The existing words do not include the
parenthetical [before transition to Thick
Whois]. That is not what the report already says on page 30.
-----Original Message-----
From: Alan Greenberg [mailto:alan.greenberg@xxxxxxxxx]
Sent: Friday, September 20, 2013 5:01 PM
To: Mike O'Connor
Cc: Metalitz, Steven; Avri Doria; Thick Whois
Subject: Re: [gnso-thickwhoispdp-wg] missing recommendation in 7.1
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 -
> >> >>>>>>
> >> >>>>>> Key-Systems GmbH
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