RE: [gnso-dow123] Whois combined task force draft minutes 24 May 2005

["Tim Ruiz" <tim@xxxxxxxxxxx>]

In support : Marilyn Cade, David Fares as long as there was agreement on all
issues, David Maher, Tony Harris, Paul Stahura with the caveat that it was
an exhaustive list,

 

I don?t believe the above excerpt from the minutes is correct. I think it
should read as follows with the changes between asterisks. 

 

In support : Marilyn Cade, David Fares as long as there was agreement on all
issues, David Maher, Tony Harris, Paul Stahura with the caveat that it *be
noted that it* was *not* an exhaustive list,

 

Tim

 

 

-----Original Message-----
From: owner-gnso-dow123@xxxxxxxxx [mailto:owner-gnso-dow123@xxxxxxxxx] On
Behalf Of GNSO.SECRETARIAT@xxxxxxxxxxxxxx
Sent: Friday, May 27, 2005 3:23 PM
To: gnso-dow123@xxxxxxxxxxxxxx
Subject: [gnso-dow123] Whois combined task force draft minutes 24 May 2005

 


WHOIS Task Forces 1 2 3

24 May 2005 - Minutes


ATTENDEES:
GNSO Constituency representatives:
Jordyn Buchanan - Co-Chair
Registrars constituency - Paul Stahura 
Registrars constituency - Tim Ruiz (alternate) 
Registrars constituency - Tom Keller
Internet Service and Connectivity Providers constituency - Tony Harris 
Internet Service and Connectivity Providers constituency - Greg Ruth 
gTLD Registries constituency - Ken Stubbs
gTLD Registries constituency - David Maher 
Non Commercial Users Constituency - Kathy Kleiman
Commercial and Business Users constituency - Marilyn Cade
Commercial and Business Users Constituency - David Fares
Intellectual Property Interests Constituency - Steve Metalitz

Ex Officio
Bruce Tonkin - GNSO Council chair 

Liaisons
At-Large Advisory Committee (ALAC) liaisons - Wendy Seltzer 
GAC Liaison - Suzanne Sene absent - apologies 

ICANN Staff: 
Maria Farrell Farrell - ICANN GNSO Policy Officer

GNSO Secretariat - Glen de Saint Géry 

Absent:
Intellectual Property Interests Constituency - Niklas Lagergren - apologies 
Registrars constituency - Ross Rader 
Non Commercial Users Constituency - Marc Schneiders
Non Commercial Users Constituency - Milton Mueller - apologies 
Non Commercial Users Constituency - Frannie Wellings 
Commercial and Business Users Constituency - Sarah Deutsch - apologies 
Internet Service and Connectivity Providers constituency - Maggie Mansourkia



MP3 Recording <http://gnso-audio.icann.org/WHOIS-20050524-tf123.mp3> 
Preliminary <http://forum.icann.org/lists/gnso-dow123/msg00323.html>
Summary 

Agenda: 
1. Follow up discussion on recommendation on notification. 
List of implementation issues and questions regarding the recommendation on
notification 
http://forum.icann.org/lists/gnso-dow123/msg00312.html 
2. Discussion on the form of the recommendation on conflicts with local law
- policy or advice 

