[gnso-dow123] Revised draft minutes WHOIS task force 25 April 2006
[To: gnso-dow123[at]gnso.icann.org] Dear All, Please find the revised draft minutes of the last WHOIS task force call on 25 April 2006. "Bruce Tonkin's view was neither formulation was explicit with respect to the public display of the name of the Registered Name Holder" Please let me know if you would like other changes made. Thank you, Kind regards, Glen ................................................................................ WHOIS Task Force 25 April - Minutes ATTENDEES: GNSO Constituency representatives: Jordyn Buchanan - Chair gTLD Registries constituency - David Maher gTLD Registries constituency - Simon Sheard gTLD Registries constituency - Ken Stubbs Registrars constituency - Ross Rader Registrars constituency - Tom Keller Internet Service and Connectivity Providers constituency - Maggie Mansourkia Intellectual Property Interests Constituency - Steve Metalitz Commercial and Business Users Constituency - David Fares Commercial and Business Users constituency - Marilyn Cade Non Commercial Users Constituency - Milton Mueller Non Commercial Users Constituency - Kathy Kleiman Nominating Committee appointee - Avri Doria Liaisons At-Large Advisory Committee (ALAC) liaisons - Wendy Seltzer GAC Liaison - Suzanne Sene ICANN Staff: Liz Williams - Senior Policy Counselor Maria Farrell Farrell - ICANN GNSO Policy Officer GNSO Secretariat - Glen de Saint Géry Absent: Internet Service and Connectivity Providers constituency - Tony Harris - excused Commercial and Business Users Constituency - Sarah Deutsch Intellectual Property Interests Constituency - Niklas Lagergren - apologies Registrars constituency - Paul Stahura gTLD Registries constituency - Tuli Day Non Commercial Users Constituency - Frannie Wellings Registrars constituency - Tim Ruiz (alternate) MP3 Recording Agenda: 1. Update and discuss activities from NZ, and recent council activity. 2. Discuss the NCUC proposal 3. Inclusion of Avri Doria, Nominating Committee appointee from the Council 4. Ongoing chairing of the task force. Marilyn Cade asked to add to the agenda, unless it would be covered in the Wellington update, a discussion concerning the lack of the Board vote on national conflict issue arising from the GNSO Council minutes 18 August 2005. 1. Update and discuss activities from NZ, and recent council activity. 1.1 Marilyn Cade reported on the Wellington activities: 1. The WHOIS discussion at the joint GAC/GNSO Council meeting on Sunday 26 March 2006. GAC/Council meeting was a well received and positive step forward, thanks to Suzanne Sene as liaison for arranging 2 hours meeting of updates from GAC and GNSO. Bruce Tonkin covered the 3 activities Council was working on: WHOIS, PDP on new gtld, and pdPDP on existing registry contracts. Maria Farrell gave a short summary of the status of theWHOIS work and questions from the GAC members followed. GAC members raised questions about the issues of public policy inherent in WHOIS they feel are within the responsibility of governments to provide advice and interact with the GNSO Council on. Two governments expressed concern for one formulation over the other. That concern was reiterated in the GAC communiqué and they intend to be involved in an ongoing way on WHOIS and new gTLD. In the GNSO public forum, there was an interesting, long interaction that Bruce Tonkin facilitated with the council members. Bruce Tonkin's view was neither formulation was explicit with respect to the public display of the name of the Registered Name Holder. He challenged the wording of both formulations on whether they achieved the outcomes proposed. He suggested that formulation 2 proponents should submit a modification. The re-drafted formulation 2 that did not gain support in the last council meeting on 12 April 2006. 2. WHOIS discussion at the GNSO public forum. 3. GNSO Council meeting. Suzanne Sene added that the GAC signaled to the GNSO Council that they were working on a concept paper that would evolve to a set of principles which could be shared with the WHOIS task force and the Council. There was a range of public policy concerns related to WHOIS data which should be considered by the Council as they considered the proposals coming from the WHOIS task force. This was a high priority issue for the GAC. which could provide the GNSO Council with what was needed to inform their deliberations and that the GAC could be consulted when the Council made decisions based on national policies and laws. It should be noted that the GAC was not aware that the vote on the 2 formulations would be so soon after the Wellington meeting and had the GAC realised this, the discussion in Wellington would have been different. The GAC was motivated to work directly with the GNSO council and felt a responsibility in informing the private sector as to government's perspective on the range of public policy interests affected by and related to WHOIS data and the outcome of the vote was important. Questioned whether the meeting between the GAC/ WHOIS task force with one or more data protection commissioners or any member of the article . 