are parts I am uncomfortable with, some of which I deleted and
> some of which I left and still am uncomfortable with.
> 
> I do not think we should ever dismiss the Multistakeholder model.  I do
> not wish to find ourselves in the situation of being quoted for having
> suggested that there are times when the model should be superseded. That
> would be a gold mine for some.  I deleted those references.

Fully agree. Although I don?t feel that was the intent, it could certainly be perceived that way. No need to bring it up.

> I am also uncomfortable with saying there are things that don't need
> public comment on.  To just have to take the legal staff view on things
> is dangerous.  What if they say the law does not require something when
> someone knows better.  Better to have a null review.  I have not,
> however, removed these as they were an entire section.    I would like
> to see that section reworded or removed before approving the documents.

IMHO, I don?t see the need for a public comment period on every time this policy might be used. If a new set of policies and processes are adopted for handling WHOIS conflicts with privacy laws, then they should be clear enough during implementation to not require public comment, right? Isn?t this the case with all policies? For instance, is there a public comment period every time a new registrar signs a contract with ICANN? Or will there be a public comment period when implementation of the ?thick? WHOIS policy kicks in?

Another thought is that a public comment period will also lengthen the period during which a registrar will potentially be at risk for non-compliance with local laws. Unless there is an important reason why there should be a public comment for each of the resolution scenarios, then I suggest we support Kathy?s recommendation to not have any.

Thanks.

Amr

> 
> I also removed a bunch of weasel words like 'respectfully'
> 
> avri
> 
> 
> 
> 
> 
> 
> On 30-Jul-14 14:28, Avri Doria wrote:
>> Hi,
>> 
>> Started reviewing them, actually Stephanie's comments.  They are written
>> from an NCUC perspective and need to be approved by them, not us.
>> 
>> avri
>> 
>> 
>> On 30-Jul-14 11:36, Rafik Dammak wrote:
>>> Hi everyone,
>>> 
>>> Kathy sent a draft comment to the whois conflict with local laws. we
>>> have a tight schedule and we should act quickly. 
>>> we are responding during the reply period which means the last chance
>>> for us to do so.
>>> @Maria can you please follow-up with this request?
>>> 
>>> Best,
>>> 
>>> Rafik
>>> 
>>> 
>>> 
>>> ---------- Forwarded message ----------
>>> From: *Kathy Kleiman* <kathy at kathykleiman.com
>>> <mailto:kathy at kathykleiman.com>>
>>> Date: 2014-07-30 2:44 GMT+09:00
>>> Subject: Draft Comments for Whois Proceeding
>>> To: Rafik Dammak <rafik.dammak at gmail.com
>>> <mailto:rafik.dammak at gmail.com>>, NCSG-DISCUSS at listserv.syr.edu
>>> <mailto:NCSG-DISCUSS at listserv.syr.edu>
>>> 
>>> 
>>> To Rafik, NCSG Executive Committee and NCSG Membership,
>>> 
>>> There is an important, but very quiet comment proceeding that has been
>>> taking place this summer. It is the /Review of the ICANN Procedure for
>>> Handling WHOIS Conflicts with Privacy Law///at
>>> /https://www.icann.org/public-comments/whois-conflicts-procedure-2014-05-22-en/
>>> 
>>> 
>>> Stephanie put out a call for comments, and not seeing any, I drafted
>>> these.  It has been dismayeding ever since ICANN adopted its Consensus
>>> Procedure for Handling WHOIS Conflicts with Privacy law -- because it
>>> basically requires that Registrars and Registries have to be sued or
>>> receive an official notice of violation before they can ask ICANN for a
>>> waiver of the Whois requirements. That always seemed very unfair- that
>>> you have to be exposed to allegation of illegal activity in order to
>>> protect yourself or your Registrants under your national data protection
>>> and privacy laws.
>>> 
>>> In the more recent Data Retention Specification, of the 2013 RAA, ICANN
>>> Staff and Lawyers saw this problem and corrected it -- now Registrars
>>> can be much more pro-active in showing ICANN that a certain clause in
>>> their contract (e.g., extended data retention) is a clear violation of
>>> their national law (e.g., more limited data retention).
>>> 
>>> So to this important comment proceeding, I drafted these comments for us
>>> to submit. As Reply Comments (during the Reply Period), we are asked to
>>> respond to other commenters. That's easy as the European Commission and
>>> Registrar Blacknight submitted useful comments.
>>> 
>>> Rafik, can we edit, finalize and submit by the deadline on Friday? 
>>> Comments below and attached. If you have edits, in the interest of time,
>>> kindly suggest alternate language. Tx!!
>>> 
>>> Best,
>>> Kathy
>>> --------------------------------------------------------------------------------------------------------
>>> 
>>> DRAFT 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/
>>> 
>>> 
>>> *Introduction*
>>> 
>>> The Noncommercial Stakeholders Group represents noncommercial
>>> organizations 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. ICANN Registries and Registrars are no
>>> different ? they want and need to abide by their laws.
>>> 
>>> Thus, it is 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).
>>> 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, multiple 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 data protection and privacy laws.
>>> 
>>> At the time, we never expected this Consensus Procedure to be an end
>>> itself ? but the first step of many steps. It was an ?end? for too long,
>>> so we are glad the discussion is reopened and once again we seek to
>>> allow Registrars and Registries to be in full compliance with their
>>> national data protection and privacy laws ? from the moment they enter
>>> into their contracts with ICANN.
>>> 
>>> *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 *
>>> 
>>> **
>>> 
>>> /*[Stephanie, Tamir or Others with Expertise in Canadian and European
>>> Data Protection Laws may choose to add something here]. */
>>> 
>>> 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.
>>> 
>>>    1.
>>> 
>>>       Is it impractical for ICANN to require that a contracted party
>>>       already has litigation 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 that national law. 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:
>>> 
>>>     o
>>> 
>>>       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:
>>> 
>>>     o
>>> 
>>>       ?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?
>>> 
>>> 1.1 a Response: 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:
>>> 
>>>     o
>>> 
>>>       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;
>>> 
>>>     o
>>> 
>>>       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);
>>> 
>>> 
>>>     o
>>> 
>>>       Receipt of a written legal opinion from a nationally recognized
>>>       law firm 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
>>> 
>>> 
>>>     o
>>> 
>>>       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 2013 Registrar 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.
>>> 
>>> 
>>>   1.3 Are 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.
>>> 
>>> 
>>>   1.4 Should 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.
>>> 
>>> 
>>>   2.1 Are 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.
>>> 
>>> 
>>>   3.1 How 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.*
>>> 
>>> This is a critical policy item for such outreach and input.
>>> 
>>> 
>>>   3.2 If 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.
>>> 
>>> 
>>>   4.1 Would 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
>>> 
>>> 
>>>   5.2 Is 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. /
>>> 
>>> 
>>>   5.3 Should 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,
>>> 
>>> NCSG
>>> 
>>> 
>>> DRAFT
>>> 
>>> 
>>> 
>>> 
>>> 
>>> _______________________________________________
>>> PC-NCSG mailing list
>>> PC-NCSG at ipjustice.org
>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>> 
>> 
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>> 
>> 
> <NSCG DRAFT Comments for Review of WHOIS Consensus Proceduresp+ad.doc>_______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg




From stephanie.perrin  Thu Jul 31 16:29:43 2014
From: stephanie.perrin (Stephanie Perrin)
Date: Thu, 31 Jul 2014 09:29:43 -0400
Subject: [PC-NCSG] [urgent] Draft Comments for Whois Proceeding
In-Reply-To: <5762B7A6-B931-4E7A-AD19-7B2D92944023@egyptig.org>
References: <CAH5sThmh9SMgm4qYvDfg_K9rcR=mPT-dyjdvRFgkWDT3vz7pwA@mail.gmail.com>	<53D8E4D0.8080805@acm.org>
	<53D8EBB3.7060404@acm.org>
	<5762B7A6-B931-4E7A-AD19-7B2D92944023@egyptig.org>
Message-ID: <53DA44C7.7090700@mail.utoronto.ca>

I also agreed with Avri and inserted a few of her changes, Kathy did not 
get those edits....we need to make sure we have a final copy that Rafik 
can sign, which reflects all the agreed changes.  Do you want me to have 
another edit one last time, to make sure that Joy's comments (which were 
on an earlier draft) and Avri's are all in there?
cheers stephanie
On 2014-07-31, 9:22, Amr Elsadr wrote:
> Hi all,
>
> On Jul 30, 2014, at 2:57 PM, Avri Doria <avri at ACM.ORG> wrote:
>
>> hi,
>>
>> Reviewed the document.
>>
>> Made a change so it could be a NCSG document.
> Thanks.
>
>> There are parts I am uncomfortable with, some of which I deleted and
>> some of which I left and still am uncomfortable with.
>>
>> I do not think we should ever dismiss the Multistakeholder model.  I do
>> not wish to find ourselves in the situation of being quoted for having
>> suggested that there are times when the model should be superseded. That
>> would be a gold mine for some.  I deleted those references.
> Fully agree. Although I don?t feel that was the intent, it could certainly be perceived that way. No need to bring it up.
>
>> I am also uncomfortable with saying there are things that don't need
>> public comment on.  To just have to take the legal staff view on things
>> is dangerous.  What if they say the law does not require something when
>> someone knows better.  Better to have a null review.  I have not,
>> however, removed these as they were an entire section.    I would like
>> to see that section reworded or removed before approving the documents.
> IMHO, I don?t see the need for a public comment period on every time this policy might be used. If a new set of policies and processes are adopted for handling WHOIS conflicts with privacy laws, then they should be clear enough during implementation to not require public comment, right? Isn?t this the case with all policies? For instance, is there a public comment period every time a new registrar signs a contract with ICANN? Or will there be a public comment period when implementation of the ?thick? WHOIS policy kicks in?
>
> Another thought is that a public comment period will also lengthen the period during which a registrar will potentially be at risk for non-compliance with local laws. Unless there is an important reason why there should be a public comment for each of the resolution scenarios, then I suggest we support Kathy?s recommendation to not have any.
>
> Thanks.
>
> Amr
>
>> I also removed a bunch of weasel words like 'respectfully'
>>
>> avri
>>
>>
>>
>>
>>
>>
>> On 30-Jul-14 14:28, Avri Doria wrote:
>>> Hi,
>>>
>>> Started reviewing them, actually Stephanie's comments.  They are written
>>> from an NCUC perspective and need to be approved by them, not us.
>>>
>>> avri
>>>
>>>
>>> On 30-Jul-14 11:36, Rafik Dammak wrote:
>>>> Hi everyone,
>>>>
>>>> Kathy sent a draft comment to the whois conflict with local laws. we
>>>> have a tight schedule and we should act quickly.
>>>> we are responding during the reply period which means the last chance
>>>> for us to do so.
>>>> @Maria can you please follow-up with this request?
>>>>
>>>> Best,
>>>>
>>>> Rafik
>>>>
>>>>
>>>>
>>>> ---------- Forwarded message ----------
>>>> From: *Kathy Kleiman* <kathy at kathykleiman.com
>>>> <mailto:kathy at kathykleiman.com>>
>>>> Date: 2014-07-30 2:44 GMT+09:00
>>>> Subject: Draft Comments for Whois Proceeding
>>>> To: Rafik Dammak <rafik.dammak at gmail.com
>>>> <mailto:rafik.dammak at gmail.com>>, NCSG-DISCUSS at listserv.syr.edu
>>>> <mailto:NCSG-DISCUSS at listserv.syr.edu>
>>>>
>>>>
>>>> To Rafik, NCSG Executive Committee and NCSG Membership,
>>>>
>>>> There is an important, but very quiet comment proceeding that has been
>>>> taking place this summer. It is the /Review of the ICANN Procedure for
>>>> Handling WHOIS Conflicts with Privacy Law///at
>>>> /https://www.icann.org/public-comments/whois-conflicts-procedure-2014-05-22-en/
>>>>
>>>>
>>>> Stephanie put out a call for comments, and not seeing any, I drafted
>>>> these.  It has been dismayeding ever since ICANN adopted its Consensus
>>>> Procedure for Handling WHOIS Conflicts with Privacy law -- because it
>>>> basically requires that Registrars and Registries have to be sued or
>>>> receive an official notice of violation before they can ask ICANN for a
>>>> waiver of the Whois requirements. That always seemed very unfair- that
>>>> you have to be exposed to allegation of illegal activity in order to
>>>> protect yourself or your Registrants under your national data protection
>>>> and privacy laws.
>>>>
>>>> In the more recent Data Retention Specification, of the 2013 RAA, ICANN
>>>> Staff and Lawyers saw this problem and corrected it -- now Registrars
>>>> can be much more pro-active in showing ICANN that a certain clause in
>>>> their contract (e.g., extended data retention) is a clear violation of
>>>> their national law (e.g., more limited data retention).
>>>>
>>>> So to this important comment proceeding, I drafted these comments for us
>>>> to submit. As Reply Comments (during the Reply Period), we are asked to
>>>> respond to other commenters. That's easy as the European Commission and
>>>> Registrar Blacknight submitted useful comments.
>>>>
>>>> Rafik, can we edit, finalize and submit by the deadline on Friday?
>>>> Comments below and attached. If you have edits, in the interest of time,
>>>> kindly suggest alternate language. Tx!!
>>>>
>>>> Best,
>>>> Kathy
>>>> --------------------------------------------------------------------------------------------------------
>>>>
>>>> DRAFT 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/
>>>>
>>>>
>>>> *Introduction*
>>>>
>>>> The Noncommercial Stakeholders Group represents noncommercial
>>>> organizations 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. ICANN Registries and Registrars are no
>>>> different ? they want and need to abide by their laws.
>>>>
>>>> Thus, it is 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).
>>>> 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, multiple 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 data protection and privacy laws.
>>>>
>>>> At the time, we never expected this Consensus Procedure to be an end
>>>> itself ? but the first step of many steps. It was an ?end? for too long,
>>>> so we are glad the discussion is reopened and once again we seek to
>>>> allow Registrars and Registries to be in full compliance with their
>>>> national data protection and privacy laws ? from the moment they enter
>>>> into their contracts with ICANN.
>>>>
>>>> *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 *
>>>>
>>>> **
>>>>
>>>> /*[Stephanie, Tamir or Others with Expertise in Canadian and European
>>>> Data Protection Laws may choose to add something here]. */
>>>>
>>>> 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.
>>>>
>>>>     1.
>>>>
>>>>        Is it impractical for ICANN to require that a contracted party
>>>>        already has litigation 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 that national law. 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:
>>>>
>>>>      o
>>>>
>>>>        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:
>>>>
>>>>      o
>>>>
>>>>        ?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?
>>>>
>>>> 1.1 a Response: 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:
>>>>
>>>>      o
>>>>
>>>>        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;
>>>>
>>>>      o
>>>>
>>>>        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);
>>>>
>>>>
>>>>      o
>>>>
>>>>        Receipt of a written legal opinion from a nationally recognized
>>>>        law firm 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
>>>>
>>>>
>>>>      o
>>>>
>>>>        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 2013 Registrar 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.
>>>>
>>>>
>>>>    1.3 Are 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.
>>>>
>>>>
>>>>    1.4 Should 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.
>>>>
>>>>
>>>>    2.1 Are 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.
>>>>
>>>>
>>>>    3.1 How 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.*
>>>>
>>>> This is a critical policy item for such outreach and input.
>>>>
>>>>
>>>>    3.2 If 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.
>>>>
>>>>
>>>>    4.1 Would 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
>>>>
>>>>
>>>>    5.2 Is 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. /
>>>>
>>>>
>>>>    5.3 Should 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,
>>>>
>>>> NCSG
>>>>
>>>>
>>>> DRAFT
>>>>
>>>>
>>>>
>>>>
>>>>
>>>> _______________________________________________
>>>> PC-NCSG mailing list
>>>> PC-NCSG at ipjustice.org
>>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>>
>>> _______________________________________________
>>> PC-NCSG mailing list
>>> PC-NCSG at ipjustice.org
>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>
>>>
>> <NSCG DRAFT Comments for Review of WHOIS Consensus Proceduresp+ad.doc>_______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg




From rafik.dammak  Thu Jul 31 18:53:59 2014
From: rafik.dammak (Rafik Dammak)
Date: Fri, 1 Aug 2014 00:53:59 +0900
Subject: [PC-NCSG] [NCSG-Discuss] [urgent] Draft Comments for Whois
	Proceeding
In-Reply-To: <53DA5C0F.9050401@kathykleiman.com>
References: <CAH5sThmh9SMgm4qYvDfg_K9rcR=mPT-dyjdvRFgkWDT3vz7pwA@mail.gmail.com>
	<53D8E4D0.8080805@acm.org> <53D8EBB3.7060404@acm.org>
	<5762B7A6-B931-4E7A-AD19-7B2D92944023@egyptig.org>
	<53DA44C7.7090700@mail.utoronto.ca> <53DA5C0F.9050401@kathykleiman.com>
Message-ID: <CAH5sTh=k-SvUMPfznLyAAkyD+K=QhCRFu5SYSBJnNMUcSjHPdQ@mail.gmail.com>

Hi Kathy,

thank you for the changes, we should hear from other member of PC, Maria
can make the last call and declare consensus.
the deadline for sending the comment is 1 Aug 2014 23:59 UTC, so we need to
get endorsement before that.