Item 1 Discussion on the form of the recommendation on conflicts with local
law - policy or advice 
Jordyn Buchanan asked for comments whether recommendation 2 should be
forwarded to the ICANN staff or the ICANN Board as advice given that there
seems to be some ability to deal with such situations as in the case of
.name, or as a formal policy recommendation which could, if approved by the
GNSO Council and the ICANN Board, become binding consensus policy.
Steve Metalitz posted to the list the last draft of
<http://forum.icann.org/lists/gnso-dow123/docIz7oayTmrP.doc>  the
recommendations along with a thread
<http://forum.icann.org/lists/gnso-dow123/msg00316.html>  incorporating the
discussion on the topic. and commented that without knowing exactly what was
in the document, it was difficult to comment on whether it should be advice
or policy.
Tom Keller commented that the recommendation could be both policy and advice
because it was generally agreed that there should be an open and transparent
process for ICANN staff to use if such a problem arose.
Jordyn Buchanan added the option that had been discussed in previous calls,
to formally recommend a policy that there should be a process and advice
about one possible implementation of it to the ICANN staff.
Marilyn Cade, in agreement with Tom Keller, commented that for a consensus
policy there should be a process and the task force could provide advice on
what the process should include to provide enough flexibility given the
unique situations that may arise in different countries.
Kathy Kleiman stated that a great deal of time, work and thought had gone
into recommendation 2 and the NCUC would like to see it become a policy
because advice did not offer as much clarity and consistency on how everyone
would be treated.
Marilyn Cade asked whether the NCUC would agree with her proposal that there
be a policy but that the process itself be left as advice or did the NCUC
want the entire process be consensus policy.
Kathy Kleiman commented that it was clear what was meant by "policy" but "
advice" needed more explanation.
Paul Stahura commented that policy could be too constraining on ICANN as the
registrar community represented a wide range of national laws thus he
preferred the recommendation as providing advice.
Tim Ruiz reminded the task force of the Registrar
<http://www.icann.org/registrars/ra-agreement-17may01.htm>  Accreditation
Agreement section 3.7.2
3.7.2 Registrar shall abide by applicable laws and governmental regulations
and commented that as a registrar, Godaddy had always had advice from ICANN
on how to deal with a problem to be in compliance with the RAA.
Marilyn Cade commented that: 
- given there was general support for the idea that if the registrars
encountered problems, ICANN was there to help deal with the problem.
- given many members of the task force supported the idea of an acknowledged
process, using a neutral term, not advice or policy ? 
- if it were advice, how binding would the the advice be, 
- if it were policy, how would it avoid being restrictive and provide enough
flexibility for ICANN to deal with individual problems registrars
encountered ? 
- as an individual and member of the Commercial and Business users
constituency, she suggested a compromise that supported the idea that there
should be awareness and sensitivity of ICANN staff being able to address
individual issues as they arose. She proposed there be a policy statement
and a process, with the task force work attached as an example of the
process to be provided as advice to ICANN. However, the responsibility lay
with the task force to decide whether enough work had been done on what the
advice should be.

Jordyn Buchanan summarised that the suggestion put forward was to have a
relatively short consensus policy, perhaps along the lines that " ICANN will
develop and document a procedure for resolving conflicts between local or
national privacy laws and registry / registrars? obligations to publish
WHOIS data?, that is a couple of sentences to say ICANN needs to develop a
procedure. As a supplement the task force, after agreement, would develop a
transmittal document to the staff, that included a procedure for the staff
to consider which could give them the flexibility to adapt over time.
He asked whether it would meet the NCUC requirements to have a policy but
leave the details to the ICANN staff to develop and change from time to
time.
Kathy Kleiman commented that the recommendation had been well developed and
asked for the question to be left in the balance until the exact text was
available as the wording was important and if it was advice what exactly the
advice would be?
Wendy Seltzer agreed that there could be flexibility in a policy
recommendation but the appropriate way to recognize the task force's effort
spent developing the recommendation would be by making it a policy decision.
Tony Harris asked if tiered access became a reality, would national law and
privacy considerations still be an issue and require policy?
Some task force members felt it was difficult to know and it could depend on
the domicile of the registrar.
Tony Harris suggested adding a caveat that a possible solution would be to
automate a procedure when completing a registration that a template would be
filled in which would indicate to the data base that in certain countries
there were privacy laws and the data of that subject should not be
exhibited.
Steve Metalitz said he would be happy if a policy was established but then
there needed to be a procedure and a recommendation on what that procedure
would be.
Jordyn Buchanan reflected on Kathy Kleiman and Wendy Seltzer's remarks and
said that it may be possible to bifurcate the current recommendation into 2
parts. 
- the shorter policy recommendations
- select from the present recommendation the details defining who does what
and at what point in the process. It might be desirable to incorporate
certain elements on notice and information to the community along the way.

Paul Stahura referred to his posting
<http://forum.icann.org/lists/gnso-dow123/msg00249.html>  on 3 May 2005 as
an example that the the registry / registrar would have to exhaust the
options under their current contractual framework before they asked for an
exemption.
" If a Registrar is allowed to offer "privacy-enhanced services" that are
allowed under the current RAA and that offering such services would bring
them into compliance with their national laws, BUT CHOOSES NOT TO OFFER SUCH
SERVICES, then that registrar would NOT be allowed to provide
"privacy-enhanced services" that differ from the current RAA, correct?
If correct, then add "and IF AND ONLY IF you cannot modify your current
practices so that you are simultaneously in compliance with the current RAA
and your national law" So if, for example, putting all your names on
"domains by proxy" (or whatever) is allowed by RAA and does not conflict
with your national laws, then you must do so before you get special
exemption from RAA.
Ken Stubbs commented that there were currently 10 ? 15 million domain names
in thick registries and expressed concern about:
- conflicts between domiciles of registrars and registries. Registrars may
be obligated not to disclose data that the registries could be obligated to
disclose because of the conflicts in domicile.
- potential conflicts between tiered access roles, such as where would one
go to get the access? to the registry or the registrar. 
He emphasised that there should be consistency in the methodology.

