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

["Jordyn A. Buchanan" <jordyn@xxxxxxxxxxxxx>]

Thanks, Steve.

A reminder to everyone that if you have questions for the staff on this  
topic that you would like addressed on next week's call please submit  
them by the end of today.

Jordyn


On Mar 10, 2005, at 11:56 AM, Steven J. Metalitz IIPA wrote:

> 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
>
>
> ----------------------------------------------------------------------- 
> ---------
>
> [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