Best,
Rafik


2014-08-01 0:09 GMT+09:00 Kathy Kleiman <kathy at kathykleiman.com>:

>  Hi Stephanie,
> Tx for adding Avri's comments. I've reviewed all of the changes, and also
> added one more to this most recent version. *Newest version (NCSGEdits3)
> attached. *
> **Due tomorrow**
> Best,
> Kathy
> :
>
> I also agreed with Avri and inserted a few of her changes, Kathy did not
> get those edits....we need to make sure we have a final copy that Rafik can
> sign, which reflects all the agreed changes.  Do you want me to have
> another edit one last time, to make sure that Joy's comments (which were on
> an earlier draft) and Avri's are all in there?
> cheers stephanie
> On 2014-07-31, 9:22, Amr Elsadr wrote:
>
> Hi all,
>
> On Jul 30, 2014, at 2:57 PM, Avri Doria <avri at ACM.ORG> <avri at ACM.ORG>
> wrote:
>
> hi,
>
> Reviewed the document.
>
> Made a change so it could be a NCSG document.
>
> Thanks.
>
> There are parts I am uncomfortable with, some of which I deleted and
> some of which I left and still am uncomfortable with.
>
> I do not think we should ever dismiss the Multistakeholder model.  I do
> not wish to find ourselves in the situation of being quoted for having
> suggested that there are times when the model should be superseded. That
> would be a gold mine for some.  I deleted those references.
>
> Fully agree. Although I don?t feel that was the intent, it could certainly
> be perceived that way. No need to bring it up.
>
> I am also uncomfortable with saying there are things that don't need
> public comment on.  To just have to take the legal staff view on things
> is dangerous.  What if they say the law does not require something when
> someone knows better.  Better to have a null review.  I have not,
> however, removed these as they were an entire section.    I would like
> to see that section reworded or removed before approving the documents.
>
> IMHO, I don?t see the need for a public comment period on every time this
> policy might be used. If a new set of policies and processes are adopted
> for handling WHOIS conflicts with privacy laws, then they should be clear
> enough during implementation to not require public comment, right? Isn?t
> this the case with all policies? For instance, is there a public comment
> period every time a new registrar signs a contract with ICANN? Or will
> there be a public comment period when implementation of the ?thick? WHOIS
> policy kicks in?
>
> Another thought is that a public comment period will also lengthen the
> period during which a registrar will potentially be at risk for
> non-compliance with local laws. Unless there is an important reason why
> there should be a public comment for each of the resolution scenarios, then
> I suggest we support Kathy?s recommendation to not have any.
>
> Thanks.
>
> Amr
>
> I also removed a bunch of weasel words like 'respectfully'
>
> avri
>
>
>
>
>
>
> On 30-Jul-14 14:28, Avri Doria wrote:
>
> Hi,
>
> Started reviewing them, actually Stephanie's comments.  They are written
> from an NCUC perspective and need to be approved by them, not us.
>
> avri
>
>
> On 30-Jul-14 11:36, Rafik Dammak wrote:
>
> Hi everyone,
>
> Kathy sent a draft comment to the whois conflict with local laws. we
> have a tight schedule and we should act quickly.
> we are responding during the reply period which means the last chance
> for us to do so.
> @Maria can you please follow-up with this request?
>
> Best,
>
> Rafik
>
>
>
> ---------- Forwarded message ----------
> From: *Kathy Kleiman* <kathy at kathykleiman.com
> <mailto:kathy at kathykleiman.com> <kathy at kathykleiman.com>>
> Date: 2014-07-30 2:44 GMT+09:00
> Subject: Draft Comments for Whois Proceeding
> To: Rafik Dammak <rafik.dammak at gmail.com
> <mailto:rafik.dammak at gmail.com> <rafik.dammak at gmail.com>>,
> NCSG-DISCUSS at listserv.syr.edu
> <mailto:NCSG-DISCUSS at listserv.syr.edu> <NCSG-DISCUSS at listserv.syr.edu>
>
>
> To Rafik, NCSG Executive Committee and NCSG Membership,
>
> There is an important, but very quiet comment proceeding that has been
> taking place this summer. It is the /Review of the ICANN Procedure for
> Handling WHOIS Conflicts with Privacy Law///at
> /
> https://www.icann.org/public-comments/whois-conflicts-procedure-2014-05-22-en/
>
>
> Stephanie put out a call for comments, and not seeing any, I drafted
> these.  It has been dismayeding ever since ICANN adopted its Consensus
> Procedure for Handling WHOIS Conflicts with Privacy law -- because it
> basically requires that Registrars and Registries have to be sued or
> receive an official notice of violation before they can ask ICANN for a
> waiver of the Whois requirements. That always seemed very unfair- that
> you have to be exposed to allegation of illegal activity in order to
> protect yourself or your Registrants under your national data protection
> and privacy laws.
>
> In the more recent Data Retention Specification, of the 2013 RAA, ICANN
> Staff and Lawyers saw this problem and corrected it -- now Registrars
> can be much more pro-active in showing ICANN that a certain clause in
> their contract (e.g., extended data retention) is a clear violation of
> their national law (e.g., more limited data retention).
>
> So to this important comment proceeding, I drafted these comments for us
> to submit. As Reply Comments (during the Reply Period), we are asked to
> respond to other commenters. That's easy as the European Commission and
> Registrar Blacknight submitted useful comments.
>
> Rafik, can we edit, finalize and submit by the deadline on Friday?
> Comments below and attached. If you have edits, in the interest of time,
> kindly suggest alternate language. Tx!!
>
> Best,
> Kathy
> --------------------------------------------------------------------------------------------------------
>
>
> DRAFT 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/
>
>
> *Introduction*
>
> The Noncommercial Stakeholders Group represents noncommercial
> organizations 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. ICANN Registries and Registrars are no
> different ? they want and need to abide by their laws.
>
> Thus, it is 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).
> 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, multiple 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 data protection and privacy laws.
>
> At the time, we never expected this Consensus Procedure to be an end
> itself ? but the first step of many steps. It was an ?end? for too long,
> so we are glad the discussion is reopened and once again we seek to
> allow Registrars and Registries to be in full compliance with their
> national data protection and privacy laws ? from the moment they enter
> into their contracts with ICANN.
>
> *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 *
>
> **
>
> /*[Stephanie, Tamir or Others with Expertise in Canadian and European
> Data Protection Laws may choose to add something here]. */
>
> 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.
>
>     1.
>
>        Is it impractical for ICANN to require that a contracted party
>        already has litigation 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 that national law. 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:
>
>      o
>
>        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:
>
>      o
>
>        ?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?
>
> 1.1 a Response: 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:
>
>      o
>
>        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;
>
>      o
>
>        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);
>
>
>      o
>
>        Receipt of a written legal opinion from a nationally recognized
>        law firm 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
>
>
>      o
>
>        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 2013 Registrar 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.
>
>
>    1.3 Are 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.
>
>
>    1.4 Should 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.
>
>
>    2.1 Are 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.
>
>
>    3.1 How 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.*
>
> This is a critical policy item for such outreach and input.
>
>
>    3.2 If 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.
>
>
>    4.1 Would 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
>
>
>    5.2 Is 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. /
>
>
>    5.3 Should 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,
>
> NCSG
>
>
> DRAFT
>
>
>
>
>
> _______________________________________________
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> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
>
>  _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
>
>
>  <NSCG DRAFT Comments for Review of WHOIS Consensus
> Proceduresp+ad.doc>_______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
>
>
> _______________________________________________
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>
>
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From stephanie.perrin  Thu Jul 31 18:56:20 2014
From: stephanie.perrin (Stephanie Perrin)
Date: Thu, 31 Jul 2014 11:56:20 -0400
Subject: [PC-NCSG] [NCSG-Discuss] [urgent] Draft Comments for Whois
	Proceeding
In-Reply-To: <CAH5sTh=k-SvUMPfznLyAAkyD+K=QhCRFu5SYSBJnNMUcSjHPdQ@mail.gmail.com>
References: <CAH5sThmh9SMgm4qYvDfg_K9rcR=mPT-dyjdvRFgkWDT3vz7pwA@mail.gmail.com>	<53D8E4D0.8080805@acm.org>
	<53D8EBB3.7060404@acm.org>	<5762B7A6-B931-4E7A-AD19-7B2D92944023@egyptig.org>	<53DA44C7.7090700@mail.utoronto.ca>
	<53DA5C0F.9050401@kathykleiman.com>
	<CAH5sTh=k-SvUMPfznLyAAkyD+K=QhCRFu5SYSBJnNMUcSjHPdQ@mail.gmail.com>
Message-ID: <53DA6724.20108@mail.utoronto.ca>

So I vote yes, and am reviewing the last text Kathy sent right now...
SP
On 2014-07-31, 11:53, Rafik Dammak wrote:
> Hi Kathy,
>
> thank you for the changes, we should hear from other member of PC, 
> Maria can make the last call and declare consensus.
> the deadline for sending the comment is 1 Aug 2014 23:59 UTC, so we 
> need to get endorsement before that.
>
> Best,
> Rafik
>
>
> 2014-08-01 0:09 GMT+09:00 Kathy Kleiman <kathy at kathykleiman.com 
> <mailto:kathy at kathykleiman.com>>:
>
>     Hi Stephanie,
>     Tx for adding Avri's comments. I've reviewed all of the changes,
>     and also added one more to this most recent version. _Newest
>     version (NCSGEdits3) attached. _
>     **Due tomorrow**
>     Best,
>     Kathy
>     :
>>     I also agreed with Avri and inserted a few of her changes, Kathy
>>     did not get those edits....we need to make sure we have a final
>>     copy that Rafik can sign, which reflects all the agreed changes. 
>>     Do you want me to have another edit one last time, to make sure
>>     that Joy's comments (which were on an earlier draft) and Avri's
>>     are all in there?
>>     cheers stephanie
>>     On 2014-07-31, 9:22, Amr Elsadr wrote:
>>>     Hi all,
>>>
>>>     On Jul 30, 2014, at 2:57 PM, Avri Doria <avri at ACM.ORG>
>>>     <mailto:avri at ACM.ORG> wrote:
>>>
>>>>     hi,
>>>>
>>>>     Reviewed the document.
>>>>
>>>>     Made a change so it could be a NCSG document.
>>>     Thanks.
>>>
>>>>     There are parts I am uncomfortable with, some of which I
>>>>     deleted and
>>>>     some of which I left and still am uncomfortable with.
>>>>
>>>>     I do not think we should ever dismiss the Multistakeholder
>>>>     model.  I do
>>>>     not wish to find ourselves in the situation of being quoted for
>>>>     having
>>>>     suggested that there are times when the model should be
>>>>     superseded. That
>>>>     would be a gold mine for some.  I deleted those references.
>>>     Fully agree. Although I don't feel that was the intent, it could
>>>     certainly be perceived that way. No need to bring it up.
>>>
>>>>     I am also uncomfortable with saying there are things that don't
>>>>     need
>>>>     public comment on.  To just have to take the legal staff view
>>>>     on things
>>>>     is dangerous.  What if they say the law does not require
>>>>     something when
>>>>     someone knows better.  Better to have a null review.  I have not,
>>>>     however, removed these as they were an entire section.    I
>>>>     would like
>>>>     to see that section reworded or removed before approving the
>>>>     documents.
>>>     IMHO, I don't see the need for a public comment period on every
>>>     time this policy might be used. If a new set of policies and
>>>     processes are adopted for handling WHOIS conflicts with privacy
>>>     laws, then they should be clear enough during implementation to
>>>     not require public comment, right? Isn't this the case with all
>>>     policies? For instance, is there a public comment period every
>>>     time a new registrar signs a contract with ICANN? Or will there
>>>     be a public comment period when implementation of the "thick"
>>>     WHOIS policy kicks in?
>>>
>>>     Another thought is that a public comment period will also
>>>     lengthen the period during which a registrar will potentially be
>>>     at risk for non-compliance with local laws. Unless there is an
>>>     important reason why there should be a public comment for each
>>>     of the resolution scenarios, then I suggest we support Kathy's
>>>     recommendation to not have any.
>>>
>>>     Thanks.
>>>
>>>     Amr
>>>
>>>>     I also removed a bunch of weasel words like 'respectfully'
>>>>
>>>>     avri
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>     On 30-Jul-14 14:28, Avri Doria wrote:
>>>>>     Hi,
>>>>>
>>>>>     Started reviewing them, actually Stephanie's comments.  They
>>>>>     are written
>>>>>     from an NCUC perspective and need to be approved by them, not us.
>>>>>
>>>>>     avri
>>>>>
>>>>>
>>>>>     On 30-Jul-14 11:36, Rafik Dammak wrote:
>>>>>>     Hi everyone,
>>>>>>
>>>>>>     Kathy sent a draft comment to the whois conflict with local
>>>>>>     laws. we
>>>>>>     have a tight schedule and we should act quickly.
>>>>>>     we are responding during the reply period which means the
>>>>>>     last chance
>>>>>>     for us to do so.
>>>>>>     @Maria can you please follow-up with this request?
>>>>>>
>>>>>>     Best,
>>>>>>
>>>>>>     Rafik
>>>>>>
>>>>>>
>>>>>>
>>>>>>     ---------- Forwarded message ----------
>>>>>>     From: *Kathy Kleiman* <kathy at kathykleiman.com
>>>>>>     <mailto:kathy at kathykleiman.com>
>>>>>>     <mailto:kathy at kathykleiman.com> <mailto:kathy at kathykleiman.com>>
>>>>>>     Date: 2014-07-30 2:44 GMT+09:00
>>>>>>     Subject: Draft Comments for Whois Proceeding
>>>>>>     To: Rafik Dammak <rafik.dammak at gmail.com
>>>>>>     <mailto:rafik.dammak at gmail.com>
>>>>>>     <mailto:rafik.dammak at gmail.com>
>>>>>>     <mailto:rafik.dammak at gmail.com>>,
>>>>>>     NCSG-DISCUSS at listserv.syr.edu
>>>>>>     <mailto:NCSG-DISCUSS at listserv.syr.edu>
>>>>>>     <mailto:NCSG-DISCUSS at listserv.syr.edu>
>>>>>>     <mailto:NCSG-DISCUSS at listserv.syr.edu>
>>>>>>
>>>>>>
>>>>>>     To Rafik, NCSG Executive Committee and NCSG Membership,
>>>>>>
>>>>>>     There is an important, but very quiet comment proceeding that
>>>>>>     has been
>>>>>>     taking place this summer. It is the /Review of the ICANN
>>>>>>     Procedure for
>>>>>>     Handling WHOIS Conflicts with Privacy Law///at
>>>>>>     /https://www.icann.org/public-comments/whois-conflicts-procedure-2014-05-22-en/
>>>>>>
>>>>>>
>>>>>>
>>>>>>     Stephanie put out a call for comments, and not seeing any, I
>>>>>>     drafted
>>>>>>     these.  It has been dismayeding ever since ICANN adopted its
>>>>>>     Consensus
>>>>>>     Procedure for Handling WHOIS Conflicts with Privacy law --
>>>>>>     because it
>>>>>>     basically requires that Registrars and Registries have to be
>>>>>>     sued or
>>>>>>     receive an official notice of violation before they can ask
>>>>>>     ICANN for a
>>>>>>     waiver of the Whois requirements. That always seemed very
>>>>>>     unfair- that
>>>>>>     you have to be exposed to allegation of illegal activity in
>>>>>>     order to
>>>>>>     protect yourself or your Registrants under your national data
>>>>>>     protection
>>>>>>     and privacy laws.
>>>>>>
>>>>>>     In the more recent Data Retention Specification, of the 2013
>>>>>>     RAA, ICANN
>>>>>>     Staff and Lawyers saw this problem and corrected it -- now
>>>>>>     Registrars
>>>>>>     can be much more pro-active in showing ICANN that a certain
>>>>>>     clause in
>>>>>>     their contract (e.g., extended data retention) is a clear
>>>>>>     violation of
>>>>>>     their national law (e.g., more limited data retention).
>>>>>>
>>>>>>     So to this important comment proceeding, I drafted these
>>>>>>     comments for us
>>>>>>     to submit. As Reply Comments (during the Reply Period), we
>>>>>>     are asked to
>>>>>>     respond to other commenters. That's easy as the European
>>>>>>     Commission and
>>>>>>     Registrar Blacknight submitted useful comments.
>>>>>>
>>>>>>     Rafik, can we edit, finalize and submit by the deadline on
>>>>>>     Friday?
>>>>>>     Comments below and attached. If you have edits, in the
>>>>>>     interest of time,
>>>>>>     kindly suggest alternate language. Tx!!
>>>>>>
>>>>>>     Best,
>>>>>>     Kathy
>>>>>>     --------------------------------------------------------------------------------------------------------
>>>>>>
>>>>>>
>>>>>>     DRAFT 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/
>>>>>>
>>>>>>
>>>>>>
>>>>>>     *Introduction*
>>>>>>
>>>>>>     The Noncommercial Stakeholders Group represents noncommercial
>>>>>>     organizations 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. ICANN Registries and Registrars
>>>>>>     are no
>>>>>>     different -- they want and need to abide by their laws.
>>>>>>
>>>>>>     Thus, it is 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).
>>>>>>     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,
>>>>>>     multiple 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 data protection and
>>>>>>     privacy laws.
>>>>>>
>>>>>>     At the time, we never expected this Consensus Procedure to be
>>>>>>     an end
>>>>>>     itself -- but the first step of many steps. It was an "end"
>>>>>>     for too long,
>>>>>>     so we are glad the discussion is reopened and once again we
>>>>>>     seek to
>>>>>>     allow Registrars and Registries to be in full compliance with
>>>>>>     their
>>>>>>     national data protection and privacy laws -- from the moment
>>>>>>     they enter
>>>>>>     into their contracts with ICANN.
>>>>>>
>>>>>>     *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 *
>>>>>>
>>>>>>     **
>>>>>>
>>>>>>     /*[Stephanie, Tamir or Others with Expertise in Canadian and
>>>>>>     European
>>>>>>     Data Protection Laws may choose to add something here]. */
>>>>>>
>>>>>>     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.
>>>>>>
>>>>>>         1.
>>>>>>
>>>>>>            Is it impractical for ICANN to require that a
>>>>>>     contracted party
>>>>>>            already has litigation 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 that national law. 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:
>>>>>>
>>>>>>          o
>>>>>>
>>>>>>            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:
>>>>>>
>>>>>>          o
>>>>>>
>>>>>>            "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?
>>>>>>
>>>>>>     1.1 a Response: 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:
>>>>>>
>>>>>>          o
>>>>>>
>>>>>>            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;
>>>>>>
>>>>>>          o
>>>>>>
>>>>>>            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);
>>>>>>
>>>>>>
>>>>>>          o
>>>>>>
>>>>>>            Receipt of a written legal opinion from a nationally
>>>>>>     recognized
>>>>>>            law firm 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
>>>>>>
>>>>>>
>>>>>>          o
>>>>>>
>>>>>>            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 2013 Registrar 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.
>>>>>>
>>>>>>
>>>>>>        1.3 Are 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.
>>>>>>
>>>>>>
>>>>>>        1.4 Should 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.
>>>>>>
>>>>>>
>>>>>>        2.1 Are 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.
>>>>>>
>>>>>>
>>>>>>        3.1 How 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.*
>>>>>>
>>>>>>     This is a critical policy item for such outreach and input.
>>>>>>
>>>>>>
>>>>>>        3.2 If 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.
>>>>>>
>>>>>>
>>>>>>        4.1 Would 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
>>>>>>
>>>>>>
>>>>>>        5.2 Is 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. /
>>>>>>
>>>>>>
>>>>>>        5.3 Should 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,
>>>>>>
>>>>>>     NCSG
>>>>>>
>>>>>>
>>>>>>     DRAFT
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>>     _______________________________________________
>>>>>>     PC-NCSG mailing list
>>>>>>     PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>>>>>>     http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>>>>
>>>>>     _______________________________________________
>>>>>     PC-NCSG mailing list
>>>>>     PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>>>>>     http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>>>
>>>>>
>>>>     <NSCG DRAFT Comments for Review of WHOIS Consensus
>>>>     Proceduresp+ad.doc>_______________________________________________
>>>>     PC-NCSG mailing list
>>>>     PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>>>>     http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>
>>>     _______________________________________________
>>>     PC-NCSG mailing list
>>>     PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>>>     http://mailman.ipjustice.org/listinfo/pc-ncsg
>
>
>
>
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg

