[gnso-dow123] RE: questions for 3/15 discussion re recommendation 2

["Steven J. Metalitz IIPA" <metalitz@xxxxxxxx>]

This is in response to the request to submit questions to the ICANN staff in 
advance of the scheduled discussion with them on next Tuesday re Recommendation 
2 (see 
http://gnso.icann.org/issues/whois-privacy/whois-tf-conflict-30nov04.pdf).  

I have no disagreement with the first three points in the December 20 memo 
(below).  The Task  Force 1/2 tried to give the matter "careful study,"  as 
point 3 calls for, but I am sure our work product could be improved.  

As I read points 4 and 5 of the December 20 memo, the principal concerns seem 
to be:

(A)   The provision in bullet iii of Step Three that lays down a "general rule" 
regarding the General Counsel's recommendation (also applicable in Step Four)

(B)    The requirement that enforcement action against a non-compliant 
registrar in these circumstances be taken only with the approval of the Board 
of Directors 

(C)    The expectation that the recommendation to the Board would (at least 
"ordinarily," see Step Five) be made public 

(D)     The allocation of certain duties to the General Counsel rather than 
other parts of the ICANN staff 

I believe it would be useful to ask the staff who will be participating in the 
discussion whether in fact these are their principal substantive concerns with 
the recommendation.  In my personal view these are all quite legitimate 
questions on which it would be beneficial to get the perspectives of 
responsible members of the ICANN staff.  However if there are other concerns it 
would be essential to surface them as soon as possible.  

Regarding point 6 of the December 20 memo, it might be useful to clarify that 
it was not the assumption of the task force (though it may be the view of some 
of its members) that the current Whois system, or any of the improvements that 
are under discussion, are not in "the broadest possible harmony with local 
regulations."   There are differing views on the Task Force about the 
likelihood or the potential merits of any claim that the current policy 
conflicts with local law, but there was broad support for the idea of 
developing a procedure for dealing with such claims, if and when they arose, 
rather than handling them on an ad hoc basis.  To the extent that point 6 
expresses a view about the priorities chosen by the Task Force,  I believe the 
Task Force should welcome these views but that it would not be a fruitful topic 
for conversation next Tuesday. 

Steve Metalitz      

-----Original Message-----
From: owner-gnso-dow123@xxxxxxxxx [mailto:owner-gnso-dow123@xxxxxxxxx] On 
Behalf Of Glen De Saint Géry
Sent: Tuesday, March 08, 2005 4:47 PM
To: gnso-dow123@xxxxxxxxxxxxxx
Subject: [gnso-dow123] [Fwd: Staff response to Recommendation 2]

The mail requested on the call.
Regards
Glen


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[dow1-2tf] ICANN Response
To: <dow1-2tf@xxxxxxxxxxxxxx>
Subject: [dow1-2tf] ICANN Response
From: "Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx>
Date: Mon, 20 Dec 2004 15:36:36 -0500
Sender: owner-dow1-2tf@xxxxxxxxxxxxxx
Thread-index: AcTm0DORpYJNaZrVQ1qLEK9FRFAsUwAAsZKAAAAgFyA=

--------------------------------------------------------------------------------

Title: FW:
All,

Lets be prepared to discuss the significance of this response on the call 
tomorrow.

Thanks.

Jeff
______________________________________________
From:   Paul Verhoef [mailto:paul.verhoef@xxxxxxxxx]
Sent:   20 December 2004 21:12
To:     'dow1-2tf@xxxxxxxxxxxxxx'; 'jordyn@xxxxxxxxxxxxx'
Cc:     'Bruce Tonkin'; 'Dan Halloran'; 'Barbara Roseman';
'gnso.secretariat@xxxxxxxxxxxxxx'
Subject:

TO: Task Force 1/2 co-chair

Dear Jordyn,

I have consulted with our operations and legal staff, and have developed the 
following informal feedback concerning Task Force 1/2's draft
recommendation:

1. Registries and registrars should of course not enter contracts that would be 
illegal for them to perform.

2. Fair competition rules dictate that registries and registrars should not be 
able to gain a competitive advantage by choosing to operate from a jurisdiction 
that has purportedly outlawed compliance with part of the Registrar 
Accreditation Agreement.

3. Without careful study, action to address the concerns raised by TF1/2 could 
open loopholes to compliance with the RAA that would hurt data accuracy, 
consumer protection, and other authorised uses of Whois data.

4. The recommendation is drafted broadly, and could be read to require ICANN to 
allow violations of the RAA except to preserve stability or security.  The 
draft report appears to give registrars and registries the right to 
unilaterally breach the RAA, as long as they give notice to ICANN.  ICANN would 
be unable to take any reaction to ensure compliance without formal action by 
the Board of Directors, following a process that includes publishing a report 
that could contain priviliged and confidential legal advice from ICANN's 
attorneys.

5. The recommendation posits specific activities for the ICANN General 
Counsel's office, and prescribes actions to the GC's office which may be dealt 
with more appropriately by policy development, registrar/registry liaison or 
ICANN's Global Partnerships departments. The specificity of actions described 
also seems like micro-management of ICANN staff resources in what is supposed 
to be a policy discussion.

6. In light of the serious concerns meant to be addressed by the 
recommendation, and the issues outlined above with the initially suggested 
approach, might it be preferable to focus GNSO attention on developing 
improvements to Whois policies that will allow for the broadest possible 
harmony with local regulations, and then continue to leave it up to individual 
companies to determine whether they can undertake the obligations set forth in 
ICANN policies and agreements in light of local requirements?

Thank you for asking for our feedback.  I hope this is helpful to you and the 
task force.  I look forward to providing further assistance as you may require.

Best regards,
Paul



____________________________________
Paul Verhoef
Vice President Policy Development Support ICANN
6 Rond Point Schuman, Bt.5
B-1040 Brussels, Belgium
Tel.: +32.2.234 7872
Fax: +32.2.234 7848
www.icann.org




--
Glen de Saint Géry
GNSO Secretariat - ICANN
gnso.secretariat[at]gnso.icann.org
http://gnso.icann.org


-- 
Glen de Saint Géry
ICANN
glen[at]icann.org
http://www.icann.org