Re: [Fwd: Re: [gnso-dow123] Note to council on Notice recommendation]

["Jordyn A. Buchanan" <jordyn@xxxxxxxxxxxxx>]

Hi Maggie:

Other than the vote required as part of the PDP, the method for  
making decisions within a Task Force are not defined in the Bylaws,  
so procedural issues are largely left up to our best judgement.  As I  
hope everyone realizes, in most circumstances, I try to gain  
consensus of all or very nearly all participants in the task force,  
but on occasion it is also necessary to conduct some sort of vote to  
resolve an issue.  In general, I would consider any issue that  
appears on the agenda of a Task Force call to be the reasonable  
subject for some sort of vote to help shape the direction of our  
work, unless participation on a particular call was exceedingly low  
for some reason.  This is not directly relevant to the issue at hand,  
because we didn't conduct a vote but I'll leave it there as a general  
statement of principle.

This particular item was odd in two respects:  first, it was not  
anticipated as an agenda item for the call, and (but?) second, it was  
necessary to discuss the item because it was the last call we would  
have before the Council is scheduled to vote on the proposal in  
question.  As a result, those of us on the call had to struggle to  
deal with the issue in a reasonable manner during the limited time we  
had available.  We did have representatives from each of the  
constituencies on the call, and while Niklas from the IPC and David  
Farris from the BC both expressed some reservations, I don't believe  
either requested that I not proceed with sending a communication to  
the Council on this topic.

I do agree that it came as a surprise to hear that the current  
proposal might serve as some sort of waiver, and I don't believe that  
there is widespread agreement that it actually does so.  However,  
this is not an issue that we looked at in our initial discussions,  
and it does seem like an important topic to investigate further.  As  
you suggest, before making a decision, it would be important to get a  
better sense of the legal opinions on the subject--on the call  
Marilyn suggested that we might seek some further legal feedback on  
the topic.  However, conducting that inquiry is useless if the  
Council has already acted on the proposal.  This is why it was deemed  
to be useful to request that the Council defers action on the proposal.

In the interest of addressing the various concerns raised on the  
mailing list, I would propose the following modified version of my  
original communication.  We do need to send this out soon:

Dear Bruce:

In discussions of the Whois TF this week, a concern was raised that  
the current proposal relating to improving notice to registrants  
regarding the use of their contact details in the Whois system may be  
viewed as a waiver of registrants privacy rights.  It was not the  
intent of the task force that the recommendation act as any sort of  
waiver, but this was not an issue that we considered during the work  
of the task force.  There is no agreement in the task force that the  
current policy recommendations would constitute a waiver, however a  
number of the members of the task force do believe that this is an  
important issue and believe that it would be premature for the  
Council to adopt the policy recommendations without considering it.   
Although the Task Force did not have time to form an official  
position on this issue, in light of those concerns, I am writing to  
request that the Council either:

a) Refer the recommendation back to the Task Force for further  
consideration of this specific issue; alternatively, the Council may  
want to consider this specific issue itself, or

b) Delay adoption of this recommendation until such time as the full  
range of issues currently being considered by the task force have  
resulted in a broader set of recommendations that may render this  
issue moot.

Thanks,

Jordyn A. Buchanan
Chair, Whois TF

On Aug 11, 2005, at 1:02 PM, Mansourkia, Magnolia (Maggie) wrote:

> Dear Colleagues-
> Before getting into the substance of the issue here, I have a  
> procedural
> problem.  Following the chain of emails, I have noticed a few  
> instances
> where people are referring to "agreements" made on Tuesday's call.  I
> would suggest that unless the full task force membership is on a call
> and truly "agrees" to a certain decision, it is inappropriate to  
> quickly
> move toward a position that is coming as a complete surprise to some
> members. I know that in the interest of time, decisions do get made on
> calls, and not everyone can always be present to participate.  That is
> fine. However, something as important as tabling or taking back a
> recommendation that has already been voted through in the task force,
> should require more than one call, should be noticed well in  
> advance so
> that all members have opportunity for input and should be fully
> explained because it is leaving at least one of us (me) completely
> baffled.
>
> Getting to what I believe the substantive issue is-
> I don't see how highlighting terms that are already in existence  
> can be
> a waiver.  If the issue is that registrants do not have opportunity to
> negotiate the terms, our recommendation does not negatively impact  
> that.
> I can't remember the last time I negotiated my credit card terms, my
> drivers' license terms or my ISP terms of use, for that matter.
> However, bringing increased attention to a particular provision has no
> impact on that.
>
> What it does impact would be a registrant's argument that he was not
> made aware of how his information would be used. Are we saying that it
> would be a good thing to keep such confusion and ambiguity in the
> agreements?   Are we saying that better clarity is equivalent to a
> waiver?  (if so, in what jurisdiction would that be??)
>
> My colleague, Greg Ruth, who was on the call indicated to me that task
> force members in favor of taking back the recommendation were invoking
> advice they'd received from legal experts.  I guess I need to hear  
> from
> such experts b/c I've read through all the discussion and still don't
> get it.
>
> To the extent that we are going back to Council to revise any
> recommendations that required a vote, it is the ISPCP position that  
> such
> revisions must receive the same discussion and full membership vote.
>
> Regards,
> Maggie
>
>
> -----Original Message-----
> From: owner-gnso-dow123@xxxxxxxxx [mailto:owner-gnso-dow123@xxxxxxxxx]
> On Behalf Of Milton Mueller
> Sent: Thursday, August 11, 2005 10:19 AM
> To: gnso-dow123@xxxxxxxxxxxxxx; gnso.secretariat@xxxxxxxxxxxxxx
> Subject: Re: [Fwd: Re: [gnso-dow123] Note to council on Notice
> recommendation]
>
> NCUC originally supported the Notice Recommendation and we would
> absolutely support reconsideration.
>
> Forwarded from Steve Metalitz who is unable to post while on vacation.
>
> > (2) Since the constituency Ross and Paul represent voted against the
> > recommendation origiinally, what is the basis for reconsideration?
> > Normally such a motion could only be brought by someone who had voted
> > yes originally
>
>
> Dr. Milton Mueller
> Syracuse University School of Information Studies
> http://www.digital-convergence.org
> http://www.internetgovernance.org