[PC-NCSG] Fwd: Re: [IAG-WHOIS conflicts] Response to final report

[Stephanie Perrin]

For your information....ALAC also had trouble getting their comments in 
on time for IAG.
cheers Stephanie

-------- Forwarded Message --------
Subject: 	Re: [IAG-WHOIS conflicts] Response to final report
Date: 	Sun, 22 Nov 2015 20:51:13 +0100
From: 	Christopher Wilkinson <cw at christopherwilkinson.eu>
To: 	Holly Raiche <h.raiche at internode.on.net>
CC: 	Carlton Samuels <carlton.samuels at gmail.com>, Alan Greenberg 
<alan.greenberg at mcgill.ca>, Stephanie Perrin 
<stephanie.perrin at mail.utoronto.ca>



Thankyou, Holly,

CW


On 22 Nov 2015, at 20:38, Holly Raiche <h.raiche at internode.on.net 
<mailto:h.raiche at internode.on.net>> wrote:

> The following is an informal statement that represents the view of 
> many of the ALAC members.   We simply did not have the bandwidth or 
> time to formally approve this statement, so it cannot be considered as 
> a formal ALAC response.  That said, this issue has been discussed and 
> does have support within ALAC.  Again, my apologies in not managing to 
> have the time for this to go through formal ALAC  processes.  I?m 
> happy to take any questions on its content.
> Holly
>
> The ALAC has deep concerns with the Implementation Advisory Group?s 
> proposed alternative ?triggers? and supports the ?Minority Views? of 
> Stephanie Perrin and Christopher Wilkinson.
> The original goal of this policy (concluded by the GNSO in November 
> 2005) was to develop procedures that could reconcile mandatory laws on 
> privacy with the requirements on registries and registrars under 
> contract with ICANN for the collection, display and distribution of 
> WHOIS personal information.
> Unfortunately, the Task Force charged with implementing the policy 
> adopted a ?solution? that is virtually unworkable and has never been 
> used.  Under the ?solution? the registrar/registry should notify ICANN 
> within 30 days of situations (an inquiry, litigation or threat of 
> sanctions) when the registry/registrar can demonstrate that it cannot 
> comply with WHOIS obligations due to local or national privacy laws.
> There are two fundamental reasons why the policy is unworkable. The 
> first is the bizarre outcome that registrars and registries must seek 
> ICANN permission to comply with their applicable local laws.  The 
> second obvious flaw is that it means registrars/registries must wait 
> until there is an ?inquiry or investigation etc of some sort before 
> the process can be triggered.
> This Implementation Working Group (IWG) was formed to ? consider the 
> need for changes to how the procedure is invoked and used?.  The 
> difficulty with that approach is that it does not address the basic 
> flaws in the processes proposed: it still assumes that ICANN has a 
> role in determining registry/registrar compliance with applicable 
> local law and it still believes that solution lies in legal events 
> that ?trigger? a resolution process.
> The ISG report proposes an ?Alternative Trigger? (Appendix 1) or a 
> Written Legal Opinion (Dual Trigger) (Appendix 2).  The Alternative 
> Trigger process is far simpler and preferable. Indeed, the language 
> suggests that the process might be used to reconcile ICANN WHOIS 
> requirements with relevant privacy law more generally, and not on just 
> on a case by case basis.
> There are, however, difficulties with the Alternative Trigger 
> proposal, as follows.
>
>   * It relies on advice from law firms (whose advice would not bind
>     the relevant privacy agency), or on agencies themselves (who are
>     most often reluctant to provide such advice)
>   * The onus is on individual registries/registrars to invoke the
>     process. There are many smaller registries/registrars that would
>     not have the resources to fund such advice, particularly if it is
>     needed on a case by case basis
>   * Because laws/regulations on the handling of personal information
>     vary from area to area (whether national or regional), different
>     registries/registrars will be bound by different sets of
>     requirements ? in order to comply with the same contractual terms
>   * It is also not clear why GAC advice is included in both proposed
>     ?triggers?. The expertise of individual GAC members relates to
>     ICANN?s remit: domain names, IP addresses and protocols.
>
> The ALAC supports both of the proposals made by Christopher Wilkinson 
> (Appendix 4) which address the issues raised .  The first is ? at the 
> least ? a ?block exemption? for all registries/registrars in the 
> relevant jurisdiction.  This would eliminate the ?case by case? 
> approach to the issue and provide certainty for all 
> registries/registrars (whether large or small) in that area.
> A better approach is his call for a ?best practice? policy on the 
> collection, retention and revealing of WHOIS information.  This would 
> ensure that, regardless of the jurisdiction of the 
> registrar/registries ? and registrants ? all would receive the same 
> privacy protection.
>
> Holly Raiche
> Carlton Samuels
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