[NCSG-PC] Option 1

[Tomslin Samme-Nlar]

Hi Milton

My apologies if I inaccurately  characterised the debate. My understanding
was that Option 1 includes - not supporting guidance by the EPDP. But like
you said, I might be wrong.

Can I ask those arguing for Option 1 to  help clarify this please?

Regards
Tomslin

On Thu, 6 May 2021, 12:01 pm Mueller, Milton L, <milton at gatech.edu> wrote:

> Tomslin
>
> You and the PC are correct to intervene here!
>
>
>
> But you are also guilty of a seriously inaccurate characterization of the
> debate.
>
> There is no evidence for your claim that Option 1 has the most support.
> Look back over the emails of the past few days. Kathy and Stephanie have
> supported it. Manju and I have opposed it (in that we both have expressed
> support for guidance.) That’s it.
>
>
>
> You will find a few other statements for “no differentiation” but as I
> have shown Option 1 does not prevent differentiation, it simply allows
> Contracted Parties to do it. Many members are still confused about this.
>
>
>
> So I am going to have to demand a restatement of the option before us:
>
>
>
> Guidance or No guidance? I will not accept any decision that is not based
> on people expressing one of those two, because it is not a real position.
>
>
>
> --MM
>
>
>
>
>
>
>
> *From:* NCSG-Discuss <NCSG-DISCUSS at LISTSERV.SYR.EDU> *On Behalf Of *Tomslin
> Samme-Nlar
> *Sent:* Wednesday, May 5, 2021 9:22 PM
> *To:* NCSG-DISCUSS at LISTSERV.SYR.EDU
> *Subject:* Re: Option 1
>
>
>
> Dear members,
>
>
>
> First, I want to thank the EPDP members and everyone who is contributing
> to this debate. Much appreciated.
>
>
>
> While following the debate and reading the arguments assiduously, the
> question that kept coming to mind as policy chair is if there is a due date
> for us to have decided what the NCSG position is.
>
>
>
> I note that in the EPDP WG communication and as indicated by Stephanie in
> a separate email yesterday, the EPDP Team is to review updated version of
> the legal v. natural write up and indicate which aspects they can't live
> with by Friday 7 May. I suppose this means we need to provide an agreed
> guidance on an NCSG position to our EPDP team reps by this date, which
> leaves us with only one day to conclude on this.
>
>
>
> From the discussion so far, *Option 1- the Status Quo* seem to have the
> most support from membership. Can anyone else who is against this option
> being the NCSG position please state their objection by 13:00 UTC 6 May?
> This should give us some time before Friday to agree. Absent a significant
> number of objections, *Option 1 - the Status Quo* will be the NCSG
> position on this matter.
>
>
>
> Cheers,
> Tomslin
>
> Policy Chair
>
>
>
>
> On Thu., 6 May 2021, 08:31 Stephanie E Perrin, <
> stephanie at digitaldiscretion.ca> wrote:
>
> I agree that the RrSg work on this is useful and to be encouraged, but I
> think the only way to keep it from becoming mandatory, either through
> policy or through inclusion in their contracts or through the upcoming
> accuracy pdp is to make it  voluntary RrSg advice, not EPDP policy or
> guidance.  It is well within their mandate to publish it themselves and you
> can see from the comments on the google document, the pressure to make
> options MUST instead of May Wish to......
>
> cheers Stephanie
>
> PS there is also a big question of co-controller liability on the part of
> ICANN, for the accuracy and reliability of this guidance
>
> On 2021-05-05 2:42 a.m., 陳曼茹 Manju Chen wrote:
>
> Hi all,
>
>
>
> I agree with Stephanie and Kathy that we have to 'hold the line', but my
> idea of 'the line' is a bit different than the simple 'status quo'.
>
>
>
> In my opinion, the line we should definitely hold is 'to keep the guidance
> from becoming a requirement'. So we maintain that 'registrars should be
> able to choose to differentiate or not' but develop guidance for if they
> wish to do so. Basically Milton's scenario 3.
>
>
>
> I'd also like to point out that according to Volker's statement on behalf
> of RrSG, they are not against developing guidance either. In fact, the RrSG
> has provided a table as their proposed guidance on this matter. I would
> encourage us to work with CPs on refining the table and make sure the final
> guidance resembles RrSG's table instead of the detailed instructions
> currently proposed by the surveillance caucus.
>
>
>
> Best,
>
> Manju
>
>
>
> On Wed, May 5, 2021 at 11:39 AM Mueller, Milton L <milton at gatech.edu>
> wrote:
>
> Kathy, Stephanie, and NCSG members:
>
>
>
> Personally, I would have no problem falling in line with your position.
> But there are two fatal flaws that you need to address. First, you are
> describing only what _*we*_ want and not thinking at all about how you
> get consensus. Second, your description of what we want does NOT correspond
> to what will actually happen if we “hold the line.” As much as I would like
> to promote harmony and unity among NCSG EPDP representatives, I don’t think
> you have thought things through.
>
>
>
> I know perfectly well that we don’t want any differentiation and that the
> registrars don’t either. What you are overlooking is that the other half of
> the EPDP does want it, and the board will see the EPDP as deadlocked. So
> Option 1 will make you feel very self-righteous in the short term, but what
> happens next? You are, as I will show, leading us down a blind alley.