Jordyn Buchanan suggested splitting up the document into policy and
recommendation of how to implement the procedure capturing the present
discussion and elements such as requesting exemptions may be added as advice
to the staff. 

Steve Metalitz and Kathy Kleiman offered to do the redrafting of the
recommendation in two sections.

1    Summary      Recommendation 1 ? conflict with national laws 

The task force discussed whether to proceed with developing Recommendation 1
as a consensus policy or as advice (to ICANN staff / the Board), or as a
combination of both.  

 

Decisions

*         The task force agreed to develop the recommendation in two
sections: as a policy which includes a procedure, accompanied by a
recommendation on how to implement that procedure.  

 

Actions

*         Steve Metalitz and Kathy Kleiman to draft a revised recommendation
in two sections. Jordyn Buchanan to provide input to Steve and Kathy in the
form of thoughts and notes from the call. 

*         Task force members will continue to use the mailing list to
discuss this issue.  

Item 2. Follow up discussion on recommendation on notification. 
List of implementation issues and questions regarding the recommendation on
notification 
http://forum.icann.org/lists/gnso-dow123/msg00312.html 

 Jordyn Buchanan referred to the set of issues that were identified as a
result of the task force discussion on 17 May 2005 for the purpose of
forwarding some to an implementation group, or to potentially modify the
recommendation if the task force held a strong view. 
List of <http://forum.icann.org/lists/gnso-dow123/msg00312.html>
implementation issues and questions regarding the recommendation on
notification

1) How often should the registrant see (and acknowledge) the notifications
relating to the use of their contact data?
- Once per domain name
- Once per batch of domain names
- Once per relationship with the registrant
- Some variation of the above

2) Should the registrar and registrant be able to mutually agree to modify
when the notifications are made?

3) Should the registrant be periodically reminded of the use of their
contact information in the Whois system? e.g. with an annual request to
update any inaccurate information. If so, how is this reconciled with
requirement #3 (that the registrant must obtain a separate acknowledgment of
this notification)?

4) [From Bruce's comment] Is there a more appropriate way to notify the
registrant that their data will be used in the Whois system?

5) Should an implementation group work to define the precise meaning of
'during the registration process'?

Marilyn Cade commented on her extensive experience with the linkage between
an implementation working group, which was not a task force or committee,
and the work that a policy task force did. She proposed sending guidance and
the benefit of the task force work to the council and through the council to
a working group. She considered it likely that the whois task force would
continue to work on other issues while the implementation working group was
set up and suggested that the task force should offer consultation as needed
to support the working group. It was usual that the working group included
representation from the groups that have to implement the recommendation and
from the user community and the At Large Advisory Committee. The
conversation had on the last call, 17 May 2005 should be sent to the council
and the working group.
Jordyn Buchanan commented that the list of identified issues and some
guidance would be sent forward.

Paul Stahura commented that the issues mentioned on the 17 May call were
examples of why he believed that the registrar constituency came up with the
registry constituency modifications of the recommendation but was not
recommending any changes other than those which the registrar constituency
had voted.

Steve Metalitz remarked that the list had been out for approximately 5 days,
there had been one comment and he suggested that the recommendation be sent
forward to the Council for the council to vote on as consensus policy.
Tom Keller agreed.
Marilyn Cade proposed sending the recommendation to the council with a
transmittal letter that would include the list of issues that should be
discussed by an implementation working group.
Jordyn Buchanan asked whether there were any objections to the list of
issues <http://forum.icann.org/lists/gnso-dow123/msg00312.html>  being
included?

Paul Stahura commented that ICANN did not require a registrar to have a
website to display WHOIS information, registrations could be taken by phone,
and other means. He suggested that the implementation group should consider
what would happen if a registrar did not have a website?
Steve Metalitz responded that details could be worked out by an
implementation group and he did not agree with all the issues on the list
and suggested sending the recommendation and not the list.
Tim Ruiz asked how the
<http://forum.icann.org/lists/gnso-dow123/msg00312.html>  list , if it was
included, would be positioned with the recommendation as not everyone agreed
those were issues or that they were the only issues.

Jordyn Buchanan suggested that the list
<http://forum.icann.org/lists/gnso-dow123/msg00312.html>  would be included
as part of a transmittal document to the Council with the final report,
indicating that following issues were identified as potentially appropriate
topics for further consideration by an implementation group if the council
chose to form such a group.

Jordyn Buchanan proposed polling the task force on the question:
whether the task force supported the inclusion of the list of
<http://forum.icann.org/lists/gnso-dow123/msg00312.html>  implementation
issues and questions identified in call on 17 May, 2005 as well as the
issues identified by Paul Stahura today, in the transmittal document to
council, as topics identified by the task force for further discussion. 

