RE: [gnso-thickwhoispdp-wg] A way forward?

[Don Blumenthal <dblumenthal@xxxxxxx>]

Marika,

I'm working from my phone on a plane. Briefly, no issues raised does not mean 
they didn't exist. I also don't agree with the statement that no concrete 
examples exist or can be hypothesized.

More later. Have to turn the phone off

Don

Sent from my phone

-----Original Message-----
From: Marika Konings [marika.konings@xxxxxxxxx]
Received: Tuesday, 15 Oct 2013, 4:56am
To: gnso-thickwhoispdp-wg@xxxxxxxxx [gnso-thickwhoispdp-wg@xxxxxxxxx]
Subject: [gnso-thickwhoispdp-wg] A way forward?

All,

Looking at the different emails that have gone back and forth in the last 
couple of days / weeks, what if we take a step back and look at the facts:

  *   Thick gTLD registries are in operation for many years
  *   The transition of .org from thin to thick happened without any 
significant privacy issues being raised
  *   All new gTLD registries will operate under the thick Whois model
  *   Many of the parties directly affected by a requirement for thick Whois 
are participating in this WG
  *   Public comment forums and public consultations have been held on the 
proposed recommendation and report
  *   No one has been able to formulate a concrete example / hypothesis of what 
potential privacy issues may arise as the result of the transition from thin to 
thick
  *   Most of us are not legal and/or privacy experts, so we may have missed 
something

At the same time:

  *   The WG is recommending that an Implementation Review Team is created to 
consisting of experts from the parties that will be most affected by this 
transition, together with ICANN Staff, to work out the details of the 
implementation & transition plans.
  *   The PDP Manual foresees that 'if the proposed implementation is 
considered inconsistent with the GNSO Council's recommendations, the GNSO 
Council may notify the Board and requests that the Board review the proposed 
implementation. Until the Board has considered the GNSO Council request, ICANN 
Staff should refrain from implementing the policy'.
  *   The EWG memo on data protection considerations provides concrete legal 
guidance in relation to transfer of data requirements

So how if we would translate all this, taken together with the suggestions that 
have been raised on the mailing list, into a recommendation along the following 
lines:

The WG recommends that as part of the implementation process due consideration 
is given to potential privacy issues that may arise from the discussions on the 
transition from thin to thick Whois, including, for example, guidance on how 
the long-standing contractual requirement that registrars give notice to, and 
obtain consent, from each registrant for uses of any personally identifiable 
data submitted by the registrant should apply to registrations involved in the 
transition. Should any privacy issues emerge from these transition discussions 
that were not anticipated by the WG and which would require additional policy 
consideration, the Implementation Review Team is expected to notify the GNSO 
Council of these so that appropriate action can be taken.

Furthermore, should the WG be of the view that it would be helpful to call this 
issue out one more time to allow experts to come forward with concrete examples 
of privacy issues in relation to the transition, you may want to consider 
asking the Board to call this specific issue out when it notifies the GAC of 
its intention to consider these recommendations, as well as in the public 
comment forum that would follow after the adoption of the recommendations by 
the GNSO Council. This would have as an advantage that any issues raised as a 
result could be referred back to the GNSO Council / WG before adoption by the 
ICANN Board. For example:

The WG recommends that following the adoption of this report and 
recommendations by the GNSO Council, the subsequent public comment forum (prior 
to Board consideration) as well as the notification by the ICANN Board to the 
GAC, specifically requests input on any considerations related to the 
transition from thin to thick Whois that would need to be taken into account as 
part of the implementation process.

I hope you consider these suggestions constructive in trying to move forward on 
our work while at the same time recognising some of the concerns expressed and 
ensuring that there are fall-back options built into the next steps of the 
process.

I look forward to receiving your feedback.

Marika