[PC-NCSG] [NCSG-Discuss] [urgent] Draft Comments for Whois Proceeding
Rafik Dammak
rafik.dammak
Thu Jul 31 20:15:45 EEST 2014
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 superseded.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
> >
> >
> >
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> >
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