29 working party had been held? Or with any member or would be rescheduled, Suzanne Sene reported that it had been discussed during in the internal GAC meeting and it was agreed to shelve the concept of that workshop because of the lack of, not interest, but inability to produce government speakers. The goal of the workshops was to gain insight on the range of the entire policies, a single input by a single commissioner would not be sufficient. Instead the focus has been on developing the concept paper to convey to the GNSO Council the broad range of policy concerns governments have about the WHOIS data. Ken Stubbs commented, from a personal perspective, that the messages appeared to be mixed. On the one hand significant concerns about law enforcement issues were expressed and on the other hand broad public policy. Registries and Registrars were in general open to a methodology that ensured law enforcement agents the access they deemed necessary to effectively perform the functions they might need to have. If law enforcement agents' concerns were a straw man for Intellectual Property concerns, a broader agenda, then that would be where the issues would arise in the future. Milton Mueller, confirming Suzanne Sene's position as GAC liaison to the GNSO Council commented that the NCUC prepared a response to the Australian governments letter to the GNSO. The NCUC, researching the topic, found that the Australian data protection policy appeared to be inconsistent with Australian national law in supporting formulation 2. and appeared inconsistent with the WHOIS policy of .au.and wondered why thai was the case. Furthermore if the GAC did not support formulation 1 over formulation 2 – because of the differences in national laws – how should the GNSO take that into consideration. The task force's position was based on an attempt to achieve consistency with national laws on a global basis. It was agreed that the topic be discussed directly with the Australian representative. Jordyn Buchanan suggested flagging to Council that a range of view points be presented. Marilyn Cade proposed requesting Council to provide the task force with feedback on its respond to the GAC communiqué. 1.2 Recent GNSO Council meeting 12 April: Purpose Jordyn Buchanan stated that the GNSO Council approved formulation 1, (18 to 9. votes) with the original language the task force provided while formulation 2 was edited, the language was considered, but not accepted by the Council. The task force had requested Council for advice on how to proceed with the two formulations provided and the council vote would indicate the expectation was that the task force move forward on formulation 1. The Secretariat would circulate the draft minutes of the Council meeting on 12 April 2006 to the task force. Marilyn Cade noted that all task force members should read the discussion, including the comments by the GNSO Council chair who suggested that the definition was not cast in concrete and could be changed as the work progressed. 2. Inclusion of Avri Doria, Nominating Committee appointee from the Council Jordyn Buchanan welcomed Avri Doria to the task force but commented that people should be appointed as full participants of the task force and if there was any ambiguity in the ICANN bylaws General Counsel's advice should be sought on the issue. Marilyn Cade mentioned that there had been a previous precedent. Amadeu Abril l Abril was a nominating committee appointee and member of the WHOIS task force 2, but abstained when it came to voting. Marilyn Cade suggested that the task force seek Council's clarification. Avri Doria commented that in the mean time she would refrain from voting if there were any votes. It was agreed that the item concerning the lack of the Board vote on national conflict issue arising from the GNSO Council minutes 18 August 2005 be deferred to the next meeting. Marilyn Cade proposed requesting the staff to follow up by email on the status. Item 3 Ongoing Task Force chairing. Jordyn Buchanan commented, as indicated on the mailing list, that he had left Register.com and was no longer an ICANN policy participant from the provider side. There were a couple of nominations: - Ross Rader nominated Avri Doria. Clarification from the council was needed on Avri’s role whether as an observer, she could be chair? - Marilyn Cade nominated co-chairs Steve Metalitz and Kathy Kleiman. Ross Rader commented that the bylaws did not make provision for co-chairs. Feedback from Council and the ICANN staff was required to clarify the issues. Liz Williams commented with respect to a nominating committee appointee's participation in a task force that there had been a similar case in the pdp Feb 06 task force and that the nominating committee appointees were entitled to participate as full members of any task force. Further there was no limitation on the nominating committee members being chairs of any group or task force. There was no reason why a nominating committee appointee could not vote. Voting within task force's was to provide a general trend or view, rather than to bind the GNSO Council to take a particular decision. The most recent experience was with Maureen Cubberley, now chair of the pdp Feb 06 task force. The current issue was joining an existing group and there appeared to be no limitation on joining a group after it was formed. The most recent experience with the pdp Feb 06 task force was a good guide. Jordyn Buchanan referred to Bruce Tonkin's language: 4.3. WHOIS task force "Avri Doria expressed interest in becoming involved in the WHOIS task force. Bruce Tonkin commented he did not think there was an issue being an observer with the right to speak during meetings, but