In support : Marilyn Cade, David Fares as long as there was agreement on all
issues, David Maher, Tony Harris, Paul Stahura with the caveat that it was
an exhaustive list, 
Against: Steve Metalitz and Tom Keller but would not object with the caveats
that Paul Stahura mentioned that not every one agreed that the issues were
valid implementation issues and there may be other implementation issues. 
Abstention: Kathy Kleiman
No vote recorded for (dropped off the call) Ken Stubbs and Greg Ruth

Each constituency voted, except for the one abstention, there seemed to be
support with the caveat that not everyone on the task force agreed all
issues were worthy of further consideration and the list was not exhaustive.


Maria Farrell summarised the changes that had been made to the Whois task
<http://forum.icann.org/lists/gnso-dow123/doc5WOSJ5eau3.doc>  force final
report on recommendation 1 improving notification and consent:

Page 2 Section 1 Introduction and background
The following paragraphs on background were added:
ICANN staff compiled the recommendation, constituency statements, previous
relevant public comments, and other relevant materials into a draft
Preliminary Task Force Report which was revised by the combined Whois Task
Force and finalized on 18 April 2005 . The revised Preliminary Task Force
Report was voted on by the task force constituencies in an email vote that
concluded on 22 nd April 2005 . The results of the vote were incorporated
into the Final Task Force Report (section 1.3). 
The Final Task Force Report on recommendations for improving notification
and consent for the use of contact data in the Whois system was published on
the ICANN website for public comments from 23 April 2005 to 12 May 2005 .
Those public comments are now incorporated in this document. The revised
Final Task Force Report on recommendations for improving notification and
consent for the use of contact data in the Whois system will be submitted to
the GNSO Council for discussion at its meeting on 2 nd June 2005 . 

Two headings were changed to obviate confusion between different public
comment periods.

1.1 Text of recommendation
1.2 Summary of public comments on the Final Task Force report (2005) 
3 Public comment report 2003 - 2004

Jordyn Buchanan proposed that the heading 1.2 Summary of public comments on
the Final Task Force report (2005) be changed to read:

1.2 Summary of public comments on the Preliminary Task Force report (2005)

Jordyn Buchanan proposed that assuming no substantive changes were made to
the document after task force members had had the opportunity to revisit it,
the Final report would be sent to the GNSO Council on Thursday 26 May
respecting the timeline for documents to be submitted for consideration by
the Council. However, if there were more substantive edits, the task force
would meet on Tuesday 31 May before finalizing the final report.

Jordyn Buchanan suggested deferring next week?s call 31 May 2005 and
scheduling a call for 7 June 2005. 

Bruce Tonkin, who rejoined the call, commented that if the Final Report on
recommendation 1 was to be considered by the Council at its meeting on
Thursday June 2, it should be submitted to the council by Thursday 26 May
2005. Bruce suggested that the task force concentrate on the policy element
of the recommendation 2 and get it launched out for public comment and
follow the policy development process for the policy portion.

Jordyn Buchanan thanked everyone for their participation and the call ended
at 16:45 CET 

2        SummaryRecommendation 2 ? improving notice and consentThe task
force discussed whether any substantive changes needed to be made to the
final task force report and also whether/in what form guidance on
implementation should be provided in the transmittal to the GNSO Council.
The guidance discussion was mostly based on the list of implementation
issues provided to the mailing list and with suggested changes by Steve
Metalitz ( <http://forum.icann.org/lists/gnso-dow123/msg00315.html>
http://forum.icann.org/lists/gnso-dow123/msg00315.html).   
No substantive changes to the recommendations in the  final task force
report were made.  A vote was held on the question ?whether we should
include the issues identified in last week?s call and identified by Paul
Stahura today be included in the transmittal to the Council?.   

Decisions 

*         The list of implementation issues will be sent to the Council with
the recommendation, accompanied by caveats that they are not agreed on by
everyone in the task force, all issues are worthy of further consideration
and the list is not exhaustive.  

*         If no further substantive changes to the recommendations in the
final task force report are made by Thursday 26 May 2005.  If substantive
changes are made, a task force call will be held on Tuesday 31st May to
discuss before finalizing the report for submission to the GNSO Council. 

 Actions

·        If no substantive changes are received by Thursday 26 May, Maria
will send the final task force report on recommendation 1 to the GNSO
Council ahead of their next meeting on Thursday 2nd June 2005. 

  3      Next task force call:

*         As presently advised, there will be no call on Tuesday 31st May
2005.