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

  • To: Avri Doria <avri@xxxxxxx>
  • Subject: Re: [gnso-thickwhoispdp-wg] missing recommendation in 7.1
  • From: "Mike O'Connor" <mike@xxxxxxxxxx>
  • Date: Fri, 20 Sep 2013 10:57:54 -0500

i think maybe i need to put all the stuff in one post.

1) we put a big-R recommendation to do the legal review in 7.1.  here's the 
language that Volker proposed with some rough draft "sequence" language in 
brackets.

> We recommend that the ICANN Board request an independent legal review to be 
> undertaken [before transition to thick whois] on the privacy implications of 
> a transfer of registrant data between jurisdictions.

2) we beef up the body of the report to support that recommendation -- the 
language is already there, i just think it ought to be moved down into a more 
recommendation-focused paragraph.  again rough-draft "sequence" language in 
brackets.

> page 30:  "Again, these questions must be explored in more depth by ICANN 
> Staff [before transition to thick whois], 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."

3) we put a version of your little-r recommendation in section 7.3

> 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.




On Sep 20, 2013, at 9:24 AM, Avri Doria <avri@xxxxxxx> wrote:

> 
> 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
>>>>>>> 
>>>>>>> 
>>>>>>> 
>>>>>> 
>>>>>> PHONE: 651-647-6109, FAX: 866-280-2356, WEB: 
>>>>>> www.haven2.com
>>>>>> , HANDLE: OConnorStP (ID for Twitter, Facebook, LinkedIn, etc.)
>>>>>> 
>>>>>> 
>>>>> 
>>>> 
>>>> 
>>>> -- 
>>>> Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung.
>>>> 
>>>> Mit freundlichen Grüßen,
>>>> 
>>>> Volker A. Greimann
>>>> - Rechtsabteilung -
>>>> 
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>>> 
>>> 
>> 
>> 
>> PHONE: 651-647-6109, FAX: 866-280-2356, WEB: www.haven2.com, HANDLE: 
>> OConnorStP (ID for Twitter, Facebook, LinkedIn, etc.)
>> 
> 
> 


PHONE: 651-647-6109, FAX: 866-280-2356, WEB: www.haven2.com, HANDLE: OConnorStP 
(ID for Twitter, Facebook, LinkedIn, etc.)

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