Fwd: [gnso-dow123] Policy and Advice: Recommendation 2

[KathrynKL@xxxxxxx]

In preparation for tomorrow's meeting, I am re-posting the Policy and  Advice 
for Recommendation 2 that Steve and I drafted offline at the request of  the 
TF.  It was 
originally posted last Tuesday, around 6pm EST. 
 
Regards, 
Kathy

--- Begin Message ---

• To: gnso-dow123@xxxxxxxxxxxxxx
• Subject: [gnso-dow123] Policy and Advice: Recommendation 2
• From: KathrynKL@xxxxxxx
• Date: Tue, 7 Jun 2005 17:55:41 EDT

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
Description: Binary data

--- End Message ---