Re: [gnso-dow123] REMINDER: suggested revisions for recommendation #2

["Milton Mueller" <Mueller@xxxxxxx>]

Thanks for the reminder, Jordyn.

I was aware of the deadline. My attitude was: any document that is
acceptable to Kathy Kleiman and Steve Metalitz is acceptable to me....I
think we are beyond the tweaking stage and should vote this up or down
as is. 

Dr. Milton Mueller
Syracuse University School of Information Studies
http://www.digital-convergence.org
http://www.internetgovernance.org


>>> "Jordyn A. Buchanan" <jordyn@xxxxxxxxxxxxx> 6/16/2005 3:45:54 PM
>>>
Fellow Task Force Members:

Please take the opportunity to review the attached recommendation and 

procedure for resolving conflicts with national laws.  If you have  
suggested revisions, please submit them as soon as possible (today  
ideally, but in any case no later than tomorrow) so that the other  
members of the task force has an opportunity to consider them prior  
to sending the recommendation to constituencies for their  
consideration and comment.

Jordyn

*
---------------------  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/registry's legal obligations under  
privacy laws and their contractual obligations to ICANN.  Its report  
included the statement:  "The Task Force believes that there is an  
ongoing risk of conflict between a registrar's or registry's 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 "consensus 

policy" accompanied by "well-developed advice for a procedure."

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.]