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From rafik.dammak  Thu Jul 31 19:00:05 2014
From: rafik.dammak (Rafik Dammak)
Date: Fri, 1 Aug 2014 01:00:05 +0900
Subject: [PC-NCSG] [NCSG-Discuss] [urgent] Draft Comments for Whois
	Proceeding
In-Reply-To: <53DA6724.20108@mail.utoronto.ca>
References: <CAH5sThmh9SMgm4qYvDfg_K9rcR=mPT-dyjdvRFgkWDT3vz7pwA@mail.gmail.com>
	<53D8E4D0.8080805@acm.org> <53D8EBB3.7060404@acm.org>
	<5762B7A6-B931-4E7A-AD19-7B2D92944023@egyptig.org>
	<53DA44C7.7090700@mail.utoronto.ca> <53DA5C0F.9050401@kathykleiman.com>
	<CAH5sTh=k-SvUMPfznLyAAkyD+K=QhCRFu5SYSBJnNMUcSjHPdQ@mail.gmail.com>
	<53DA6724.20108@mail.utoronto.ca>
Message-ID: <CAH5sThmqh8EvRM7GBHv=JNo1JVncT2GiYvVZ0DUSdn3itoC40Q@mail.gmail.com>

thanks Stephanie, I am attaching the latest version

Rafik



2014-08-01 0:56 GMT+09:00 Stephanie Perrin <
stephanie.perrin at mail.utoronto.ca>:

>  So I vote yes, and am reviewing the last text Kathy sent right now...
> SP
>
> On 2014-07-31, 11:53, Rafik Dammak wrote:
>
> Hi Kathy,
>
>  thank you for the changes, we should hear from other member of PC, Maria
> can make the last call and declare consensus.
> the deadline for sending the comment is 1 Aug 2014 23:59 UTC, so we need
> to get endorsement before that.
>
>  Best,
>  Rafik
>
>
> 2014-08-01 0:09 GMT+09:00 Kathy Kleiman <kathy at kathykleiman.com>:
>
>>  Hi Stephanie,
>> Tx for adding Avri's comments. I've reviewed all of the changes, and also
>> added one more to this most recent version. *Newest version (NCSGEdits3)
>> attached. *
>> **Due tomorrow**
>> Best,
>> Kathy
>> :
>>
>> I also agreed with Avri and inserted a few of her changes, Kathy did not
>> get those edits....we need to make sure we have a final copy that Rafik can
>> sign, which reflects all the agreed changes.  Do you want me to have
>> another edit one last time, to make sure that Joy's comments (which were on
>> an earlier draft) and Avri's are all in there?
>> cheers stephanie
>> On 2014-07-31, 9:22, Amr Elsadr wrote:
>>
>> Hi all,
>>
>> On Jul 30, 2014, at 2:57 PM, Avri Doria <avri at ACM.ORG> <avri at ACM.ORG>
>> wrote:
>>
>> hi,
>>
>> Reviewed the document.
>>
>> Made a change so it could be a NCSG document.
>>
>> Thanks.
>>
>> There are parts I am uncomfortable with, some of which I deleted and
>> some of which I left and still am uncomfortable with.
>>
>> I do not think we should ever dismiss the Multistakeholder model.  I do
>> not wish to find ourselves in the situation of being quoted for having
>> suggested that there are times when the model should be superseded. That
>> would be a gold mine for some.  I deleted those references.
>>
>> Fully agree. Although I don?t feel that was the intent, it could
>> certainly be perceived that way. No need to bring it up.
>>
>> I am also uncomfortable with saying there are things that don't need
>> public comment on.  To just have to take the legal staff view on things
>> is dangerous.  What if they say the law does not require something when
>> someone knows better.  Better to have a null review.  I have not,
>> however, removed these as they were an entire section.    I would like
>> to see that section reworded or removed before approving the documents.
>>
>> IMHO, I don?t see the need for a public comment period on every time this
>> policy might be used. If a new set of policies and processes are adopted
>> for handling WHOIS conflicts with privacy laws, then they should be clear
>> enough during implementation to not require public comment, right? Isn?t
>> this the case with all policies? For instance, is there a public comment
>> period every time a new registrar signs a contract with ICANN? Or will
>> there be a public comment period when implementation of the ?thick? WHOIS
>> policy kicks in?
>>
>> Another thought is that a public comment period will also lengthen the
>> period during which a registrar will potentially be at risk for
>> non-compliance with local laws. Unless there is an important reason why
>> there should be a public comment for each of the resolution scenarios, then
>> I suggest we support Kathy?s recommendation to not have any.
>>
>> Thanks.
>>
>> Amr
>>
>> I also removed a bunch of weasel words like 'respectfully'
>>
>> avri
>>
>>
>>
>>
>>
>>
>> On 30-Jul-14 14:28, Avri Doria wrote:
>>
>> Hi,
>>
>> Started reviewing them, actually Stephanie's comments.  They are written
>> from an NCUC perspective and need to be approved by them, not us.
>>
>> avri
>>
>>
>> On 30-Jul-14 11:36, Rafik Dammak wrote:
>>
>> Hi everyone,
>>
>> Kathy sent a draft comment to the whois conflict with local laws. we
>> have a tight schedule and we should act quickly.
>> we are responding during the reply period which means the last chance
>> for us to do so.
>> @Maria can you please follow-up with this request?
>>
>> Best,
>>
>> Rafik
>>
>>
>>
>> ---------- Forwarded message ----------
>> From: *Kathy Kleiman* <kathy at kathykleiman.com
>> <mailto:kathy at kathykleiman.com> <kathy at kathykleiman.com>>
>> Date: 2014-07-30 2:44 GMT+09:00
>> Subject: Draft Comments for Whois Proceeding
>> To: Rafik Dammak <rafik.dammak at gmail.com
>> <mailto:rafik.dammak at gmail.com> <rafik.dammak at gmail.com>>,
>> NCSG-DISCUSS at listserv.syr.edu
>> <mailto:NCSG-DISCUSS at listserv.syr.edu> <NCSG-DISCUSS at listserv.syr.edu>
>>
>>
>> To Rafik, NCSG Executive Committee and NCSG Membership,
>>
>> There is an important, but very quiet comment proceeding that has been
>> taking place this summer. It is the /Review of the ICANN Procedure for
>> Handling WHOIS Conflicts with Privacy Law///at
>> /
>> https://www.icann.org/public-comments/whois-conflicts-procedure-2014-05-22-en/
>>
>>
>> Stephanie put out a call for comments, and not seeing any, I drafted
>> these.  It has been dismayeding ever since ICANN adopted its Consensus
>> Procedure for Handling WHOIS Conflicts with Privacy law -- because it
>> basically requires that Registrars and Registries have to be sued or
>> receive an official notice of violation before they can ask ICANN for a
>> waiver of the Whois requirements. That always seemed very unfair- that
>> you have to be exposed to allegation of illegal activity in order to
>> protect yourself or your Registrants under your national data protection
>> and privacy laws.
>>
>> In the more recent Data Retention Specification, of the 2013 RAA, ICANN
>> Staff and Lawyers saw this problem and corrected it -- now Registrars
>> can be much more pro-active in showing ICANN that a certain clause in
>> their contract (e.g., extended data retention) is a clear violation of
>> their national law (e.g., more limited data retention).
>>
>> So to this important comment proceeding, I drafted these comments for us
>> to submit. As Reply Comments (during the Reply Period), we are asked to
>> respond to other commenters. That's easy as the European Commission and
>> Registrar Blacknight submitted useful comments.
>>
>> Rafik, can we edit, finalize and submit by the deadline on Friday?
>> Comments below and attached. If you have edits, in the interest of time,
>> kindly suggest alternate language. Tx!!
>>
>> Best,
>> Kathy
>> --------------------------------------------------------------------------------------------------------
>>
>>
>> DRAFT 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/
>>
>>
>> *Introduction*
>>
>> The Noncommercial Stakeholders Group represents noncommercial
>> organizations 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. ICANN Registries and Registrars are no
>> different ? they want and need to abide by their laws.
>>
>> Thus, it is 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).
>> 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, multiple 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 data protection and privacy laws.
>>
>> At the time, we never expected this Consensus Procedure to be an end
>> itself ? but the first step of many steps. It was an ?end? for too long,
>> so we are glad the discussion is reopened and once again we seek to
>> allow Registrars and Registries to be in full compliance with their
>> national data protection and privacy laws ? from the moment they enter
>> into their contracts with ICANN.
>>
>> *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 *
>>
>> **
>>
>> /*[Stephanie, Tamir or Others with Expertise in Canadian and European
>> Data Protection Laws may choose to add something here]. */
>>
>> 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.
>>
>>     1.
>>
>>        Is it impractical for ICANN to require that a contracted party
>>        already has litigation 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 that national law. 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:
>>
>>      o
>>
>>        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:
>>
>>      o
>>
>>        ?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?
>>
>> 1.1 a Response: 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:
>>
>>      o
>>
>>        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;
>>
>>      o
>>
>>        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);
>>
>>
>>      o
>>
>>        Receipt of a written legal opinion from a nationally recognized
>>        law firm 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
>>
>>
>>      o
>>
>>        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 2013 Registrar 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.
>>
>>
>>    1.3 Are 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.
>>
>>
>>    1.4 Should 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.
>>
>>
>>    2.1 Are 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.
>>
>>
>>    3.1 How 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.*
>>
>> This is a critical policy item for such outreach and input.
>>
>>
>>    3.2 If 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.
>>
>>
>>    4.1 Would 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
>>
>>
>>    5.2 Is 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. /
>>
>>
>>    5.3 Should 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,
>>
>> NCSG
>>
>>
>> DRAFT
>>
>>
>>
>>
>>
>> _______________________________________________
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>>
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>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>
>>
>>  <NSCG DRAFT Comments for Review of WHOIS Consensus
>> Proceduresp+ad.doc>_______________________________________________
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>>
>>
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>>
>>
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From avri  Thu Jul 31 19:15:14 2014
From: avri (Avri Doria)
Date: Thu, 31 Jul 2014 18:15:14 +0200
Subject: [PC-NCSG] [NCSG-Discuss] [urgent] Draft Comments for Whois
	Proceeding
In-Reply-To: <CAH5sTh=k-SvUMPfznLyAAkyD+K=QhCRFu5SYSBJnNMUcSjHPdQ@mail.gmail.com>
References: <CAH5sThmh9SMgm4qYvDfg_K9rcR=mPT-dyjdvRFgkWDT3vz7pwA@mail.gmail.com>	<53D8E4D0.8080805@acm.org>
	<53D8EBB3.7060404@acm.org>	<5762B7A6-B931-4E7A-AD19-7B2D92944023@egyptig.org>	<53DA44C7.7090700@mail.utoronto.ca>
	<53DA5C0F.9050401@kathykleiman.com>
	<CAH5sTh=k-SvUMPfznLyAAkyD+K=QhCRFu5SYSBJnNMUcSjHPdQ@mail.gmail.com>
Message-ID: <53DA6B92.3050501@acm.org>

Hi,

As I mentioned in my first comment, I object to anything that says:
- multistakeholder participation is unnecessary
- that comment periods are unnecessary.

at this point i do not support it as written.

