Re: [gnso-thickwhoispdp-wg] missing recommendation in 7.1

[Avri Doria <avri@xxxxxxx>]

Hi,

All lovely ideas, but they don't meet the need to put the privacy issues on the 
front burner.

avri

On 20 Sep 2013, at 09:24, Mike O'Connor wrote:

> [hijacking this thread back to its original topic]
> 
> hi Avri,
> 
> i, for one, think turnabout on the way to consensus is one of the very best 
> things about ICANN.  thanks Avri
> 
> here's language describing that legal review as it stands (this is the last 
> paragraph of Discussion section of 5.5 Data Protection
> 
> page 30:  "Again, these questions must be explored in more depth by ICANN 
> Staff, starting with the General Counsel’s Office, and by the community. As 
> an added benefit, analyses concerning change of applicable laws with respect 
> to transition from a thin to a thick environment also may prove valuable in 
> the event of changes in a registry’s management, presumably an increasing 
> likelihood given the volume of new gTLDs on the horizon."
> 
> i *think* that's the only place it shows up in the current draft, which means 
> that while we worked hard on the language, it's not really a recommendation 
> right now and kindof buried down in the details.  it's also vague on the 
> sequencing -- but i have been presuming that the legal review would have to 
> happen before the conversion and would be comfortable clarifying that.
> 
> from a report-drafting standpoint if we pursue this direction, i think we'd 
> want to do a few minor revisions to provide support for that big-R 
> recommendation that's being proposed.
> 
> - clarify that sequence
> 
> - move that paragraph from the "Discussion" section of 5.5 down to the 
> "Conclusions" section to provide stronger underpinnings for the recommendation
> 
> all pretty easy to do from a mechanical report-drafting point of view, if the 
> group agrees on that approach.
> 
> good work.  carry on,
> 
> mikey
> 
> 
> 
> 
> On Sep 19, 2013, at 10:47 AM, Avri Doria <avri@xxxxxxx> wrote:
> 
>> 
>> Hi,
>> 
>> Forgive me for doing this bit of turnabout: is this legal review something 
>> that would occur before the thick whois for incumbent registries was put 
>> into effect?  
>> 
>> At first blush, if this was combined with a 7.3. recommendation for a full 
>> Issues report, I might be able to accept it and convince the NCSG that this 
>> was a good compromise.
>> 
>> thanks
>> 
>> avri
>> 
>> 
>> On 19 Sep 2013, at 11:14, Volker Greimann wrote:
>> 
>>> Hi all,
>>> 
>>> I still find Avri's proposed language too broad, so I tried my hand at a 
>>> quick rewrite. Probably still needs a little fiddling, but more in the 
>>> direction what I could support, although putting this into 7.1 is a bit 
>>> iffy to me.
>>> The WG discussed many of the issues involved in moving from having a 
>>> registration currently governed under the privacy rules by one jurisdiction 
>>> in a thin whois to another jurisdiction, the jurisdiction of the Registry 
>>> in a thick whois.  The WG did not feel it was competent to reach a final 
>>> conclusion on these issues involving international privacy laws. 
>>> The Working group therefore makes the following recommendation:
>>> 
>>> . We recommend that the ICANN Board 
>>> request an independent legal review to be undertaken on the privacy 
>>> implications of a transfer of registrant data between jurisdictions.
>>> Reasons: If we could not find ourselves competent to decide a small matter 
>>> like the transfer of private data, how can we expect another PDP to tackle 
>>> an even broader issue of privacy issues surrounding WHOIS in general? For 
>>> the purposes of this WG, the determination that we were unable to reach a 
>>> final conclusion on could and should be resolved by independent counsel. 
>>> 
>>> While a new PDP on WHOIS and privacy issues is certainly something worth 
>>> considering and something I would welcome, I do not feel that this WG needs 
>>> to make that recommendation as it would be much broader than the smaller 
>>> issue we were tasked to tackle.
>>> 
>>> Volker
>>> 
>>>> Hi,
>>>> 
>>>> For me this needs to be a Recommendation (7.1, big R), not an extra 
>>>> consideration.  This issue was within the purview of the group and the 
>>>> group bailed on it for lack of capability.  Fine, then lets step and 
>>>> recommend that those that have the capability do so.    In this age of 
>>>> world attention on privacy issues, I can't beleive we are still dancing 
>>>> around the point.
>>>> 
