[gnso-dow123] Policy and Advice: Recommendation 2
All: Per the request of the TF on 5/24, Steve and I have worked off list to divide Recommendation 2 into a Consensus Policy Recommendation and a Procedure that staff can use as a starting point for an implementation policy. We worked hard on this material and hope that it moves the discussion forward. One note: While the Consensus Policy Recommendation is new, the Text of Recommended Procedure (now Section II) is not. As a Task Force, we had some good dialogue about the proposed revisions to this section, but made no decisions pending its division in the new document. Accordingly, Steve and I did not change this text, but left the original changes highlighted. People who made comments may want to repeat them, but I leave this issue to Jordyn. Regards, Kathy --------------------- Policy/Advice Recommendation 2 on Conflict of National Laws Preamble: Task Force 2 spent over a year collecting data and working on the conflict between a registrar/registryâs legal obligations under privacy laws and their contractual obligations to ICANN. Its report included the statement: âThe Task Force believes that there is an ongoing risk of conflict between a registrarâ s or registryâs legal obligations under local privacy laws and their contractual obligations to ICANN. TF2 Report, Section 2.3, http://www.gnso.icann.org/issues/whois-privacy/Whois-tf2-preliminary.html. By vote of the Task Force, now merged, on May 24, 2005, the work of Task Force 2 is hereby divided into a recommendation for âconsensus policyâ accompanied by âwell-developed advice for a procedure.â I. Task Force Policy for WHOIS Conflicts with Privacy Law CONSENSUS POLICY RECOMMENDATION In order to facilitate reconciliation of any conflicts between local/national mandatory privacy laws or regulations and applicable provisions of the ICANN contract regarding the collection, display and distribution of personal data via Whois, ICANN should: 1. Develop and publicly document a procedure for dealing with the situation in which a registrar or registry can credibly demonstrate that it is legally prevented by local/national privacy laws or regulations from fully complying with applicable provisions of its ICANN contract regarding the collection, display and distribution of personal data via WHOIS. 2. Create goals for the procedure which include: a. Ensuring that ICANN staff is informed of a conflict at the earliest appropriate juncture; b. Resolving the conflict, if possible, in a manner conducive to stability and uniformity of the Whois system; c. Providing a mechanism for the recognition, in appropriate circumstances where the conflict cannot be otherwise resolved, of an exception to contractual obligations with regard to collection, display and distribution of personally identifiable data via Whois; and d. Preserving sufficient flexibility for ICANN staff to respond to particular factual situations as they arise. II. Text of Recommended Procedure WELL-DEVELOPED ADVICE ON A PROCEDURE FOR HANDLING WHOIS CONFLICTS WITH PRIVACY LAW Based on extensive research and negotiation among Task Force 2 together with the merged Task Force and ICANN staff, the following procedure for handling the policy recommendation set out in Section I above is set out as a Recommended Step-by-Step Procedure for Resolution of WHOIS Conflicts with Privacy Law. We encourage ICANN staff to use this Recommended Procedure as a starting point for developing the procedure called for in the Consensus Policy Recommendation above. [NOTE: Full Document Attached. This is only the first part of the document. Please see the Word file attached for the full text of Section II with the proposed revisions from our earlier work and discussion.] Attachment:
Policy and Advice_ Draft.doc |