like the liaisons, with no vote." Liz Williams agreed that Bruce Tonkin should clarify but under the bylaws there was nothing preventing Nominating committee members from participation and standing as chair. Liz Williams commented that although there had been co-chairs for the WHOIS task force in the past, there was no formal provision for co-chairs and suggested appointing a chair supported by people strongly willing to do the work. Marilyn Cade proposed taking up the question up with the legal counsel as the bylaws were often interpreted narrowly or broadly. Liz Williams commented that General Counsel's advice had already been sought and would report back to the group. Kathy Kleiman proposed that Jordyn Buchanan continue as chair. Ross Rader asked to establish a time frame so as to move on with discussing substantive items. Marilyn Cade, seconded by Kathy Kleiman proposed a motion: - that Jordyn Buchanan continue chairing and explore the ability to continue the chairing role through until the conclusion of the task force and that the task force move quickly to explore that long term issue, - that Jordyn Buchanan act as chair while that discussion takes place. Milton Mueller added a friendly amendment with a timeframe: " have till the next task force meeting in two weeks, 9 May 2006", - that Jordyn Buchanan continue chairing and explore the ability to continue the chairing role through until the conclusion of the task force, and that the task force have till the next task force meeting in two weeks, 9 May 2006, to explore that long term issue, - that Jordyn Buchanan act as chair while that discussion takes place. The motion was unanimously accepted by voice vote Jordyn Buchanan added that the task force would continue with the other issues before it at the same time so if he did not continue, the task force would know how to proceed with them. NCUC proposal Kathy Kleiman reported on the NCUC procedural proposal was a clarification of the discussion on the Terms of Reference 2, 1) Upon determination by Council of the Purpose of WHOIS, the TF will review each substantive proposal closely and list the personal data collected in it for Whois. The TF will then closely examine the data fields, particularly data fields holding personal data, and determine whether the data collected is necessary or unnecessary for Whois under the newly-established Purpose. 2) If the TF finds that the data being collected under a Proposal exceeds the data needed, then the TF will list the data fields and set them aside for further evaluation. The Task Force will then further review the data fields to determine whether they serve a necessary business function aside from Whois. 3) The TF will make a recommendation regarding each data field it no longer considers necessary for the Whois database. The TF may recommend that the data field(s) continue to be collected from registrants for business purposes, but not included in Whois. The TF may recommend that the data no longer be required by ICANN for collection at all. 4) Based on its recommendations to Council, the TF will take the additional steps of reviewing the language of the Registrar and Registry Accreditation Agreements on these topics and recommending language changes consistent with the recommendations in #3. 5) The TF will document its findings in a report to Council to accompany whatever substantive proposal the TF agrees upon. Legal Rationale: In the many countries with comprehensive data protection laws, it is a requirement that the purpose of a database be clearly defined, and in turn, operate as a guide and a limitation on the data collected for that database. The procedural steps above are consistent with the legal requirements of the European data protection laws. They also follow the direction to ICANN set out in the Opinion 2/2003 on the Application of the Data Protection Principles to the Whois Directories of the Article 29 Working Party of the EU Data Protection Commissioners: Article 6c of the Directive imposes clear limitations concerning the collection and processing of personal data meaning that data should be relevant and not excessive for the specific purpose. In that light it is essential to limit the amount of personal data to be collected and processed. http://europa.eu.int/comm/justice_home/fsj/privacy/docs/wpdocs/2003/wp76_en.pdf. http://europa.eu.int/comm/justice_home/fsj/privacy/docs/wpdocs/2003/wp76_en.pdf. Kathy emphasised that it was for the WHOIS purpose and in no way affected data collection of registries and registrars. Suzanne Sene commented that the legal rationale was based on EU law. The previous discussion indicated there were other countries with different approaches. Even in Europe, data protection was balanced with other public policy issues. The GAC was not focusing on privacy alone while this procedural proposal seemed to be. Marilyn Cade asked that whether saying that the focus was not on privacy alone, in the definition of public policy as in the WSIS, would consumer protection and law enforcement be included? Simon Sheard commented that the discussions with the data protection commissioner were purely for the purposes of .name. http://www.ico.gov.uk/eventual.aspx?id=302 Jordyn Buchanan proposed working through Kathy Kleiman's proposal on the WHOIS task force mailing list . Next WHOIS task force call 9 May 2006 13:30 UTC
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