avri


On 31-Jul-14 17:53, Rafik Dammak wrote:
> Hi Kathy,
> 
> thank you for the changes, we should hear from other member of PC, Maria
> can make the last call and declare consensus.
> the deadline for sending the comment is 1 Aug 2014 23:59 UTC, so we need
> to get endorsement before that. 
> 
> Best,
> Rafik 
> 
> 
> 2014-08-01 0:09 GMT+09:00 Kathy Kleiman <kathy at kathykleiman.com
> <mailto:kathy at kathykleiman.com>>:
> 
>     Hi Stephanie,
>     Tx for adding Avri's comments. I've reviewed all of the changes, and
>     also added one more to this most recent version. _Newest version
>     (NCSGEdits3) attached. _
>     **Due tomorrow**
>     Best,
>     Kathy
>     :
>>     I also agreed with Avri and inserted a few of her changes, Kathy
>>     did not get those edits....we need to make sure we have a final
>>     copy that Rafik can sign, which reflects all the agreed changes. 
>>     Do you want me to have another edit one last time, to make sure
>>     that Joy's comments (which were on an earlier draft) and Avri's
>>     are all in there?
>>     cheers stephanie
>>     On 2014-07-31, 9:22, Amr Elsadr wrote:
>>>     Hi all,
>>>
>>>     On Jul 30, 2014, at 2:57 PM, Avri Doria <avri at ACM.ORG>
>>>     <mailto:avri at ACM.ORG> wrote:
>>>
>>>>     hi,
>>>>
>>>>     Reviewed the document.
>>>>
>>>>     Made a change so it could be a NCSG document.
>>>     Thanks.
>>>
>>>>     There are parts I am uncomfortable with, some of which I deleted
>>>>     and
>>>>     some of which I left and still am uncomfortable with.
>>>>
>>>>     I do not think we should ever dismiss the Multistakeholder
>>>>     model.  I do
>>>>     not wish to find ourselves in the situation of being quoted for
>>>>     having
>>>>     suggested that there are times when the model should be
>>>>     superseded. That
>>>>     would be a gold mine for some.  I deleted those references.
>>>     Fully agree. Although I don?t feel that was the intent, it could
>>>     certainly be perceived that way. No need to bring it up.
>>>
>>>>     I am also uncomfortable with saying there are things that don't
>>>>     need
>>>>     public comment on.  To just have to take the legal staff view on
>>>>     things
>>>>     is dangerous.  What if they say the law does not require
>>>>     something when
>>>>     someone knows better.  Better to have a null review.  I have not,
>>>>     however, removed these as they were an entire section.    I
>>>>     would like
>>>>     to see that section reworded or removed before approving the
>>>>     documents.
>>>     IMHO, I don?t see the need for a public comment period on every
>>>     time this policy might be used. If a new set of policies and
>>>     processes are adopted for handling WHOIS conflicts with privacy
>>>     laws, then they should be clear enough during implementation to
>>>     not require public comment, right? Isn?t this the case with all
>>>     policies? For instance, is there a public comment period every
>>>     time a new registrar signs a contract with ICANN? Or will there
>>>     be a public comment period when implementation of the ?thick?
>>>     WHOIS policy kicks in?
>>>
>>>     Another thought is that a public comment period will also
>>>     lengthen the period during which a registrar will potentially be
>>>     at risk for non-compliance with local laws. Unless there is an
>>>     important reason why there should be a public comment for each of
>>>     the resolution scenarios, then I suggest we support Kathy?s
>>>     recommendation to not have any.
>>>
>>>     Thanks.
>>>
>>>     Amr
>>>
>>>>     I also removed a bunch of weasel words like 'respectfully'
>>>>
>>>>     avri
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>     On 30-Jul-14 14:28, Avri Doria wrote:
>>>>>     Hi,
>>>>>
>>>>>     Started reviewing them, actually Stephanie's comments.  They
>>>>>     are written
>>>>>     from an NCUC perspective and need to be approved by them, not us.
>>>>>
>>>>>     avri
>>>>>
>>>>>
>>>>>     On 30-Jul-14 11:36, Rafik Dammak wrote:
>>>>>>     Hi everyone,
>>>>>>
>>>>>>     Kathy sent a draft comment to the whois conflict with local
>>>>>>     laws. we
>>>>>>     have a tight schedule and we should act quickly.
>>>>>>     we are responding during the reply period which means the last
>>>>>>     chance
>>>>>>     for us to do so.
>>>>>>     @Maria can you please follow-up with this request?
>>>>>>
>>>>>>     Best,
>>>>>>
>>>>>>     Rafik
>>>>>>
>>>>>>
>>>>>>
>>>>>>     ---------- Forwarded message ----------
>>>>>>     From: *Kathy Kleiman* <kathy at kathykleiman.com
>>>>>>     <mailto:kathy at kathykleiman.com>
>>>>>>     <mailto:kathy at kathykleiman.com> <mailto:kathy at kathykleiman.com>>
>>>>>>     Date: 2014-07-30 2:44 GMT+09:00
>>>>>>     Subject: Draft Comments for Whois Proceeding
>>>>>>     To: Rafik Dammak <rafik.dammak at gmail.com
>>>>>>     <mailto:rafik.dammak at gmail.com>
>>>>>>     <mailto:rafik.dammak at gmail.com>
>>>>>>     <mailto:rafik.dammak at gmail.com>>,
>>>>>>     NCSG-DISCUSS at listserv.syr.edu
>>>>>>     <mailto:NCSG-DISCUSS at listserv.syr.edu>
>>>>>>     <mailto:NCSG-DISCUSS at listserv.syr.edu>
>>>>>>     <mailto:NCSG-DISCUSS at listserv.syr.edu>
>>>>>>
>>>>>>
>>>>>>     To Rafik, NCSG Executive Committee and NCSG Membership,
>>>>>>
>>>>>>     There is an important, but very quiet comment proceeding that
>>>>>>     has been
>>>>>>     taking place this summer. It is the /Review of the ICANN
>>>>>>     Procedure for
>>>>>>     Handling WHOIS Conflicts with Privacy Law///at
>>>>>>     /https://www.icann.org/public-comments/whois-conflicts-procedure-2014-05-22-en/
>>>>>>
>>>>>>
>>>>>>
>>>>>>     Stephanie put out a call for comments, and not seeing any, I
>>>>>>     drafted
>>>>>>     these.  It has been dismayeding ever since ICANN adopted its
>>>>>>     Consensus
>>>>>>     Procedure for Handling WHOIS Conflicts with Privacy law --
>>>>>>     because it
>>>>>>     basically requires that Registrars and Registries have to be
>>>>>>     sued or
>>>>>>     receive an official notice of violation before they can ask
>>>>>>     ICANN for a
>>>>>>     waiver of the Whois requirements. That always seemed very
>>>>>>     unfair- that
>>>>>>     you have to be exposed to allegation of illegal activity in
>>>>>>     order to
>>>>>>     protect yourself or your Registrants under your national data
>>>>>>     protection
>>>>>>     and privacy laws.
>>>>>>
>>>>>>     In the more recent Data Retention Specification, of the 2013
>>>>>>     RAA, ICANN
>>>>>>     Staff and Lawyers saw this problem and corrected it -- now
>>>>>>     Registrars
>>>>>>     can be much more pro-active in showing ICANN that a certain
>>>>>>     clause in
>>>>>>     their contract (e.g., extended data retention) is a clear
>>>>>>     violation of
>>>>>>     their national law (e.g., more limited data retention).
>>>>>>
>>>>>>     So to this important comment proceeding, I drafted these
>>>>>>     comments for us
>>>>>>     to submit. As Reply Comments (during the Reply Period), we are
>>>>>>     asked to
>>>>>>     respond to other commenters. That's easy as the European
>>>>>>     Commission and
>>>>>>     Registrar Blacknight submitted useful comments.
>>>>>>
>>>>>>     Rafik, can we edit, finalize and submit by the deadline on
>>>>>>     Friday?
>>>>>>     Comments below and attached. If you have edits, in the
>>>>>>     interest of time,
>>>>>>     kindly suggest alternate language. Tx!!
>>>>>>
>>>>>>     Best,
>>>>>>     Kathy
>>>>>>     --------------------------------------------------------------------------------------------------------
>>>>>>
>>>>>>
>>>>>>     DRAFT 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/
>>>>>>
>>>>>>
>>>>>>
>>>>>>     *Introduction*
>>>>>>
>>>>>>     The Noncommercial Stakeholders Group represents noncommercial
>>>>>>     organizations 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. ICANN Registries and Registrars
>>>>>>     are no
>>>>>>     different ? they want and need to abide by their laws.
>>>>>>
>>>>>>     Thus, it is 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).
>>>>>>     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,
>>>>>>     multiple 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 data protection and
>>>>>>     privacy laws.
>>>>>>
>>>>>>     At the time, we never expected this Consensus Procedure to be
>>>>>>     an end
>>>>>>     itself ? but the first step of many steps. It was an ?end? for
>>>>>>     too long,
>>>>>>     so we are glad the discussion is reopened and once again we
>>>>>>     seek to
>>>>>>     allow Registrars and Registries to be in full compliance with
>>>>>>     their
>>>>>>     national data protection and privacy laws ? from the moment
>>>>>>     they enter
>>>>>>     into their contracts with ICANN.
>>>>>>
>>>>>>     *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 *
>>>>>>
>>>>>>     **
>>>>>>
>>>>>>     /*[Stephanie, Tamir or Others with Expertise in Canadian and
>>>>>>     European
>>>>>>     Data Protection Laws may choose to add something here]. */
>>>>>>
>>>>>>     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.
>>>>>>
>>>>>>         1.
>>>>>>
>>>>>>            Is it impractical for ICANN to require that a
>>>>>>     contracted party
>>>>>>            already has litigation 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 that national law. 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:
>>>>>>
>>>>>>          o
>>>>>>
>>>>>>            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:
>>>>>>
>>>>>>          o
>>>>>>
>>>>>>            ?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?
>>>>>>
>>>>>>     1.1 a Response: 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:
>>>>>>
>>>>>>          o
>>>>>>
>>>>>>            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;
>>>>>>
>>>>>>          o
>>>>>>
>>>>>>            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);
>>>>>>
>>>>>>
>>>>>>          o
>>>>>>
>>>>>>            Receipt of a written legal opinion from a nationally
>>>>>>     recognized
>>>>>>            law firm 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
>>>>>>
>>>>>>
>>>>>>          o
>>>>>>
>>>>>>            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 2013 Registrar 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.
>>>>>>
>>>>>>
>>>>>>        1.3 Are 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.
>>>>>>
>>>>>>
>>>>>>        1.4 Should 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.
>>>>>>
>>>>>>
>>>>>>        2.1 Are 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.
>>>>>>
>>>>>>
>>>>>>        3.1 How 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.*
>>>>>>
>>>>>>     This is a critical policy item for such outreach and input.
>>>>>>
>>>>>>
>>>>>>        3.2 If 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.
>>>>>>
>>>>>>
>>>>>>        4.1 Would 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
>>>>>>
>>>>>>
>>>>>>        5.2 Is 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. /
>>>>>>
>>>>>>
>>>>>>        5.3 Should 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,
>>>>>>
>>>>>>     NCSG
>>>>>>
>>>>>>
>>>>>>     DRAFT
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>>     _______________________________________________
>>>>>>     PC-NCSG mailing list
>>>>>>     PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>>>>>>     http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>>>>
>>>>>     _______________________________________________
>>>>>     PC-NCSG mailing list
>>>>>     PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>>>>>     http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>>>
>>>>>
>>>>     <NSCG DRAFT Comments for Review of WHOIS Consensus
>>>>     Proceduresp+ad.doc>_______________________________________________
>>>>     PC-NCSG mailing list
>>>>     PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>>>>     http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>
>>>     _______________________________________________
>>>     PC-NCSG mailing list
>>>     PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>>>     http://mailman.ipjustice.org/listinfo/pc-ncsg
> 
> 
> 
> 
> _______________________________________________
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> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
> 



From avri  Thu Jul 31 20:08:30 2014
From: avri (Avri Doria)
Date: Thu, 31 Jul 2014 19:08:30 +0200
Subject: [PC-NCSG] [] Draft Comments for Whois Proceeding
In-Reply-To: <53DA6B92.3050501@acm.org>
References: <CAH5sThmh9SMgm4qYvDfg_K9rcR=mPT-dyjdvRFgkWDT3vz7pwA@mail.gmail.com>	<53D8E4D0.8080805@acm.org>	<53D8EBB3.7060404@acm.org>	<5762B7A6-B931-4E7A-AD19-7B2D92944023@egyptig.org>	<53DA44C7.7090700@mail.utoronto.ca>	<53DA5C0F.9050401@kathykleiman.com>	<CAH5sTh=k-SvUMPfznLyAAkyD+K=QhCRFu5SYSBJnNMUcSjHPdQ@mail.gmail.com>
	<53DA6B92.3050501@acm.org>
Message-ID: <53DA780E.3020703@acm.org>



PS. In fact most of my edits and comments seem to have been missed in
the document.  For example I had deleted the reference about us being
shocked.  Since when have we been shocked by anything that happens at
ICANN.  I'd be shocked if they had listened and had done the right
thing.  And of what relevance is that to this comment?

I am shocked that in NCSG, we seem to be acting like the Board and Staff
and ignoring peoples' comments.

avri

On 31-Jul-14 18:15, Avri Doria wrote:
> Hi,
> 
> As I mentioned in my first comment, I object to anything that says:
> - multistakeholder participation is unnecessary
> - that comment periods are unnecessary.
> 
> at this point i do not support it as written.
> 
> avri
> 
> 
> On 31-Jul-14 17:53, Rafik Dammak wrote:
>> Hi Kathy,
>>
>> thank you for the changes, we should hear from other member of PC, Maria
>> can make the last call and declare consensus.
>> the deadline for sending the comment is 1 Aug 2014 23:59 UTC, so we need
>> to get endorsement before that. 
>>
>> Best,
>> Rafik 
>>
>>
>> 2014-08-01 0:09 GMT+09:00 Kathy Kleiman <kathy at kathykleiman.com
>> <mailto:kathy at kathykleiman.com>>:
>>
>>     Hi Stephanie,
>>     Tx for adding Avri's comments. I've reviewed all of the changes, and
>>     also added one more to this most recent version. _Newest version
>>     (NCSGEdits3) attached. _
>>     **Due tomorrow**
>>     Best,
>>     Kathy
>>     :
>>>     I also agreed with Avri and inserted a few of her changes, Kathy
>>>     did not get those edits....we need to make sure we have a final
>>>     copy that Rafik can sign, which reflects all the agreed changes. 
>>>     Do you want me to have another edit one last time, to make sure
>>>     that Joy's comments (which were on an earlier draft) and Avri's
>>>     are all in there?
>>>     cheers stephanie
>>>     On 2014-07-31, 9:22, Amr Elsadr wrote:
>>>>     Hi all,
>>>>
>>>>     On Jul 30, 2014, at 2:57 PM, Avri Doria <avri at ACM.ORG>
>>>>     <mailto:avri at ACM.ORG> wrote:
>>>>
>>>>>     hi,
>>>>>
>>>>>     Reviewed the document.
>>>>>
>>>>>     Made a change so it could be a NCSG document.
>>>>     Thanks.
>>>>
>>>>>     There are parts I am uncomfortable with, some of which I deleted
>>>>>     and
>>>>>     some of which I left and still am uncomfortable with.
>>>>>
>>>>>     I do not think we should ever dismiss the Multistakeholder
>>>>>     model.  I do
>>>>>     not wish to find ourselves in the situation of being quoted for
>>>>>     having
>>>>>     suggested that there are times when the model should be
>>>>>     superseded. That
>>>>>     would be a gold mine for some.  I deleted those references.
>>>>     Fully agree. Although I don?t feel that was the intent, it could
>>>>     certainly be perceived that way. No need to bring it up.
>>>>
>>>>>     I am also uncomfortable with saying there are things that don't
>>>>>     need
>>>>>     public comment on.  To just have to take the legal staff view on
>>>>>     things
>>>>>     is dangerous.  What if they say the law does not require
>>>>>     something when
>>>>>     someone knows better.  Better to have a null review.  I have not,
>>>>>     however, removed these as they were an entire section.    I
>>>>>     would like
>>>>>     to see that section reworded or removed before approving the
>>>>>     documents.
>>>>     IMHO, I don?t see the need for a public comment period on every
>>>>     time this policy might be used. If a new set of policies and
>>>>     processes are adopted for handling WHOIS conflicts with privacy
>>>>     laws, then they should be clear enough during implementation to
>>>>     not require public comment, right? Isn?t this the case with all
>>>>     policies? For instance, is there a public comment period every
>>>>     time a new registrar signs a contract with ICANN? Or will there
>>>>     be a public comment period when implementation of the ?thick?
>>>>     WHOIS policy kicks in?
>>>>
>>>>     Another thought is that a public comment period will also
>>>>     lengthen the period during which a registrar will potentially be
>>>>     at risk for non-compliance with local laws. Unless there is an
>>>>     important reason why there should be a public comment for each of
>>>>     the resolution scenarios, then I suggest we support Kathy?s
>>>>     recommendation to not have any.
>>>>
>>>>     Thanks.
>>>>
>>>>     Amr
>>>>
>>>>>     I also removed a bunch of weasel words like 'respectfully'
>>>>>
>>>>>     avri
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>     On 30-Jul-14 14:28, Avri Doria wrote:
>>>>>>     Hi,
>>>>>>
>>>>>>     Started reviewing them, actually Stephanie's comments.  They
>>>>>>     are written
>>>>>>     from an NCUC perspective and need to be approved by them, not us.
>>>>>>
>>>>>>     avri
>>>>>>
>>>>>>
>>>>>>     On 30-Jul-14 11:36, Rafik Dammak wrote:
>>>>>>>     Hi everyone,
>>>>>>>
>>>>>>>     Kathy sent a draft comment to the whois conflict with local
>>>>>>>     laws. we
>>>>>>>     have a tight schedule and we should act quickly.
>>>>>>>     we are responding during the reply period which means the last
>>>>>>>     chance
>>>>>>>     for us to do so.
>>>>>>>     @Maria can you please follow-up with this request?
>>>>>>>
>>>>>>>     Best,
>>>>>>>
>>>>>>>     Rafik
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>>     ---------- Forwarded message ----------
>>>>>>>     From: *Kathy Kleiman* <kathy at kathykleiman.com
>>>>>>>     <mailto:kathy at kathykleiman.com>
>>>>>>>     <mailto:kathy at kathykleiman.com> <mailto:kathy at kathykleiman.com>>
>>>>>>>     Date: 2014-07-30 2:44 GMT+09:00
>>>>>>>     Subject: Draft Comments for Whois Proceeding
>>>>>>>     To: Rafik Dammak <rafik.dammak at gmail.com
>>>>>>>     <mailto:rafik.dammak at gmail.com>
>>>>>>>     <mailto:rafik.dammak at gmail.com>
>>>>>>>     <mailto:rafik.dammak at gmail.com>>,
>>>>>>>     NCSG-DISCUSS at listserv.syr.edu
>>>>>>>     <mailto:NCSG-DISCUSS at listserv.syr.edu>
>>>>>>>     <mailto:NCSG-DISCUSS at listserv.syr.edu>
>>>>>>>     <mailto:NCSG-DISCUSS at listserv.syr.edu>
>>>>>>>
>>>>>>>
>>>>>>>     To Rafik, NCSG Executive Committee and NCSG Membership,
>>>>>>>
>>>>>>>     There is an important, but very quiet comment proceeding that
>>>>>>>     has been
>>>>>>>     taking place this summer. It is the /Review of the ICANN
>>>>>>>     Procedure for
>>>>>>>     Handling WHOIS Conflicts with Privacy Law///at
>>>>>>>     /https://www.icann.org/public-comments/whois-conflicts-procedure-2014-05-22-en/
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>>     Stephanie put out a call for comments, and not seeing any, I
>>>>>>>     drafted
>>>>>>>     these.  It has been dismayeding ever since ICANN adopted its
>>>>>>>     Consensus
>>>>>>>     Procedure for Handling WHOIS Conflicts with Privacy law --
>>>>>>>     because it
>>>>>>>     basically requires that Registrars and Registries have to be
>>>>>>>     sued or
>>>>>>>     receive an official notice of violation before they can ask
>>>>>>>     ICANN for a
>>>>>>>     waiver of the Whois requirements. That always seemed very
>>>>>>>     unfair- that
>>>>>>>     you have to be exposed to allegation of illegal activity in
>>>>>>>     order to
>>>>>>>     protect yourself or your Registrants under your national data
>>>>>>>     protection
>>>>>>>     and privacy laws.
>>>>>>>
>>>>>>>     In the more recent Data Retention Specification, of the 2013
>>>>>>>     RAA, ICANN
>>>>>>>     Staff and Lawyers saw this problem and corrected it -- now
>>>>>>>     Registrars
>>>>>>>     can be much more pro-active in showing ICANN that a certain
>>>>>>>     clause in
>>>>>>>     their contract (e.g., extended data retention) is a clear
>>>>>>>     violation of
>>>>>>>     their national law (e.g., more limited data retention).
>>>>>>>
>>>>>>>     So to this important comment proceeding, I drafted these
>>>>>>>     comments for us
>>>>>>>     to submit. As Reply Comments (during the Reply Period), we are
>>>>>>>     asked to
>>>>>>>     respond to other commenters. That's easy as the European
>>>>>>>     Commission and
>>>>>>>     Registrar Blacknight submitted useful comments.
>>>>>>>
>>>>>>>     Rafik, can we edit, finalize and submit by the deadline on
>>>>>>>     Friday?
>>>>>>>     Comments below and attached. If you have edits, in the
>>>>>>>     interest of time,
>>>>>>>     kindly suggest alternate language. Tx!!
>>>>>>>
>>>>>>>     Best,
>>>>>>>     Kathy
>>>>>>>     --------------------------------------------------------------------------------------------------------
>>>>>>>
>>>>>>>
>>>>>>>     DRAFT 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/
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>>     *Introduction*
>>>>>>>
>>>>>>>     The Noncommercial Stakeholders Group represents noncommercial
>>>>>>>     organizations 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. ICANN Registries and Registrars
>>>>>>>     are no
>>>>>>>     different ? they want and need to abide by their laws.
>>>>>>>
>>>>>>>     Thus, it is 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).
>>>>>>>     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,
>>>>>>>     multiple 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 data protection and
>>>>>>>     privacy laws.
>>>>>>>
>>>>>>>     At the time, we never expected this Consensus Procedure to be
>>>>>>>     an end
>>>>>>>     itself ? but the first step of many steps. It was an ?end? for
>>>>>>>     too long,
>>>>>>>     so we are glad the discussion is reopened and once again we
>>>>>>>     seek to
>>>>>>>     allow Registrars and Registries to be in full compliance with
>>>>>>>     their
>>>>>>>     national data protection and privacy laws ? from the moment
>>>>>>>     they enter
>>>>>>>     into their contracts with ICANN.
>>>>>>>
>>>>>>>     *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 *
>>>>>>>
>>>>>>>     **
>>>>>>>
>>>>>>>     /*[Stephanie, Tamir or Others with Expertise in Canadian and
>>>>>>>     European
>>>>>>>     Data Protection Laws may choose to add something here]. */
>>>>>>>
>>>>>>>     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.
>>>>>>>
>>>>>>>         1.
>>>>>>>
>>>>>>>            Is it impractical for ICANN to require that a
>>>>>>>     contracted party
>>>>>>>            already has litigation 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 that national law. 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:
>>>>>>>
>>>>>>>          o
>>>>>>>
>>>>>>>            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:
>>>>>>>
>>>>>>>          o
>>>>>>>
>>>>>>>            ?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?
>>>>>>>
>>>>>>>     1.1 a Response: 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:
>>>>>>>
>>>>>>>          o
>>>>>>>
>>>>>>>            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;
>>>>>>>
>>>>>>>          o
>>>>>>>
>>>>>>>            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);
>>>>>>>
>>>>>>>
>>>>>>>          o
>>>>>>>
>>>>>>>            Receipt of a written legal opinion from a nationally
>>>>>>>     recognized
>>>>>>>            law firm 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
>>>>>>>
>>>>>>>
>>>>>>>          o
>>>>>>>
>>>>>>>            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 2013 Registrar 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.
>>>>>>>
>>>>>>>
>>>>>>>        1.3 Are 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.
>>>>>>>
>>>>>>>
>>>>>>>        1.4 Should 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.
>>>>>>>
>>>>>>>
>>>>>>>        2.1 Are 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.
>>>>>>>
>>>>>>>
>>>>>>>        3.1 How 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.*
>>>>>>>
>>>>>>>     This is a critical policy item for such outreach and input.
>>>>>>>
>>>>>>>
>>>>>>>        3.2 If 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.
>>>>>>>
>>>>>>>
>>>>>>>        4.1 Would 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
>>>>>>>
>>>>>>>
>>>>>>>        5.2 Is 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. /
>>>>>>>
>>>>>>>
>>>>>>>        5.3 Should 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,
>>>>>>>
>>>>>>>     NCSG
>>>>>>>
>>>>>>>
>>>>>>>     DRAFT
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>>     _______________________________________________
>>>>>>>     PC-NCSG mailing list
>>>>>>>     PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>>>>>>>     http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>>>>>
>>>>>>     _______________________________________________
>>>>>>     PC-NCSG mailing list
>>>>>>     PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>>>>>>     http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>>>>
>>>>>>
>>>>>     <NSCG DRAFT Comments for Review of WHOIS Consensus
>>>>>     Proceduresp+ad.doc>_______________________________________________
>>>>>     PC-NCSG mailing list
>>>>>     PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>>>>>     http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>>
>>>>     _______________________________________________
>>>>     PC-NCSG mailing list
>>>>     PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>>>>     http://mailman.ipjustice.org/listinfo/pc-ncsg
>>
>>
>>
>>
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>
> 
> _______________________________________________
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> http://mailman.ipjustice.org/listinfo/pc-ncsg
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> 