>
>
>
> I can think of 3 scenarios we can discuss as a basis for action.
>
>
>
> Scenario 1.
>
> We “hold the line,” and we revert to Phase 1 recommendations unchanged.
> There is _*no guidance*_. The other half of the EPDP just gives up and
> accepts it. This result is not bad, I admit, if that last bit happens.
>
> But what are the Phase 1 recommendations? You have misrepresented the
> “status quo” as not differentiating legal and natural. WRONG. What will
> happen under this option is that any registrar or registry can choose to
> differentiate in any way they like. And there will be no guidance that you
> can appeal to if they do it wrong. You say you don’t want registrars asking
> users whether they are legal or natural. Well, sorry, that can happen under
> your Option 1. A deadlock on EPDP means that differentiation is neither
> prohibited or required, it is up to the contracted parties. Many registrars
> won’t do it, but some will. Registries could do it, too. This is the “let
> the market decide” option. Stephanie has become a libertarian, I guess.
>
>
>
> Scenario 2
>
> Scenario 1 assumes the other side accepts defeat. But what if we “hold the
> line,” and the other half of the EPDP doesn’t accept it? The European
> Commission, the US justice department, the GAC, SSAC, and of course the
> IPC/BC and ALAC join a strong chorus telling the board “something must be
> done.” The Board is influenced, and refuses to accept the recommendation,
> as it has done with the SSAD (which the same group of stakeholders
> opposed). We have seen the Board cave to GAC and governmental demands again
> and again, the latest example being “curative rights” for IGO acronyms,
> which the GNSO never approved. Worse, the EC may modify its NIS2
> legislation to require ICANN to differentiate. The US congress could
> intervene. The issue festers for another three – five years. Several
> powerful players start attacking the multistakeholder process. Maybe ICANN
> corrupts its process once again.
>
>
>
> Scenario 3
>
> Scenario 3 is that we don’t require differentiation of legal persons, but
> we develop consensus guidance on how contracted parties should do it if
> they choose to do it. This is the most likely scenario, and it’s one that
> your position paper completely ignores. If you do want guidance, the
> approach to guidance that I have suggested is best, because it is a very
> lightweight process of self-identification by registrants. By offering some
> differentiation it may defuse the opposition of the other stakeholders. On
> the other hand Stephanie’s complicated, expensive and power-surrendering
> approach is not the kind of guidance we want.
>
>
>
> By now it should be clear to anyone who’s read this far that Scenario 1 is
> not as wonderful as you say and may not be possible. The EPDP is already
> deeply invested in developing guidance about how registrars should and
> should not differentiate. We have been working on it for weeks. Unless
> something changes radically in the next week, we will actually produce some
> guidance about differentiation. So, I suggest that we confine our debate to
> Scenario 2: the developing of nonbinding guidance. I suggest again that
> allowing registrants to choose to identify their registration as one of a
> legal person, with their data published or automatically available via
> SSAD, creates a path to consensus and to resolving the issue, whereas your
> preferred path does not.
>
>
>
> To conclude, I call your attention to a pathology that is paralyzing
> nearly all of ICANN’s working groups. Defining your position and “holding
> the line” is a strategy that all the SGs and ACs seem to adopt now. It
> turns all these deliberations into a bunch of people re-stating their
> position again and again for 3-4 years, re-litigating issues endlessly,
> avoiding any serious middle ground. No thought is given to finding a
> solution that achieves a critical mass of consensus.
>
>
>
> Anyone who wants to be a serious participant in developing the NCSG’s
> position in EPDP has to answer a very basic question:
>
>
>
> How does this end?
>
> What is your scenario for achieving the level of agreement needed to pass
> a policy?
>
>
>
> Looking forward to your response.
>
>
>
> Dr. Milton L Mueller
>
> Georgia Institute of Technology
>
> School of Public Policy
>
> Internet Governance Project <https://internetgovernance.org/>
>
>
>
>
>
>
>
> *From:* NCSG-Discuss <NCSG-DISCUSS at LISTSERV.SYR.EDU> *On Behalf Of *
> kathy at DNRC.TECH
> *Sent:* Tuesday, May 4, 2021 5:35 PM
> *To:* NCSG-DISCUSS at LISTSERV.SYR.EDU
> *Subject:* Option 1
>
>
>
> Tx to Milton, Stephanie, Manju, Tapani, Farzi, Mark Leiser, Kim von Arx
> and everyone else who commented on our dicussion of options for the EPDP.
>
> As it's time to wrap up this issue so our EPDP members can present our
> view to the EPDP Group, I co-wrote the email Stephanie posted earlier today
> (attached below too). Best regards, Kathy
> ------------------------------------------------------------------------
>
> Fellow NCSG members,
>
> >We would like to work together to share our rationale for Option 1 –
>
> maintaining the status quo and not asking further follow-up questions,
> mandatory or otherwise, about legal and natural persons. While the EPDP
> phase 2a discussions have been an educational and interesting exercise, we
