Re: [gnso-dow123] DRAFT redline of recommendation 2

[KathrynKL@xxxxxxx]

Bret:
You are an attorney.  As you know, disclosure of a pending criminal 
investigation can be a violation of law.  While I understand the desire for 
transparency in all things, one of them is not when a registrar is being 
contacted by a 
local law enforcement official regarding possible violations of law.

I have been in this position as counsel to a registrar.  The first rule is 
cooperation with law enforcement.  You want to provide information, explore the 
possible problem, and seek a resolution.  It is bad policy, and often a 
violation of law, to disclose the pending investigation.   (I checked this 
matter 
with several law enforcement officials and a former US District Attorney when I 
was researching it for Task Force 2.)

I had initially thought, as someone on ICANN staff on our call pointed out, 
that registrars should not disclose the investigation to ICANN at all.  But I 
seem to recall that registrars wanted to disclose it to ICANN staff under the 
protection of confidentiality.  To disclose it to the whole ICANN community is 
like disclosing it to the press-- you have violated the trust and 
confidentiality that the investigation requires.  Good chance you will be sued 
at that 
point. 

As you have appropriately pointed out, global businesses now regularly seek â
varianceâ for local law.  I think we are in the process of doing that here in 
compliance with local privacy laws... with the full confidentiality 
requirements as required by law.

Regards, 
Kathy Kleiman 


 

> In Steveâs draft (which is very helpful â thank you, Steve), we see this 
> confidentiality language several times: âThe Registrar/Registry may request 
> that ICANN keep all correspondence between the parties confidential pending 
> the 
> outcome of the Whois Proceeding. It is recommended that ICANN respond 
> favorably to such requests to the extent that they can be accommodated with 
> other 
> legal responsibilities and basic principles of transparency applicable to 
> ICANN operations.â I can understand making contractual negotiations 
> private, but 
> this isnât that sort of thing. Why permit these petitions for a variance to 
> be private? I would think everyone â ICANN, registrars and registrants â 
> would benefit from having these petitions (and ICANNâs responses) publicly 
> posted. If we do permit private requests, we ought to do two things (a) 
> carefully 
> define the specific instances in which private petitions are permitted; and 
> (b) publicly post the name of the registrar and the jurisdiction in which the 
> registrar is located at the time the variance is sought. 
>