From aelsadr  Thu Jul 31 20:11:49 2014
From: aelsadr (Amr Elsadr)
Date: Thu, 31 Jul 2014 19:11:49 +0200
Subject: [PC-NCSG] [NCSG-Discuss] [urgent] Draft Comments for Whois
	Proceeding
In-Reply-To: <CAH5sThmqh8EvRM7GBHv=JNo1JVncT2GiYvVZ0DUSdn3itoC40Q@mail.gmail.com>
References: <CAH5sThmh9SMgm4qYvDfg_K9rcR=mPT-dyjdvRFgkWDT3vz7pwA@mail.gmail.com>
	<53D8E4D0.8080805@acm.org> <53D8EBB3.7060404@acm.org>
	<5762B7A6-B931-4E7A-AD19-7B2D92944023@egyptig.org>
	<53DA44C7.7090700@mail.utoronto.ca>
	<53DA5C0F.9050401@kathykleiman.com>
	<CAH5sTh=k-SvUMPfznLyAAkyD+K=QhCRFu5SYSBJnNMUcSjHPdQ@mail.gmail.com>
	<53DA6724.20108@mail.utoronto.ca>
	<CAH5sThmqh8EvRM7GBHv=JNo1JVncT2GiYvVZ0DUSdn3itoC40Q@mail.gmail.com>
Message-ID: <F0F3EA82-6CDC-403A-8CFF-02F0643D29EB@egyptig.org>

Hi,

Is this the latest draft? I don?t see Joy?s input regarding the UN?s High Commissioner on Human Rights in here. I also have a problem with this part is ?Response 1.3?:

?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.?

Although I do feel that contracted parties need to comply with local laws (or else they can?t operate), I do not agree on giving a message that the NCSG believes that this is not a matter of multistakeholder decision-making. We?ve asked the MSM within the GNSO to address issues of compliance with data protection and privacy laws in the past (like in the ?thick? WHOIS PDP), and we should encourage ICANN to continue to do this. I suggest we drop this paragraph.

Thanks.

Amr

On Jul 31, 2014, at 6:00 PM, Rafik Dammak <rafik.dammak at gmail.com> wrote:

> thanks Stephanie, I am attaching the latest version 
> 
> Rafik
> 
> 
> 
> 2014-08-01 0:56 GMT+09:00 Stephanie Perrin <stephanie.perrin at mail.utoronto.ca>:
> So I vote yes, and am reviewing the last text Kathy sent right now...
> SP
> 
> On 2014-07-31, 11:53, Rafik Dammak wrote:
>> Hi Kathy,
>> 
>> thank you for the changes, we should hear from other member of PC, Maria can make the last call and declare consensus.
>> the deadline for sending the comment is 1 Aug 2014 23:59 UTC, so we need to get endorsement before that. 
>> 
>> Best,
>> Rafik 
>> 
>> 
>> 2014-08-01 0:09 GMT+09:00 Kathy Kleiman <kathy at kathykleiman.com>:
>> Hi Stephanie,
>> Tx for adding Avri's comments. I've reviewed all of the changes, and also added one more to this most recent version. Newest version (NCSGEdits3) attached. 
>> **Due tomorrow** 
>> Best,
>> Kathy
>> :
>>> I also agreed with Avri and inserted a few of her changes, Kathy did not get those edits....we need to make sure we have a final copy that Rafik can sign, which reflects all                       the agreed changes.  Do you want me to have another edit one last time, to make sure that Joy's comments (which were on an earlier draft) and Avri's are all in there? 
>>> cheers stephanie 
>>> On 2014-07-31, 9:22, Amr Elsadr wrote: 
>>>> Hi all, 
>>>> 
>>>> On Jul 30, 2014, at 2:57 PM, Avri Doria <avri at ACM.ORG> wrote: 
>>>> 
>>>>> hi, 
>>>>> 
>>>>> Reviewed the document. 
>>>>> 
>>>>> Made a change so it could be a NCSG document. 
>>>> Thanks. 
>>>> 
>>>>> There are parts I am uncomfortable with, some of which I deleted and 
>>>>> some of which I left and still am uncomfortable with. 
>>>>> 
>>>>> I do not think we should ever dismiss the Multistakeholder model.  I do 
>>>>> not wish to find ourselves in the situation of being quoted for having 
>>>>> suggested that there are times when the model should be superseded. That 
>>>>> would be a gold mine for some.  I deleted those references. 
>>>> Fully agree. Although I don?t feel that was the intent, it could certainly be perceived that way. No need to bring it up. 
>>>> 
>>>>> I am also uncomfortable with saying there are things that don't need 
>>>>> public comment on.  To just have to take the legal staff view on things 
>>>>> is dangerous.  What if they say the law does not require something when 
>>>>> someone knows better.  Better to have a null review.  I have not, 
>>>>> however, removed these as they were an entire section.    I would like 
>>>>> to see that section reworded or removed before approving the documents. 
>>>> IMHO, I don?t see the need for a public comment period on every time this policy might be used. If a new set of policies and processes are adopted for handling WHOIS conflicts with privacy laws, then they should be clear enough during implementation to not require public comment, right? Isn?t this the case with all policies? For instance, is there a public comment period every time a new registrar signs a contract with ICANN? Or will there be a public comment period when implementation of the ?thick? WHOIS policy kicks in? 
>>>> 
>>>> Another thought is that a public comment period will also lengthen the period during which a registrar will potentially be at risk for non-compliance with local laws. Unless there is an important reason why there should be a public comment for each of the resolution scenarios, then I suggest we support Kathy?s recommendation to not have any. 
>>>> 
>>>> Thanks. 
>>>> 
>>>> Amr 
>>>> 
>>>>> I also removed a bunch of weasel words like 'respectfully' 
>>>>> 
>>>>> avri 
>>>>> 
>>>>> 
>>>>> 
>>>>> 
>>>>> 
>>>>> 
>>>>> On 30-Jul-14 14:28, Avri Doria wrote: 
>>>>>> Hi, 
>>>>>> 
>>>>>> Started reviewing them, actually Stephanie's comments.  They are written 
>>>>>> from an NCUC perspective and need to be approved by them, not us. 
>>>>>> 
>>>>>> avri 
>>>>>> 
>>>>>> 
>>>>>> On 30-Jul-14 11:36, Rafik Dammak wrote: 
>>>>>>> Hi everyone, 
>>>>>>> 
>>>>>>> Kathy sent a draft comment to the whois conflict with local laws. we 
>>>>>>> have a tight schedule and we should act quickly. 
>>>>>>> we are responding during the reply period which means the last chance 
>>>>>>> for us to do so. 
>>>>>>> @Maria can you please follow-up with this request? 
>>>>>>> 
>>>>>>> Best, 
>>>>>>> 
>>>>>>> Rafik 
>>>>>>> 
>>>>>>> 
>>>>>>> 
>>>>>>> ---------- Forwarded message ---------- 
>>>>>>> From: *Kathy Kleiman* <kathy at kathykleiman.com 
>>>>>>> <mailto:kathy at kathykleiman.com>> 
>>>>>>> Date: 2014-07-30 2:44 GMT+09:00 
>>>>>>> Subject: Draft Comments for Whois Proceeding 
>>>>>>> To: Rafik Dammak <rafik.dammak at gmail.com 
>>>>>>> <mailto:rafik.dammak at gmail.com>>, NCSG-DISCUSS at listserv.syr.edu 
>>>>>>> <mailto:NCSG-DISCUSS at listserv.syr.edu> 
>>>>>>> 
>>>>>>> 
>>>>>>> To Rafik, NCSG Executive Committee and NCSG Membership, 
>>>>>>> 
>>>>>>> There is an important, but very quiet comment proceeding that has been 
>>>>>>> taking place this summer. It is the /Review of the ICANN Procedure for 
>>>>>>> Handling WHOIS Conflicts with Privacy Law///at 
>>>>>>> /https://www.icann.org/public-comments/whois-conflicts-procedure-2014-05-22-en/ 
>>>>>>> 
>>>>>>> 
>>>>>>> Stephanie put out a call for comments, and not seeing any, I drafted 
>>>>>>> these.  It has been dismayeding ever since ICANN adopted its Consensus 
>>>>>>> Procedure for Handling WHOIS Conflicts with Privacy law -- because it 
>>>>>>> basically requires that Registrars and Registries have to be sued or 
>>>>>>> receive an official notice of violation before they can ask ICANN for a 
>>>>>>> waiver of the Whois requirements. That always seemed very unfair- that 
>>>>>>> you have to be exposed to allegation of illegal activity in order to 
>>>>>>> protect yourself or your Registrants under your national data protection 
>>>>>>> and privacy laws. 
>>>>>>> 
>>>>>>> In the more recent Data Retention Specification, of the 2013 RAA, ICANN 
>>>>>>> Staff and Lawyers saw this problem and corrected it -- now Registrars 
>>>>>>> can be much more pro-active in showing ICANN that a certain clause in 
>>>>>>> their contract (e.g., extended data retention) is a clear violation of 
>>>>>>> their national law (e.g., more limited data retention). 
>>>>>>> 
>>>>>>> So to this important comment proceeding, I drafted these comments for us 
>>>>>>> to submit. As Reply Comments (during the Reply Period), we are asked to 
>>>>>>> respond to other commenters. That's easy as the European Commission and 
>>>>>>> Registrar Blacknight submitted useful comments. 
>>>>>>> 
>>>>>>> Rafik, can we edit, finalize and submit by the deadline on Friday? 
>>>>>>> Comments below and attached. If you have edits, in the interest of time, 
>>>>>>> kindly suggest alternate language. Tx!! 
>>>>>>> 
>>>>>>> Best, 
>>>>>>> Kathy 
>>>>>>> -------------------------------------------------------------------------------------------------------- 
>>>>>>> 
>>>>>>> DRAFT 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/ 
>>>>>>> 
>>>>>>> 
>>>>>>> *Introduction* 
>>>>>>> 
>>>>>>> The Noncommercial Stakeholders Group represents noncommercial 
>>>>>>> organizations 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. ICANN Registries and Registrars are no 
>>>>>>> different ? they want and need to abide by their laws. 
>>>>>>> 
>>>>>>> Thus, it is 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). 
>>>>>>> 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, multiple 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 data protection and privacy laws. 
>>>>>>> 
>>>>>>> At the time, we never expected this Consensus Procedure to be an end 
>>>>>>> itself ? but the first step of many steps. It was an ?end? for too long, 
>>>>>>> so we are glad the discussion is reopened and once again we seek to 
>>>>>>> allow Registrars and Registries to be in full compliance with their 
>>>>>>> national data protection and privacy laws ? from the moment they enter 
>>>>>>> into their contracts with ICANN. 
>>>>>>> 
>>>>>>> *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 * 
>>>>>>> 
>>>>>>> ** 
>>>>>>> 
>>>>>>> /*[Stephanie, Tamir or Others with Expertise in Canadian and European 
>>>>>>> Data Protection Laws may choose to add something here]. */ 
>>>>>>> 
>>>>>>> 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. 
>>>>>>> 
>>>>>>>     1. 
>>>>>>> 
>>>>>>>        Is it impractical for ICANN to require that a contracted party 
>>>>>>>        already has litigation 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 that national law. 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: 
>>>>>>> 
>>>>>>>      o 
>>>>>>> 
>>>>>>>        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: 
>>>>>>> 
>>>>>>>      o 
>>>>>>> 
>>>>>>>        ?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? 
>>>>>>> 
>>>>>>> 1.1 a Response: 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: 
>>>>>>> 
>>>>>>>      o 
>>>>>>> 
>>>>>>>        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; 
>>>>>>> 
>>>>>>>      o 
>>>>>>> 
>>>>>>>        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); 
>>>>>>> 
>>>>>>> 
>>>>>>>      o 
>>>>>>> 
>>>>>>>        Receipt of a written legal opinion from a nationally recognized 
>>>>>>>        law firm 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 
>>>>>>> 
>>>>>>> 
>>>>>>>      o 
>>>>>>> 
>>>>>>>        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 2013 Registrar 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. 
>>>>>>> 
>>>>>>> 
>>>>>>>    1.3 Are 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. 
>>>>>>> 
>>>>>>> 
>>>>>>>    1.4 Should 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. 
>>>>>>> 
>>>>>>> 
>>>>>>>    2.1 Are 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. 
>>>>>>> 
>>>>>>> 
>>>>>>>    3.1 How 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.* 
>>>>>>> 
>>>>>>> This is a critical policy item for such outreach and input. 
>>>>>>> 
>>>>>>> 
>>>>>>>    3.2 If 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. 
>>>>>>> 
>>>>>>> 
>>>>>>>    4.1 Would 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 
>>>>>>> 
>>>>>>> 
>>>>>>>    5.2 Is 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. / 
>>>>>>> 
>>>>>>> 
>>>>>>>    5.3 Should 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, 
>>>>>>> 
>>>>>>> NCSG 
>>>>>>> 
>>>>>>> 
>>>>>>> DRAFT 
>>>>>>> 
>>>>>>> 
>>>>>>> 
>>>>>>> 
>>>>>>> 
>>>>>>> _______________________________________________ 
>>>>>>> PC-NCSG mailing list 
>>>>>>> PC-NCSG at ipjustice.org 
>>>>>>> http://mailman.ipjustice.org/listinfo/pc-ncsg 
>>>>>>> 
>>>>>> _______________________________________________ 
>>>>>> PC-NCSG mailing list 
>>>>>> PC-NCSG at ipjustice.org 
>>>>>> http://mailman.ipjustice.org/listinfo/pc-ncsg 
>>>>>> 
>>>>>> 
>>>>> <NSCG DRAFT Comments for Review of WHOIS Consensus Proceduresp+ad.doc>_______________________________________________ 
>>>>> PC-NCSG mailing list 
>>>>> PC-NCSG at ipjustice.org 
>>>>> http://mailman.ipjustice.org/listinfo/pc-ncsg 
>>>> 
>>>> _______________________________________________ 
>>>> PC-NCSG mailing list 
>>>> PC-NCSG at ipjustice.org 
>>>> http://mailman.ipjustice.org/listinfo/pc-ncsg 
>> 
>> 
>> 
>> 
>> _______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
> 
> 
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
> 
> 
> <NSCG Draft Comments for Review of WHOIS Consensus Procedure NCSG Edits3 (00690163).DOC>_______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg

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From rafik.dammak  Thu Jul 31 20:15:45 2014
From: rafik.dammak (Rafik Dammak)
Date: Fri, 1 Aug 2014 02:15:45 +0900
Subject: [PC-NCSG] [NCSG-Discuss] [urgent] Draft Comments for Whois
	Proceeding
In-Reply-To: <53DA6B92.3050501@acm.org>
References: <CAH5sThmh9SMgm4qYvDfg_K9rcR=mPT-dyjdvRFgkWDT3vz7pwA@mail.gmail.com>
	<53D8E4D0.8080805@acm.org> <53D8EBB3.7060404@acm.org>
	<5762B7A6-B931-4E7A-AD19-7B2D92944023@egyptig.org>
	<53DA44C7.7090700@mail.utoronto.ca> <53DA5C0F.9050401@kathykleiman.com>
	<CAH5sTh=k-SvUMPfznLyAAkyD+K=QhCRFu5SYSBJnNMUcSjHPdQ@mail.gmail.com>
	<53DA6B92.3050501@acm.org>
Message-ID: <CAH5sThn=6y7iF4jdehC9Tz3sHJ6PUMiTUCxoAtaiXNrk04WuTA@mail.gmail.com>

Hi Avri,

thanks for the comments, can you please reiterate the location of parts you
disagree with (example the page)?
can you please indicate a wording that can be acceptable for you?

Best,

Rafik

2014-08-01 1:15 GMT+09:00 Avri Doria <avri at acm.org>:

> Hi,
>
> As I mentioned in my first comment, I object to anything that says:
> - multistakeholder participation is unnecessary
> - that comment periods are unnecessary.
>
> at this point i do not support it as written.
>
> avri
>
>
> On 31-Jul-14 17:53, Rafik Dammak wrote:
> > Hi Kathy,
> >
> > thank you for the changes, we should hear from other member of PC, Maria
> > can make the last call and declare consensus.
> > the deadline for sending the comment is 1 Aug 2014 23:59 UTC, so we need
> > to get endorsement before that.
> >
> > Best,
> > Rafik
> >
> >
> > 2014-08-01 0:09 GMT+09:00 Kathy Kleiman <kathy at kathykleiman.com
> > <mailto:kathy at kathykleiman.com>>:
> >
> >     Hi Stephanie,
> >     Tx for adding Avri's comments. I've reviewed all of the changes, and
> >     also added one more to this most recent version. _Newest version
> >     (NCSGEdits3) attached. _
> >     **Due tomorrow**
> >     Best,
> >     Kathy
> >     :
> >>     I also agreed with Avri and inserted a few of her changes, Kathy
> >>     did not get those edits....we need to make sure we have a final
> >>     copy that Rafik can sign, which reflects all the agreed changes.
> >>     Do you want me to have another edit one last time, to make sure
> >>     that Joy's comments (which were on an earlier draft) and Avri's
> >>     are all in there?
> >>     cheers stephanie
> >>     On 2014-07-31, 9:22, Amr Elsadr wrote:
> >>>     Hi all,
> >>>
> >>>     On Jul 30, 2014, at 2:57 PM, Avri Doria <avri at ACM.ORG>
> >>>     <mailto:avri at ACM.ORG> wrote:
> >>>
> >>>>     hi,
> >>>>
> >>>>     Reviewed the document.
> >>>>
> >>>>     Made a change so it could be a NCSG document.
> >>>     Thanks.
> >>>
> >>>>     There are parts I am uncomfortable with, some of which I deleted
> >>>>     and
> >>>>     some of which I left and still am uncomfortable with.
> >>>>
> >>>>     I do not think we should ever dismiss the Multistakeholder
> >>>>     model.  I do
> >>>>     not wish to find ourselves in the situation of being quoted for
> >>>>     having
> >>>>     suggested that there are times when the model should be
> >>>>     superseded. That
> >>>>     would be a gold mine for some.  I deleted those references.
> >>>     Fully agree. Although I don?t feel that was the intent, it could
> >>>     certainly be perceived that way. No need to bring it up.
> >>>
> >>>>     I am also uncomfortable with saying there are things that don't
> >>>>     need
> >>>>     public comment on.  To just have to take the legal staff view on
> >>>>     things
> >>>>     is dangerous.  What if they say the law does not require
> >>>>     something when
> >>>>     someone knows better.  Better to have a null review.  I have not,
> >>>>     however, removed these as they were an entire section.    I
> >>>>     would like
> >>>>     to see that section reworded or removed before approving the
> >>>>     documents.
> >>>     IMHO, I don?t see the need for a public comment period on every
> >>>     time this policy might be used. If a new set of policies and
> >>>     processes are adopted for handling WHOIS conflicts with privacy
> >>>     laws, then they should be clear enough during implementation to
> >>>     not require public comment, right? Isn?t this the case with all
> >>>     policies? For instance, is there a public comment period every
> >>>     time a new registrar signs a contract with ICANN? Or will there
> >>>     be a public comment period when implementation of the ?thick?
> >>>     WHOIS policy kicks in?
> >>>
> >>>     Another thought is that a public comment period will also
> >>>     lengthen the period during which a registrar will potentially be
> >>>     at risk for non-compliance with local laws. Unless there is an
> >>>     important reason why there should be a public comment for each of
> >>>     the resolution scenarios, then I suggest we support Kathy?s
> >>>     recommendation to not have any.
> >>>
> >>>     Thanks.
> >>>
> >>>     Amr
> >>>
> >>>>     I also removed a bunch of weasel words like 'respectfully'
> >>>>
> >>>>     avri
> >>>>
> >>>>
> >>>>
> >>>>
> >>>>
> >>>>
> >>>>     On 30-Jul-14 14:28, Avri Doria wrote:
> >>>>>     Hi,
> >>>>>
> >>>>>     Started reviewing them, actually Stephanie's comments.  They
> >>>>>     are written
> >>>>>     from an NCUC perspective and need to be approved by them, not us.
> >>>>>
> >>>>>     avri
> >>>>>
> >>>>>
> >>>>>     On 30-Jul-14 11:36, Rafik Dammak wrote:
> >>>>>>     Hi everyone,
> >>>>>>
> >>>>>>     Kathy sent a draft comment to the whois conflict with local
> >>>>>>     laws. we
> >>>>>>     have a tight schedule and we should act quickly.
> >>>>>>     we are responding during the reply period which means the last
> >>>>>>     chance
> >>>>>>     for us to do so.
> >>>>>>     @Maria can you please follow-up with this request?
> >>>>>>
> >>>>>>     Best,
> >>>>>>
> >>>>>>     Rafik
> >>>>>>
> >>>>>>
> >>>>>>
> >>>>>>     ---------- Forwarded message ----------
> >>>>>>     From: *Kathy Kleiman* <kathy at kathykleiman.com
> >>>>>>     <mailto:kathy at kathykleiman.com>
> >>>>>>     <mailto:kathy at kathykleiman.com> <mailto:kathy at kathykleiman.com
> >>
> >>>>>>     Date: 2014-07-30 2:44 GMT+09:00
> >>>>>>     Subject: Draft Comments for Whois Proceeding
> >>>>>>     To: Rafik Dammak <rafik.dammak at gmail.com
> >>>>>>     <mailto:rafik.dammak at gmail.com>
> >>>>>>     <mailto:rafik.dammak at gmail.com>
> >>>>>>     <mailto:rafik.dammak at gmail.com>>,
> >>>>>>     NCSG-DISCUSS at listserv.syr.edu
> >>>>>>     <mailto:NCSG-DISCUSS at listserv.syr.edu>
> >>>>>>     <mailto:NCSG-DISCUSS at listserv.syr.edu>
> >>>>>>     <mailto:NCSG-DISCUSS at listserv.syr.edu>
> >>>>>>
> >>>>>>
> >>>>>>     To Rafik, NCSG Executive Committee and NCSG Membership,
> >>>>>>
> >>>>>>     There is an important, but very quiet comment proceeding that
> >>>>>>     has been
> >>>>>>     taking place this summer. It is the /Review of the ICANN
> >>>>>>     Procedure for
> >>>>>>     Handling WHOIS Conflicts with Privacy Law///at
> >>>>>>     /
> https://www.icann.org/public-comments/whois-conflicts-procedure-2014-05-22-en/
> >>>>>>
> >>>>>>
> >>>>>>
> >>>>>>     Stephanie put out a call for comments, and not seeing any, I
> >>>>>>     drafted
> >>>>>>     these.  It has been dismayeding ever since ICANN adopted its
> >>>>>>     Consensus
> >>>>>>     Procedure for Handling WHOIS Conflicts with Privacy law --
> >>>>>>     because it
> >>>>>>     basically requires that Registrars and Registries have to be
> >>>>>>     sued or
> >>>>>>     receive an official notice of violation before they can ask
> >>>>>>     ICANN for a
> >>>>>>     waiver of the Whois requirements. That always seemed very
> >>>>>>     unfair- that
> >>>>>>     you have to be exposed to allegation of illegal activity in
> >>>>>>     order to
> >>>>>>     protect yourself or your Registrants under your national data
> >>>>>>     protection
> >>>>>>     and privacy laws.
> >>>>>>
> >>>>>>     In the more recent Data Retention Specification, of the 2013
> >>>>>>     RAA, ICANN
> >>>>>>     Staff and Lawyers saw this problem and corrected it -- now
> >>>>>>     Registrars
> >>>>>>     can be much more pro-active in showing ICANN that a certain
> >>>>>>     clause in
> >>>>>>     their contract (e.g., extended data retention) is a clear
> >>>>>>     violation of
> >>>>>>     their national law (e.g., more limited data retention).
> >>>>>>
> >>>>>>     So to this important comment proceeding, I drafted these
> >>>>>>     comments for us
> >>>>>>     to submit. As Reply Comments (during the Reply Period), we are
> >>>>>>     asked to
> >>>>>>     respond to other commenters. That's easy as the European
> >>>>>>     Commission and
> >>>>>>     Registrar Blacknight submitted useful comments.
> >>>>>>
> >>>>>>     Rafik, can we edit, finalize and submit by the deadline on
> >>>>>>     Friday?
> >>>>>>     Comments below and attached. If you have edits, in the
> >>>>>>     interest of time,
> >>>>>>     kindly suggest alternate language. Tx!!
> >>>>>>
> >>>>>>     Best,
> >>>>>>     Kathy
> >>>>>>
> --------------------------------------------------------------------------------------------------------
> >>>>>>
> >>>>>>
> >>>>>>     DRAFT 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/
> >>>>>>
> >>>>>>
> >>>>>>
> >>>>>>     *Introduction*
> >>>>>>
> >>>>>>     The Noncommercial Stakeholders Group represents noncommercial
> >>>>>>     organizations 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. ICANN Registries and Registrars
> >>>>>>     are no
> >>>>>>     different ? they want and need to abide by their laws.
> >>>>>>
> >>>>>>     Thus, it is 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).
> >>>>>>     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,
> >>>>>>     multiple 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 data protection and
> >>>>>>     privacy laws.
> >>>>>>
> >>>>>>     At the time, we never expected this Consensus Procedure to be
> >>>>>>     an end
> >>>>>>     itself ? but the first step of many steps. It was an ?end? for
> >>>>>>     too long,
> >>>>>>     so we are glad the discussion is reopened and once again we
> >>>>>>     seek to
> >>>>>>     allow Registrars and Registries to be in full compliance with
> >>>>>>     their
> >>>>>>     national data protection and privacy laws ? from the moment
> >>>>>>     they enter
> >>>>>>     into their contracts with ICANN.
> >>>>>>
> >>>>>>     *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 *
> >>>>>>
> >>>>>>     **
> >>>>>>
> >>>>>>     /*[Stephanie, Tamir or Others with Expertise in Canadian and
> >>>>>>     European
> >>>>>>     Data Protection Laws may choose to add something here]. */
> >>>>>>
> >>>>>>     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.
> >>>>>>
> >>>>>>         1.
> >>>>>>
> >>>>>>            Is it impractical for ICANN to require that a
> >>>>>>     contracted party
> >>>>>>            already has litigation 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 that national law. 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:
> >>>>>>
> >>>>>>          o
> >>>>>>
> >>>>>>            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:
> >>>>>>
> >>>>>>          o
> >>>>>>
> >>>>>>            ?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?
> >>>>>>
> >>>>>>     1.1 a Response: 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:
> >>>>>>
> >>>>>>          o
> >>>>>>
> >>>>>>            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;
> >>>>>>
> >>>>>>          o
> >>>>>>
> >>>>>>            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);
> >>>>>>
> >>>>>>
> >>>>>>          o
> >>>>>>
> >>>>>>            Receipt of a written legal opinion from a nationally
> >>>>>>     recognized
> >>>>>>            law firm 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
> >>>>>>
> >>>>>>
> >>>>>>          o
> >>>>>>
> >>>>>>            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 2013 Registrar 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.
> >>>>>>
> >>>>>>
> >>>>>>        1.3 Are 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.
> >>>>>>
> >>>>>>
> >>>>>>        1.4 Should 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.
> >>>>>>
> >>>>>>
> >>>>>>        2.1 Are 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.
> >>>>>>
> >>>>>>
> >>>>>>        3.1 How 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.*
> >>>>>>
> >>>>>>     This is a critical policy item for such outreach and input.
> >>>>>>
> >>>>>>
> >>>>>>        3.2 If 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.
> >>>>>>
> >>>>>>
> >>>>>>        4.1 Would 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
> >>>>>>
> >>>>>>
> >>>>>>        5.2 Is 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. /
> >>>>>>
> >>>>>>
> >>>>>>        5.3 Should 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,
> >>>>>>
> >>>>>>     NCSG
> >>>>>>
> >>>>>>
> >>>>>>     DRAFT
> >>>>>>
> >>>>>>
> >>>>>>
> >>>>>>
> >>>>>>
> >>>>>>     _______________________________________________
> >>>>>>     PC-NCSG mailing list
> >>>>>>     PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
> >>>>>>     http://mailman.ipjustice.org/listinfo/pc-ncsg
> >>>>>>
> >>>>>     _______________________________________________
> >>>>>     PC-NCSG mailing list
> >>>>>     PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
> >>>>>     http://mailman.ipjustice.org/listinfo/pc-ncsg
> >>>>>
> >>>>>
> >>>>     <NSCG DRAFT Comments for Review of WHOIS Consensus
> >>>>     Proceduresp+ad.doc>_______________________________________________
> >>>>     PC-NCSG mailing list
> >>>>     PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
> >>>>     http://mailman.ipjustice.org/listinfo/pc-ncsg
> >>>
> >>>     _______________________________________________
> >>>     PC-NCSG mailing list
> >>>     PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
> >>>     http://mailman.ipjustice.org/listinfo/pc-ncsg
> >
> >
> >
> >
> > _______________________________________________
> > PC-NCSG mailing list
> > PC-NCSG at ipjustice.org
> > http://mailman.ipjustice.org/listinfo/pc-ncsg
> >
>
> _______________________________________________
> PC-NCSG mailing list
> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg
>
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From lanfran  Thu Jul 31 20:19:16 2014
From: lanfran (Sam Lanfranco)
Date: Thu, 31 Jul 2014 13:19:16 -0400
Subject: [PC-NCSG] [NCSG-Discuss] [urgent] Draft Comments for Whois
	Proceeding
In-Reply-To: <53DA6724.20108@mail.utoronto.ca>
References: <CAH5sThmh9SMgm4qYvDfg_K9rcR=mPT-dyjdvRFgkWDT3vz7pwA@mail.gmail.com>	<53D8E4D0.8080805@acm.org>	<53D8EBB3.7060404@acm.org>	<5762B7A6-B931-4E7A-AD19-7B2D92944023@egyptig.org>	<53DA44C7.7090700@mail.utoronto.ca>	<53DA5C0F.9050401@kathykleiman.com>	<CAH5sTh=k-SvUMPfznLyAAkyD+K=QhCRFu5SYSBJnNMUcSjHPdQ@mail.gmail.com>
	<53DA6724.20108@mail.utoronto.ca>
Message-ID: <53DA7A94.2060606@yorku.ca>

It is late in the time left for revising this document so I will just 
offer three short comments without going in and attempting to wordsmith 
inside the document. Food for though!