> are not under any obligation to change the existing policy, or further
> complicate it.
>
> As we have all discussed, legal/natural person questions are very
> complicated for many of our members who are often noncommercial and
> non-profit organizations whose structure and ways of obtaining domain names
> do not resemble those of the large corporations other stakeholder groups
> represent. Our members may have many layers of privacy protection in
> less-well-known sections of the GDPR, other local law, Constitutions and
> international conventions.
>
> We learned that recent studies show that 50% of gTLD domain name
> registrations are for natural persons – and at least 25% more have
> overlapping entity and personal data (e.g., the organization name has
> personal data in it and is thus protected as personal data).
>
> Stephanie and Kathy shared their concerns for legal/natural person
> questions during our long work on the Proxy and Privacy  Accreditation
> Working Group.   We worked closely with the Registrars Stakeholder Group to
> protect registrant privacy – including Battered Women’s Shelters, family
> planning clinics, and girls educational institutions – all of which may be
> legal entities, but have protectable data due to obvious danger from
> disclosure in certain countries.
>
> *In light of the complicated world around us, we support Option 1- the
> Status Quo. * We ask the NCSG to adopt this as our stance.  *Based on the
> existing policy which makes differentiation of legal/natural persons
> optional for each registrar, we believe we already have the*
>
>
>
>
>
>
>
> * -        best way to fight DNS Abuse, -        best way to protect
> individuals and noncommercial organizations, and -        best way to
> follow GDPR and other applicable human rights and free speech laws
> Therefore, we recommend NCSG “hold the line” and stick with Option 1.*
>
> *As the Registrars wrote in their EPDP Statement on Thursday April 29: **We
> have heard plenty of vocal support in this group to  [differentiate between
> legal and natural persons in a mandatory fashion], but to date the RrSG
> have not heard any compelling reason to create policy that makes this
> dramatic shift to the domain registration landscape.*
>
> *We agree. * Nothing will stop other stakeholder groups from demanding
> further disclosure of data, and lobbying other parties including
> governments. *What we can do in ICANN is come up with the best solution
> for us at this time.*
>
> Many thanks to the members of our NCSG EPDP Team for your hard work. This
> has been a long road.  With new studies, new information and legal
> opinions, we think we have a clear and strategic path forward.  We believe
> our position to be closely aligned with that of the Registrar Stakeholder
> Group, which they articulated on April 29 (see below).
>
> Best, Kathy Kleiman and Stephanie Perrin
>
> ---------------------------------------------------------
> The Registrar Stakeholder Group issued their position statement on
> Thursday (4/29):
>
> The members of the RrSG EPDP team have participated in this process in
> good faith since day one and will continue to do so; however, we need to be
> crystal clear that members of our Stakeholder Group, whom we are here to
> represent, have voiced and recently reconfirmed their strong opposition to
> any policy coming out of this group that makes differentiation between
> natural and legal persons for domain registrations mandatory.
>
> We have heard plenty of vocal support in this group to do just that, but
> to date the RrSG have not heard any compelling reason to create policy that
> makes this dramatic shift to the domain registration landscape. The
> Contracted Party can make the most accurate assessment of their own legal,
> technical, and commercial risks and obligations, and is the only party that
> can determine what level of risk they should assume. The scope of this EPDP
> Phase 2a is to consider if changes are required for the relevant
> Recommendation; it has become clear through this process that no such
> changes are required
>
> To the extent this group can focus its energies on guidance to contracted
> parties which choose on their own to make this differentiation, we continue
> to believe that is a worthwhile exercise. We believe that guidance
> materials including educational information provided by ICANN in multiple
> languages would help contracted parties educate registrants and this would
> be a valuable effort.
>
> That said, based on analysis done by our stakeholder group's members, we
> reject the notion that the majority of registered domain names are
> registered to legal entities. We further remind this team that we have not
> yet seen evidence that increased publication of registration data will
> address any of the problems which have been mentioned so far in this phase,
> and that the registration data is reliably and promptly available to those
> who do have a legitimate reason to access it.
>
> Finally we note that this statement represents the official position of
> the Registrar Stakeholder group, and statements from members of other
> groups participating in the EPDP do not represent our group’s position.
>
> *(Source: Transcript of EPDP-Phase 2A Team Call, 29 April 2021, Statement
> of Volker Greimann on behalf of the Registrars Stakeholder Group read into
> the record)*
>
>
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