>>>> I am currently working on getting the NCSG to endorse this.  As the 
>>>> alternate chair of the NCSG Policy committee I beleive this is something 
>>>> that will be supported by the NCSG.  I will personally submit a minority 
>>>> position and work to get the NCSG to endorse it, if this recommendation is 
>>>> not included in 7.1.  For myself at this point, I will reject the entire 
>>>> report without this, as the report is incomplete without this as a primary 
>>>> Recommendation.  To my mind NCSG would be shirking it responsibilities if 
>>>> we let this report go out without such a recommendation.
>>>> 
>>>> Incidentally, my impression from the list discussion was that there was 
>>>> support, but that wording needed changing.  It was changed.
>>>> 
>>>> I understand that there are those who may be playing divide and conquer 
>>>> games behind the scenes, claiming that my position will hurt NCSG's 
>>>> reputation.  I have bcc'e d the NCSG on this note so that they themselves 
>>>> can determine if it is reputation damaging.  There are others who are are 
>>>> cynically claiming that I am going against the bottom-up model by 
>>>> insisting on privacy considerations.  I reject those claims.
>>>> 
>>>> avri
>>>> 
>>>> 
>>>> 
>>>> On 19 Sep 2013, at 10:25, Mike O'Connor wrote:
>>>> 
>>>> 
>>>>> hi all,
>>>>> 
>>>>> i may have been the culprit here.  Avri, my interpretation of the 
>>>>> desultory conversation on the list was that there *wasn't* much support 
>>>>> for the idea.  and then when you didn't show up on last week's call to 
>>>>> pitch/push it, i forgot to bring it up.  my bad -- sorry about that.
>>>>> 
>>>>> let's try to have a vigorous conversation about this on the list, and 
>>>>> drive to a conclusion on the call next week.
>>>>> 
>>>>> Avri, you and i had a one-to-one email exchange about this and i 
>>>>> suggested that this recommendation might fit better, and be more widely 
>>>>> accepted, if it was in the privacy and data protection part of our report 
>>>>> (Section 7.3).  could you give us an indication of whether acceptance of 
>>>>> this version of the recommendation is required?  in more casual terms, is 
>>>>> there any wiggle room here?  i think it would be helpful for the rest of 
>>>>> the group to know the framework for the conversation.
>>>>> 
>>>>> carry on folks,
>>>>> 
>>>>> mikey
>>>>> 
>>>>> 
>>>>> On Sep 18, 2013, at 6:39 PM, Avri Doria 
>>>>> <avri@xxxxxxx>
>>>>> wrote:
>>>>> 
>>>>> 
>>>>>> Hi,
>>>>>> 
>>>>>> I was disappointed to not see the recommendation for the Issues report 
>>>>>> included in 7.1.    I thought we had discussed it on this list and thee 
>>>>>> had been little opposition, though there was some.  I cannot support 
>>>>>> this report with a strong recommendation for follow on work on the 
>>>>>> Privacy issues.  And, contrary to what others may beleive, I do not see 
>>>>>> any such work currently ongoing in ICANN.  I think it i s unfortunate 
>>>>>> that we keep pushing off this work and are not willing to face it 
>>>>>> directly.  I beleive I have the support of others in the NCSG, though 
>>>>>> the content of a minority statement has yet to be decided on.
>>>>>> 
>>>>>> While still somewhat inadequate, I am ready to argue for going along 
>>>>>> with consensus on this document if the following is included in 7.1:
>>>>>> 
>>>>>> 
>>>>>> The WG  discussed many of the issues involved in moving from having a 
>>>>>> registration currently governed under the privacy rules by one 
>>>>>> jurisdiction in a thick whois to another jurisdiction, the jurisdiction 
>>>>>> of the Registry in a thick whois.  The WG did not feel it was competent 
>>>>>> to fully discuss these privacy issues and was not able to fully separate 
>>>>>> the privacy issues involved in such a move from the general privacy 
>>>>>> issues that need to be resolved in Whois.  there was also concern with 
>>>>>> intersection with other related Privacy issues that ICANN currently 
>>>>>> needs to work on.  The Working group therefore makes the following 
>>>>>> recommendation:
>>>>>> 
>>>>>> . We recommend that the ICANN Board request a GNSO issues report to 
>>>>>> cover the issue of Privacy as related to WHOIS and other related GNSO 
>>>>>> policies.
>>>>>> 
>>>>>> 
>>>>>> 
>>>>>> Thanks
>>>>>> 
>>>>>> avri
>>>>>> 
>>>>>> 
>>>>>> 
>>>>> 
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>>>>> 
>>>> 
>>> 
>>> 
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>> 
>> 
> 
> 
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