#1:  Page 1: As part of the opening logic to the submission the text as 
written is:

/In the matter of protection of personal and confidential information, 
which is a very newsworthy issue in the 21st 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./

I would suggest that the submission focus in immediately on ICANN 
practice and evolving policy on the protection of personal and 
confidential information, and not so much Snowden and news stories.

[Possible revision]

/In the matter of protection of personal and confidential information on 
the Internet social norms and public policy are evolving and ICANN 
should be in the forefront of helping define workable practice, as well 
as bringing its contract language in line with public policy.  It is bad 
ICANN business practice to put registrars at odds with national privacy 
policy. It also jeopardizes registrars' consumer trust and puts at risk 
the business of those operating an Internet business. /

#2: [Comment] There is a saying about the Catholic Church, to the effect 
that dealing with social norms it always arrives a little late and out 
of breath. ICANN is acting in a similar way. ICANN could both handle 
this in contract language, and help evolve best and workable practices 
around the protection of personal and confidential information by (a) 
contract language that is consistent with national policy, and (b) 
showing some leadership in what would be good and workable policy here. 
ICANN is neither a King nor a Church bestowing favors on registries and 
registrars. It is a business entering into contractual obligations with 
its direct customers.

#3: [*Typo*] I don't know if the typo is in the Blacknight quote or not, 
but 5.3 should read ...., then [not than] ALL registrars based in 
Germany..."

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, *then* 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.

Sam L.
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From stephanie.perrin  Thu Jul 31 21:27:57 2014
From: stephanie.perrin (Stephanie Perrin)
Date: Thu, 31 Jul 2014 14:27:57 -0400
Subject: [PC-NCSG] [NCSG-Discuss] [urgent] Draft Comments for Whois
	Proceeding
In-Reply-To: <53DA5C0F.9050401@kathykleiman.com>
References: <CAH5sThmh9SMgm4qYvDfg_K9rcR=mPT-dyjdvRFgkWDT3vz7pwA@mail.gmail.com>
	<53D8E4D0.8080805@acm.org> <53D8EBB3.7060404@acm.org>
	<5762B7A6-B931-4E7A-AD19-7B2D92944023@egyptig.org>
	<53DA44C7.7090700@mail.utoronto.ca>
	<53DA5C0F.9050401@kathykleiman.com>
Message-ID: <53DA8AAD.5080109@mail.utoronto.ca>

Ok folks, I think we have a draft (5) which is now ready for final 
approval.  I have taken Kathy's last draft, done a final edit 
(unfortunately I cannot restrain my editing, each time I go through the 
draft, as I find things I forgot to note the last time. So there are a 
few changes.)  In deference to Avri's strong objection to the mention of 
multistakeholderism as being subservient to adherance to law, I did an 
edit of that sentence.
It is unfortunate that Michele used the example of German law (as the 
lander each have their own laws and Commissioners, and I am quite unsure 
whose jurisdiction this issue would fall under) however I left it in.   
I also tried to clarify the paragraph where we discuss consultation on 
decisions regarding exemption.  I hope it is now clear and reflects all 
members views on the matter.
Rafik, I would recommend that when you digitally sign the clean copy you 
save it as NCSG comments on the WHOIS conflicts consultation, as the 
current title is messy (assuming we can now get concensus on moving 
forward and filing this tomorrow).
Kind regards,
Stephanie
On 2014-07-31, 11:09, Kathy Kleiman wrote:
> Hi Stephanie,
> Tx for adding Avri's comments. I've reviewed all of the changes, and 
> also added one more to this most recent version. _Newest version 
> (NCSGEdits3) attached. _
> **Due tomorrow**
> Best,
> Kathy
> :
>> I also agreed with Avri and inserted a few of her changes, Kathy did 
>> not get those edits....we need to make sure we have a final copy that 
>> Rafik can sign, which reflects all the agreed changes.  Do you want 
>> me to have another edit one last time, to make sure that Joy's 
>> comments (which were on an earlier draft) and Avri's are all in there?
>> cheers stephanie
>> On 2014-07-31, 9:22, Amr Elsadr wrote:
>>> Hi all,
>>>
>>> On Jul 30, 2014, at 2:57 PM, Avri Doria <avri at ACM.ORG> wrote:
>>>
>>>> hi,
>>>>
>>>> Reviewed the document.
>>>>
>>>> Made a change so it could be a NCSG document.
>>> Thanks.
>>>
>>>> There are parts I am uncomfortable with, some of which I deleted and
>>>> some of which I left and still am uncomfortable with.
>>>>
>>>> I do not think we should ever dismiss the Multistakeholder model.  
>>>> I do
>>>> not wish to find ourselves in the situation of being quoted for having
>>>> suggested that there are times when the model should be superseded. 
>>>> That
>>>> would be a gold mine for some.  I deleted those references.
>>> Fully agree. Although I don?t feel that was the intent, it could 
>>> certainly be perceived that way. No need to bring it up.
>>>
>>>> I am also uncomfortable with saying there are things that don't need
>>>> public comment on.  To just have to take the legal staff view on 
>>>> things
>>>> is dangerous.  What if they say the law does not require something 
>>>> when
>>>> someone knows better.  Better to have a null review.  I have not,
>>>> however, removed these as they were an entire section.    I would like
>>>> to see that section reworded or removed before approving the 
>>>> documents.
>>> IMHO, I don?t see the need for a public comment period on every time 
>>> this policy might be used. If a new set of policies and processes 
>>> are adopted for handling WHOIS conflicts with privacy laws, then 
>>> they should be clear enough during implementation to not require 
>>> public comment, right? Isn?t this the case with all policies? For 
>>> instance, is there a public comment period every time a new 
>>> registrar signs a contract with ICANN? Or will there be a public 
>>> comment period when implementation of the ?thick? WHOIS policy kicks 
>>> in?
>>>
>>> Another thought is that a public comment period will also lengthen 
>>> the period during which a registrar will potentially be at risk for 
>>> non-compliance with local laws. Unless there is an important reason 
>>> why there should be a public comment for each of the resolution 
>>> scenarios, then I suggest we support Kathy?s recommendation to not 
>>> have any.
>>>
>>> Thanks.
>>>
>>> Amr
>>>
>>>> I also removed a bunch of weasel words like 'respectfully'
>>>>
>>>> avri
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>> On 30-Jul-14 14:28, Avri Doria wrote:
>>>>> Hi,
>>>>>
>>>>> Started reviewing them, actually Stephanie's comments. They are 
>>>>> written
>>>>> from an NCUC perspective and need to be approved by them, not us.
>>>>>
>>>>> avri
>>>>>
>>>>>
>>>>> On 30-Jul-14 11:36, Rafik Dammak wrote:
>>>>>> Hi everyone,
>>>>>>
>>>>>> Kathy sent a draft comment to the whois conflict with local laws. we
>>>>>> have a tight schedule and we should act quickly.
>>>>>> we are responding during the reply period which means the last 
>>>>>> chance
>>>>>> for us to do so.
>>>>>> @Maria can you please follow-up with this request?
>>>>>>
>>>>>> Best,
>>>>>>
>>>>>> Rafik
>>>>>>
>>>>>>
>>>>>>
>>>>>> ---------- Forwarded message ----------
>>>>>> From: *Kathy Kleiman* <kathy at kathykleiman.com
>>>>>> <mailto:kathy at kathykleiman.com>>
>>>>>> Date: 2014-07-30 2:44 GMT+09:00
>>>>>> Subject: Draft Comments for Whois Proceeding
>>>>>> To: Rafik Dammak <rafik.dammak at gmail.com
>>>>>> <mailto:rafik.dammak at gmail.com>>, NCSG-DISCUSS at listserv.syr.edu
>>>>>> <mailto:NCSG-DISCUSS at listserv.syr.edu>
>>>>>>
>>>>>>
>>>>>> To Rafik, NCSG Executive Committee and NCSG Membership,
>>>>>>
>>>>>> There is an important, but very quiet comment proceeding that has 
>>>>>> been
>>>>>> taking place this summer. It is the /Review of the ICANN 
>>>>>> Procedure for
>>>>>> Handling WHOIS Conflicts with Privacy Law///at
>>>>>> /https://www.icann.org/public-comments/whois-conflicts-procedure-2014-05-22-en/ 
>>>>>>
>>>>>>
>>>>>>
>>>>>> Stephanie put out a call for comments, and not seeing any, I drafted
>>>>>> these.  It has been dismayeding ever since ICANN adopted its 
>>>>>> Consensus
>>>>>> Procedure for Handling WHOIS Conflicts with Privacy law -- 
>>>>>> because it
>>>>>> basically requires that Registrars and Registries have to be sued or
>>>>>> receive an official notice of violation before they can ask ICANN 
>>>>>> for a
>>>>>> waiver of the Whois requirements. That always seemed very unfair- 
>>>>>> that
>>>>>> you have to be exposed to allegation of illegal activity in order to
>>>>>> protect yourself or your Registrants under your national data 
>>>>>> protection
>>>>>> and privacy laws.
>>>>>>
>>>>>> In the more recent Data Retention Specification, of the 2013 RAA, 
>>>>>> ICANN
>>>>>> Staff and Lawyers saw this problem and corrected it -- now 
>>>>>> Registrars
>>>>>> can be much more pro-active in showing ICANN that a certain 
>>>>>> clause in
>>>>>> their contract (e.g., extended data retention) is a clear 
>>>>>> violation of
>>>>>> their national law (e.g., more limited data retention).
>>>>>>
>>>>>> So to this important comment proceeding, I drafted these comments 
>>>>>> for us
>>>>>> to submit. As Reply Comments (during the Reply Period), we are 
>>>>>> asked to
>>>>>> respond to other commenters. That's easy as the European 
>>>>>> Commission and
>>>>>> Registrar Blacknight submitted useful comments.
>>>>>>
>>>>>> Rafik, can we edit, finalize and submit by the deadline on Friday?
>>>>>> Comments below and attached. If you have edits, in the interest 
>>>>>> of time,
>>>>>> kindly suggest alternate language. Tx!!
>>>>>>
>>>>>> Best,
>>>>>> Kathy
>>>>>> -------------------------------------------------------------------------------------------------------- 
>>>>>>
>>>>>>
>>>>>> DRAFT 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/ 
>>>>>>
>>>>>>
>>>>>>
>>>>>> *Introduction*
>>>>>>
>>>>>> The Noncommercial Stakeholders Group represents noncommercial
>>>>>> organizations 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. ICANN Registries and Registrars are no
>>>>>> different ? they want and need to abide by their laws.
>>>>>>
>>>>>> Thus, it is 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).
>>>>>> 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, multiple 
>>>>>> 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 data protection and privacy 
>>>>>> laws.
>>>>>>
>>>>>> At the time, we never expected this Consensus Procedure to be an end
>>>>>> itself ? but the first step of many steps. It was an ?end? for 
>>>>>> too long,
>>>>>> so we are glad the discussion is reopened and once again we seek to
>>>>>> allow Registrars and Registries to be in full compliance with their
>>>>>> national data protection and privacy laws ? from the moment they 
>>>>>> enter
>>>>>> into their contracts with ICANN.
>>>>>>
>>>>>> *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 *
>>>>>>
>>>>>> **
>>>>>>
>>>>>> /*[Stephanie, Tamir or Others with Expertise in Canadian and 
>>>>>> European
>>>>>> Data Protection Laws may choose to add something here]. */
>>>>>>
>>>>>> 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.
>>>>>>
>>>>>>     1.
>>>>>>
>>>>>>        Is it impractical for ICANN to require that a contracted 
>>>>>> party
>>>>>>        already has litigation 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 that national law. 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:
>>>>>>
>>>>>>      o
>>>>>>
>>>>>>        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:
>>>>>>
>>>>>>      o
>>>>>>
>>>>>>        ?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?
>>>>>>
>>>>>> 1.1 a Response: 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:
>>>>>>
>>>>>>      o
>>>>>>
>>>>>>        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;
>>>>>>
>>>>>>      o
>>>>>>
>>>>>>        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);
>>>>>>
>>>>>>
>>>>>>      o
>>>>>>
>>>>>>        Receipt of a written legal opinion from a nationally 
>>>>>> recognized
>>>>>>        law firm 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
>>>>>>
>>>>>>
>>>>>>      o
>>>>>>
>>>>>>        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 2013 Registrar 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.
>>>>>>
>>>>>>
>>>>>>    1.3 Are 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.
>>>>>>
>>>>>>
>>>>>>    1.4 Should 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.
>>>>>>
>>>>>>
>>>>>>    2.1 Are 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.
>>>>>>
>>>>>>
>>>>>>    3.1 How 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.*
>>>>>>
>>>>>> This is a critical policy item for such outreach and input.
>>>>>>
>>>>>>
>>>>>>    3.2 If 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.
>>>>>>
>>>>>>
>>>>>>    4.1 Would 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
>>>>>>
>>>>>>
>>>>>>    5.2 Is 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. /
>>>>>>
>>>>>>
>>>>>>    5.3 Should 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,
>>>>>>
>>>>>> NCSG
>>>>>>
>>>>>>
>>>>>> DRAFT
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>> _______________________________________________
>>>>>> PC-NCSG mailing list
>>>>>> PC-NCSG at ipjustice.org
>>>>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>>>>
>>>>> _______________________________________________
>>>>> PC-NCSG mailing list
>>>>> PC-NCSG at ipjustice.org
>>>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>>>
>>>>>
>>>> <NSCG DRAFT Comments for Review of WHOIS Consensus 
>>>> Proceduresp+ad.doc>_______________________________________________
>>>> PC-NCSG mailing list
>>>> PC-NCSG at ipjustice.org
>>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>
>>> _______________________________________________
>>> PC-NCSG mailing list
>>> PC-NCSG at ipjustice.org
>>> http://mailman.ipjustice.org/listinfo/pc-ncsg
>

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From stephanie.perrin  Thu Jul 31 21:37:17 2014
From: stephanie.perrin (Stephanie Perrin)
Date: Thu, 31 Jul 2014 14:37:17 -0400
Subject: [PC-NCSG] [NCSG-Discuss] [urgent] Draft Comments for Whois
	Proceeding
In-Reply-To: <F0F3EA82-6CDC-403A-8CFF-02F0643D29EB@egyptig.org>
References: <CAH5sThmh9SMgm4qYvDfg_K9rcR=mPT-dyjdvRFgkWDT3vz7pwA@mail.gmail.com>
	<53D8E4D0.8080805@acm.org> <53D8EBB3.7060404@acm.org>
	<5762B7A6-B931-4E7A-AD19-7B2D92944023@egyptig.org>
	<53DA44C7.7090700@mail.utoronto.ca>
	<53DA5C0F.9050401@kathykleiman.com>
	<CAH5sTh=k-SvUMPfznLyAAkyD+K=QhCRFu5SYSBJnNMUcSjHPdQ@mail.gmail.com>
	<53DA6724.20108@mail.utoronto.ca>
	<CAH5sThmqh8EvRM7GBHv=JNo1JVncT2GiYvVZ0DUSdn3itoC40Q@mail.gmail.com>
	<F0F3EA82-6CDC-403A-8CFF-02F0643D29EB@egyptig.org>
Message-ID: <53DA8CDD.4060909@mail.utoronto.ca>

