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Re: [gnso-thickwhoispdp-wg] missing recommendation in 7.1
- To: "Mike O'Connor" <mike@xxxxxxxxxx>
- Subject: Re: [gnso-thickwhoispdp-wg] missing recommendation in 7.1
- From: Alan Greenberg <alan.greenberg@xxxxxxxxx>
- Date: Fri, 20 Sep 2013 17:01:05 -0400
I can live with the existing words (although
including them would not have been my choice). I
find the term "legal review" more onerous. But perhaps that is just me.
As I said, I cannot believe that the Board will
approve it without getting legal agreement.
Alan
At 20/09/2013 02:51 PM, Mike O'Connor wrote:
hi Alan,
could you expand your reasons for why do you
disagree with a recommendation for a legal review?
isn't that what the privacy and data protection
section of the report already says on 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."
thanks,
mikey
On Sep 20, 2013, at 12:58 PM, Alan Greenberg <alan.greenberg@xxxxxxxxx> wrote:
> If ICANN feels the need to do a legal review
prior to implementation, so be it. We have no
control over that. But I strongly disagree with recommending that.
>
> Alan
>
> At 20/09/2013 01:04 PM, Mike O'Connor wrote:
>> hi Steve
>>
>> i generally try to stay out of the "content"
part of the discussion if i can, but i have to
admit that it seems quite prudent to do a legal
review, along the lines of the one that the
sub-team recommended. i don't quite understand
the value of doing that review *after* the
transition, so i'd just assumed it would come first.
>>
>> i think we could put some speed-pressure on
by elevating our language about the urgency of
the process to cover both the legal review and the transition.
>>
>>
>> On Sep 20, 2013, at 11:54 AM, "Metalitz, Steven" <met@xxxxxxx> wrote:
>>
>> > So it is now being proposed that an
independent legal review before transition to
thick Whois be a consensus policy?
>> >
>> > -----Original Message-----
>> > From: Mike O'Connor [mailto:mike@xxxxxxxxxx]
>> > Sent: Friday, September 20, 2013 12:45 PM
>> > To: Metalitz, Steven
>> > Cc: Avri Doria; Thick Whois
>> > Subject: Re: [gnso-thickwhoispdp-wg] missing recommendation in 7.1
>> >
>> > hi Steve,
>> >
>> > the "little-r" "big-R" recommendation talk
is short hand for the idea that section 7.1 is
where our single actual "recommendation" is --
the recommendation to require thick whois.
>> >
>> > section 7.3 is "Additional Observations"
and is set forth as documentation for the
Council or the staff to take further action if
"deemed appropriate and timely." so putting a
recommendation in 7.1 puts it into consensus
policy, putting a recommendation in 7.3 puts in in the "suggestions" pile.
>> >
>> > mikey
>> >
>> >
>> > On Sep 20, 2013, at 11:38 AM, "Metalitz, Steven" <met@xxxxxxx> wrote:
>> >
>> >> Mikey,
>> >>
>> >> I do not share your assumption that the
transition to thick Whois must be delayed
pending a legal review. This is entirely
unsupported by the findings of our report.
>> >>
>> >> 1. "The WG finds that requiring thick
Whois for all gTLD registries does not raise
data protection issues that are specific to thin v. thick Whois. "
>> >>
>> >> 2. "There are currently issues with
respect to privacy related to Whois and these
will only grow in the future..... None of these
issues seem to be related to whether a thick or
thin Whois model is being used. "
>> >>
>> >> 3. "So although privacy issues may
become a substantive issue in the future, and
should certainly be part of the investigation
of a replacement for Whois, it is not a reason
not to proceed with the PDP WG recommending thick Whois for all."
>> >>
>> >> All these quotes are from the conclusion
to section 5.5 of our report. I believe this
text represents a consensus of the participants
in the privacy subgroup of our WG. Don can confirm or correct this.
>> >>
>> >> I encourage everyone to re-read section
5.5. It makes very clear that, based on over a
decade of experience with thick gTLD
registries, including the successful transition
of one of the largest gTLD registries from thin
to thick; the complete absence of any legal
challenges during that time period to the
operation of such registries on privacy
grounds;, and the support of registrars and
registries --- the entities with the greatest
incentive to take seriously the potential legal
exposure involved -- for the thick
model, that there is no privacy- or data
protection-based reason to delay adoption and
implementation of the thick Whois requirement.
>> >>
>> >> This conclusion reflects the thoroughly
discussed and fully negotiated view of those
who participated actively in this WG over the
past year. It should not be set aside or undermined at the last minute.
>> >>
>> >> I continue to disagree as well with your
point 3 for the reasons already thoroughly discussed on this list.
>> >>
>> >> Could you explain what is the difference,
in your view, between a "little-r
recommendation" in section 7.3 and a "big-R
recommendation" in section 7.1, especially
since you propose that both take the form of a
statement that "We recommend....".
>> >>
>> >> Steve
>> >> -----Original Message-----
>> >> From:
owner-gnso-thickwhoispdp-wg@xxxxxxxxx
[mailto:owner-gnso-thickwhoispdp-wg@xxxxxxxxx] On Behalf Of Mike O'Connor
>> >> Sent: Friday, September 20, 2013 11:58 AM
>> >> To: Avri Doria
>> >> Cc: Thick Whois
>> >> Subject: Re: [gnso-thickwhoispdp-wg] missing recommendation in 7.1
>> >>
>> >> 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,
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>> >>
>> >
>> >
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>>
>>
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