RE: [gnso-dow123] Introduction of 'claimants' to Recommendation 2

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

What triggers the procedure is "notification of an investigation,
litigation, regulatory proceeding or other government or civil action"
that might affect registrar/registry compliance with ICANN contractual
obligations.  This is the language of Step One which has not been
changed.  
 
The rest of the text apparently assumes that the dispute is between the
registrar/registry and a government agency.  This could certainly be the
case, but since the procedure could also be triggered by "litigation" or
"civil action,"  it seems that a claim from a private party could also
set the procedure in motion.  If so, it is not very helpful to require
that the registrar/registry identify "the text of the applicable law of
regulations upon which the local government is basing its action or
investigation," to quote the 4th bullet of Step One, because there may
be no such government action or investigation, but rather a civil
lawsuit.  Presumably in that lawsuit the party claiming that the
registrar/registry is violating the law will point to a particular legal
provision, and that is what ICANN needs to know about.  Similarly, in
Step Two, "consultation with local/national enforcement authorities" may
be irrelevant if what has triggered the procedure is a private lawsuit.

 
This is why I suggested adding references to "or the claimant" in these
and other places in the draft. I gather that this created some confusion
on Tuesday's call.  I hope this note helps to dispel it.   I am quite
comfortable if the TF does not want to include the references to
"claimant" but in that case it's not clear to me how the procedure will
work in the case of a private lawsuit against a registrar/registry over
how it handles Whois data. 
 
We are all laboring under the disadvantage that we are creating a
procedure for a hypothetical circumstance which seems not to have
occurred and which may never occur, although I know others on the Task
Force are looking into a different crystal ball than I am.  Anyway I
hope this is helpful.  Maria I trust you will convey this to the staff
member who asked the question.  
 
Steve Metalitz     
________________________________

From: owner-gnso-dow123@xxxxxxxxx [mailto:owner-gnso-dow123@xxxxxxxxx]
On Behalf Of Maria Farrell
Sent: Wednesday, April 27, 2005 10:48 AM
To: gnso-dow123@xxxxxxxxxxxxxx
Subject: [gnso-dow123] Introduction of 'claimants' to Recommendation 2


Following up on a staff question on last night's whois call, could we
have some clarification on what Steve had in mind when introducing
claimants to the process?
 
Thanks, Maria