I could not find Joy's comments in the text either....the draft I just 
circulated has Avri's concerns noted ( I think I missed the shocked bit, 
we are supposed to be busy drafting something else here in meissen right 
now :-))
If somebody forwards joy's text I would be grateful, having a difficult 
time getting attachments, it appears to be hit or miss...
cheers steph
On 2014-07-31, 13:11, Amr Elsadr wrote:
> Hi,
>
> Is this the latest draft? I don?t see Joy?s input regarding the UN?s 
> High Commissioner on Human Rights in here. I also have a problem with 
> this part is ?Response 1.3?:
>
> /?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.?/
>
> Although I do feel that contracted parties need to comply with local 
> laws (or else they can?t operate), I do not agree on giving a message 
> that the NCSG believes that this is not a matter of multistakeholder 
> decision-making. We?ve asked the MSM within the GNSO to address issues 
> of compliance with data protection and privacy laws in the past (like 
> in the ?thick? WHOIS PDP), and we should encourage ICANN to continue 
> to do this. I suggest we drop this paragraph.
>
> Thanks.
>
> Amr
>
> On Jul 31, 2014, at 6:00 PM, Rafik Dammak <rafik.dammak at gmail.com 
> <mailto:rafik.dammak at gmail.com>> wrote:
>
>> thanks Stephanie, I am attaching the latest version
>>
>> Rafik
>>
>>
>>
>> 2014-08-01 0:56 GMT+09:00 Stephanie Perrin 
>> <stephanie.perrin at mail.utoronto.ca 
>> <mailto:stephanie.perrin at mail.utoronto.ca>>:
>>
>>     So I vote yes, and am reviewing the last text Kathy sent right now...
>>     SP
>>
>>     On 2014-07-31, 11:53, Rafik Dammak wrote:
>>>     Hi Kathy,
>>>
>>>     thank you for the changes, we should hear from other member of
>>>     PC, Maria can make the last call and declare consensus.
>>>     the deadline for sending the comment is 1 Aug 2014 23:59 UTC, so
>>>     we need to get endorsement before that.
>>>
>>>     Best,
>>>     Rafik
>>>
>>>
>>>     2014-08-01 0:09 GMT+09:00 Kathy Kleiman <kathy at kathykleiman.com
>>>     <mailto:kathy at kathykleiman.com>>:
>>>
>>>         Hi Stephanie,
>>>         Tx for adding Avri's comments. I've reviewed all of the
>>>         changes, and also added one more to this most recent
>>>         version. _Newest version (NCSGEdits3) attached. _
>>>         **Due tomorrow**
>>>         Best,
>>>         Kathy
>>>         :
>>>>         I also agreed with Avri and inserted a few of her changes,
>>>>         Kathy did not get those edits....we need to make sure we
>>>>         have a final copy that Rafik can sign, which reflects all
>>>>         the agreed changes.  Do you want me to have another edit
>>>>         one last time, to make sure that Joy's comments (which were
>>>>         on an earlier draft) and Avri's are all in there?
>>>>         cheers stephanie
>>>>         On 2014-07-31, 9:22, Amr Elsadr wrote:
>>>>>         Hi all,
>>>>>
>>>>>         On Jul 30, 2014, at 2:57 PM, Avri Doria <avri at ACM.ORG>
>>>>>         <mailto:avri at ACM.ORG> wrote:
>>>>>
>>>>>>         hi,
>>>>>>
>>>>>>         Reviewed the document.
>>>>>>
>>>>>>         Made a change so it could be a NCSG document.
>>>>>         Thanks.
>>>>>
>>>>>>         There are parts I am uncomfortable with, some of which I
>>>>>>         deleted and
>>>>>>         some of which I left and still am uncomfortable with.
>>>>>>
>>>>>>         I do not think we should ever dismiss the
>>>>>>         Multistakeholder model.  I do
>>>>>>         not wish to find ourselves in the situation of being
>>>>>>         quoted for having
>>>>>>         suggested that there are times when the model should be
>>>>>>         superseded. That
>>>>>>         would be a gold mine for some.  I deleted those references.
>>>>>         Fully agree. Although I don?t feel that was the intent, it
>>>>>         could certainly be perceived that way. No need to bring it
>>>>>         up.
>>>>>
>>>>>>         I am also uncomfortable with saying there are things that
>>>>>>         don't need
>>>>>>         public comment on.  To just have to take the legal staff
>>>>>>         view on things
>>>>>>         is dangerous.  What if they say the law does not require
>>>>>>         something when
>>>>>>         someone knows better. Better to have a null review.  I
>>>>>>         have not,
>>>>>>         however, removed these as they were an entire section.   
>>>>>>         I would like
>>>>>>         to see that section reworded or removed before approving
>>>>>>         the documents.
>>>>>         IMHO, I don?t see the need for a public comment period on
>>>>>         every time this policy might be used. If a new set of
>>>>>         policies and processes are adopted for handling WHOIS
>>>>>         conflicts with privacy laws, then they should be clear
>>>>>         enough during implementation to not require public
>>>>>         comment, right? Isn?t this the case with all policies? For
>>>>>         instance, is there a public comment period every time a
>>>>>         new registrar signs a contract with ICANN? Or will there
>>>>>         be a public comment period when implementation of the
>>>>>         ?thick? WHOIS policy kicks in?
>>>>>
>>>>>         Another thought is that a public comment period will also
>>>>>         lengthen the period during which a registrar will
>>>>>         potentially be at risk for non-compliance with local laws.
>>>>>         Unless there is an important reason why there should be a
>>>>>         public comment for each of the resolution scenarios, then
>>>>>         I suggest we support Kathy?s recommendation to not have any.
>>>>>
>>>>>         Thanks.
>>>>>
>>>>>         Amr
>>>>>
>>>>>>         I also removed a bunch of weasel words like 'respectfully'
>>>>>>
>>>>>>         avri
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>>         On 30-Jul-14 14:28, Avri Doria wrote:
>>>>>>>         Hi,
>>>>>>>
>>>>>>>         Started reviewing them, actually Stephanie's comments. 
>>>>>>>         They are written
>>>>>>>         from an NCUC perspective and need to be approved by
>>>>>>>         them, not us.
>>>>>>>
>>>>>>>         avri
>>>>>>>
>>>>>>>
>>>>>>>         On 30-Jul-14 11:36, Rafik Dammak wrote:
>>>>>>>>         Hi everyone,
>>>>>>>>
>>>>>>>>         Kathy sent a draft comment to the whois conflict with
>>>>>>>>         local laws. we
>>>>>>>>         have a tight schedule and we should act quickly.
>>>>>>>>         we are responding during the reply period which means
>>>>>>>>         the last chance
>>>>>>>>         for us to do so.
>>>>>>>>         @Maria can you please follow-up with this request?
>>>>>>>>
>>>>>>>>         Best,
>>>>>>>>
>>>>>>>>         Rafik
>>>>>>>>
>>>>>>>>
>>>>>>>>
>>>>>>>>         ---------- Forwarded message ----------
>>>>>>>>         From: *Kathy Kleiman* <kathy at kathykleiman.com
>>>>>>>>         <mailto:kathy at kathykleiman.com>
>>>>>>>>         <mailto:kathy at kathykleiman.com>
>>>>>>>>         <mailto:kathy at kathykleiman.com>>
>>>>>>>>         Date: 2014-07-30 2:44 GMT+09:00
>>>>>>>>         Subject: Draft Comments for Whois Proceeding
>>>>>>>>         To: Rafik Dammak <rafik.dammak at gmail.com
>>>>>>>>         <mailto:rafik.dammak at gmail.com>
>>>>>>>>         <mailto:rafik.dammak at gmail.com>
>>>>>>>>         <mailto:rafik.dammak at gmail.com>>,
>>>>>>>>         NCSG-DISCUSS at listserv.syr.edu
>>>>>>>>         <mailto:NCSG-DISCUSS at listserv.syr.edu>
>>>>>>>>         <mailto:NCSG-DISCUSS at listserv.syr.edu>
>>>>>>>>         <mailto:NCSG-DISCUSS at listserv.syr.edu>
>>>>>>>>
>>>>>>>>
>>>>>>>>         To Rafik, NCSG Executive Committee and NCSG Membership,
>>>>>>>>
>>>>>>>>         There is an important, but very quiet comment
>>>>>>>>         proceeding that has been
>>>>>>>>         taking place this summer. It is the /Review of the
>>>>>>>>         ICANN Procedure for
>>>>>>>>         Handling WHOIS Conflicts with Privacy Law///at
>>>>>>>>         /https://www.icann.org/public-comments/whois-conflicts-procedure-2014-05-22-en/
>>>>>>>>
>>>>>>>>
>>>>>>>>
>>>>>>>>         Stephanie put out a call for comments, and not seeing
>>>>>>>>         any, I drafted
>>>>>>>>         these.  It has been dismayeding ever since ICANN
>>>>>>>>         adopted its Consensus
>>>>>>>>         Procedure for Handling WHOIS Conflicts with Privacy law
>>>>>>>>         -- because it
>>>>>>>>         basically requires that Registrars and Registries have
>>>>>>>>         to be sued or
>>>>>>>>         receive an official notice of violation before they can
>>>>>>>>         ask ICANN for a
>>>>>>>>         waiver of the Whois requirements. That always seemed
>>>>>>>>         very unfair- that
>>>>>>>>         you have to be exposed to allegation of illegal
>>>>>>>>         activity in order to
>>>>>>>>         protect yourself or your Registrants under your
>>>>>>>>         national data protection
>>>>>>>>         and privacy laws.
>>>>>>>>
>>>>>>>>         In the more recent Data Retention Specification, of the
>>>>>>>>         2013 RAA, ICANN
>>>>>>>>         Staff and Lawyers saw this problem and corrected it --
>>>>>>>>         now Registrars
>>>>>>>>         can be much more pro-active in showing ICANN that a
>>>>>>>>         certain clause in
>>>>>>>>         their contract (e.g., extended data retention) is a
>>>>>>>>         clear violation of
>>>>>>>>         their national law (e.g., more limited data retention).
>>>>>>>>
>>>>>>>>         So to this important comment proceeding, I drafted
>>>>>>>>         these comments for us
>>>>>>>>         to submit. As Reply Comments (during the Reply Period),
>>>>>>>>         we are asked to
>>>>>>>>         respond to other commenters. That's easy as the
>>>>>>>>         European Commission and
>>>>>>>>         Registrar Blacknight submitted useful comments.
>>>>>>>>
>>>>>>>>         Rafik, can we edit, finalize and submit by the deadline
>>>>>>>>         on Friday?
>>>>>>>>         Comments below and attached. If you have edits, in the
>>>>>>>>         interest of time,
>>>>>>>>         kindly suggest alternate language. Tx!!
>>>>>>>>
>>>>>>>>         Best,
>>>>>>>>         Kathy
>>>>>>>>         --------------------------------------------------------------------------------------------------------
>>>>>>>>
>>>>>>>>
>>>>>>>>         DRAFT 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/
>>>>>>>>
>>>>>>>>
>>>>>>>>
>>>>>>>>         *Introduction*
>>>>>>>>
>>>>>>>>         The Noncommercial Stakeholders Group represents
>>>>>>>>         noncommercial
>>>>>>>>         organizations 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. ICANN Registries and
>>>>>>>>         Registrars are no
>>>>>>>>         different ? they want and need to abide by their laws.
>>>>>>>>
>>>>>>>>         Thus, it is 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).
>>>>>>>>         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,
>>>>>>>>         multiple 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 data protection and
>>>>>>>>         privacy laws.
>>>>>>>>
>>>>>>>>         At the time, we never expected this Consensus Procedure
>>>>>>>>         to be an end
>>>>>>>>         itself ? but the first step of many steps. It was an
>>>>>>>>         ?end? for too long,
>>>>>>>>         so we are glad the discussion is reopened and once
>>>>>>>>         again we seek to
>>>>>>>>         allow Registrars and Registries to be in full
>>>>>>>>         compliance with their
>>>>>>>>         national data protection and privacy laws ? from the
>>>>>>>>         moment they enter
>>>>>>>>         into their contracts with ICANN.
>>>>>>>>
>>>>>>>>         *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 *
>>>>>>>>
>>>>>>>>         **
>>>>>>>>
>>>>>>>>         /*[Stephanie, Tamir or Others with Expertise in
>>>>>>>>         Canadian and European
>>>>>>>>         Data Protection Laws may choose to add something here]. */
>>>>>>>>
>>>>>>>>         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.
>>>>>>>>
>>>>>>>>             1.
>>>>>>>>
>>>>>>>>                Is it impractical for ICANN to require that a
>>>>>>>>         contracted party
>>>>>>>>                already has litigation 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 that national law. 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:
>>>>>>>>
>>>>>>>>              o
>>>>>>>>
>>>>>>>>                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:
>>>>>>>>
>>>>>>>>              o
>>>>>>>>
>>>>>>>>                ?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?
>>>>>>>>
>>>>>>>>         1.1 a Response: 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:
>>>>>>>>
>>>>>>>>              o
>>>>>>>>
>>>>>>>>                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;
>>>>>>>>
>>>>>>>>              o
>>>>>>>>
>>>>>>>>                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);
>>>>>>>>
>>>>>>>>
>>>>>>>>              o
>>>>>>>>
>>>>>>>>                Receipt of a written legal opinion from a
>>>>>>>>         nationally recognized
>>>>>>>>                law firm 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
>>>>>>>>
>>>>>>>>
>>>>>>>>              o
>>>>>>>>
>>>>>>>>                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 2013 Registrar
>>>>>>>>         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.
>>>>>>>>
>>>>>>>>
>>>>>>>>            1.3 Are 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.
>>>>>>>>
>>>>>>>>
>>>>>>>>            1.4 Should 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.
>>>>>>>>
>>>>>>>>
>>>>>>>>            2.1 Are 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.
>>>>>>>>
>>>>>>>>
>>>>>>>>            3.1 How 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.*
>>>>>>>>
>>>>>>>>         This is a critical policy item for such outreach and
>>>>>>>>         input.
>>>>>>>>
>>>>>>>>
>>>>>>>>            3.2 If 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.
>>>>>>>>
>>>>>>>>
>>>>>>>>            4.1 Would 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
>>>>>>>>
>>>>>>>>
>>>>>>>>            5.2 Is 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. /
>>>>>>>>
>>>>>>>>
>>>>>>>>            5.3 Should 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,
>>>>>>>>
>>>>>>>>         NCSG
>>>>>>>>
>>>>>>>>
>>>>>>>>         DRAFT
>>>>>>>>
>>>>>>>>
>>>>>>>>
>>>>>>>>
>>>>>>>>
>>>>>>>>         _______________________________________________
>>>>>>>>         PC-NCSG mailing list
>>>>>>>>         PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>>>>>>>>         http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>>>>>>
>>>>>>>         _______________________________________________
>>>>>>>         PC-NCSG mailing list
>>>>>>>         PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>>>>>>>         http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>>>>>
>>>>>>>
>>>>>>         <NSCG DRAFT Comments for Review of WHOIS Consensus
>>>>>>         Proceduresp+ad.doc>_______________________________________________
>>>>>>
>>>>>>         PC-NCSG mailing list
>>>>>>         PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>>>>>>         http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>>>
>>>>>         _______________________________________________
>>>>>         PC-NCSG mailing list
>>>>>         PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>>>>>         http://mailman.ipjustice.org/listinfo/pc-ncsg
>>>
>>>
>>>
>>>
>>>     _______________________________________________
>>>     PC-NCSG mailing list
>>>     PC-NCSG at ipjustice.org  <mailto:PC-NCSG at ipjustice.org>
>>>     http://mailman.ipjustice.org/listinfo/pc-ncsg
>>
>>
>>     _______________________________________________
>>     PC-NCSG mailing list
>>     PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>>     http://mailman.ipjustice.org/listinfo/pc-ncsg
>>
>>
>> <NSCG Draft Comments for Review of WHOIS Consensus Procedure NCSG 
>> Edits3 (00690163).DOC>_______________________________________________
>> PC-NCSG mailing list
>> PC-NCSG at ipjustice.org <mailto:PC-NCSG at ipjustice.org>
>> http://mailman.ipjustice.org/listinfo/pc-ncsg
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From joy  Thu Jul 31 23:23:39 2014
From: joy (joy)
Date: Fri, 01 Aug 2014 08:23:39 +1200
Subject: [PC-NCSG] [NCSG-Discuss] [urgent] Draft Comments for Whois
	Proceeding
In-Reply-To: <53DA8AAD.5080109@mail.utoronto.ca>
References: <CAH5sThmh9SMgm4qYvDfg_K9rcR=mPT-dyjdvRFgkWDT3vz7pwA@mail.gmail.com>	<53D8E4D0.8080805@acm.org>
	<53D8EBB3.7060404@acm.org>	<5762B7A6-B931-4E7A-AD19-7B2D92944023@egyptig.org>	<53DA44C7.7090700@mail.utoronto.ca>	<53DA5C0F.9050401@kathykleiman.com>
	<53DA8AAD.5080109@mail.utoronto.ca>
Message-ID: <53DAA5CB.6080603@apc.org>

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