[PC-NCSG] [urgent] Draft Comments for Whois Proceeding

[Rafik Dammak]

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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