Re: [gnso-thickwhoispdp-wg] in preparation for the call tomorrow

[Amr Elsadr <aelsadr@xxxxxxxxxxx>]

Hi Steve,

I agree with most of your assessment except on what the question that needs 
answering. The way I see it is that we shouldn't be asking about exposure of a 
registrants registration data by Registrar in country A as opposed to exposure 
via Registry in country B. It's about the cross jurisdictional transfer of the 
data…, not the exposure. The exposure is the result of the transfer.

The relevance of your question is significant for existing .com registrants 
(for example), but this PDP will also affect all future new gTLDs beyond the 
current round of new ones, and will probably affect new registrants who do not 
yet exist.

Addressing the transfer of the registration data instead of the exposure covers 
both scenarios; the rights afforded to both existing and future registrants by 
legal/privacy protections.

Thanks.

Amr

On Oct 14, 2013, at 11:25 PM, "Metalitz, Steven" <met@xxxxxxx> wrote:

> I have some concerns about this approach.   The registries (especially the 
> ones that would actually be undergoing the transition!) and the registrars 
> are big boys and girls.  They have been on notice for a long time that this 
> transition was under consideration, and indeed several of them have 
> participated actively in our working group.  Their consistent support for the 
> transition speaks volumes.  As our report states, “the fact that it [the WG] 
> can find no public objections from the registry or registrar community 
> indicates that no problems have been identified.”
>  
> In any event, it is not ICANN’s job to look out for the legal interests of 
> registries and registrars.  Its focus should be on looking out for 
> registrants (it goes without saying that ICANN will look out for ICANN and 
> any potential corporate liabilities—which is in itself a reason why Alan’s 
> proposal may not be viable).  So if any legal review needs to be specified, 
> the main question ought to whether a registrant whose Whois data is currently 
> made publicly available  through a registrar in country A would suffer any 
> incremental legal harm or exposure  if the same data were also made publicly 
> available through a (thick) registry in the US, as is the case now with all 
> registrations in US-based thick registries that are sponsored by non-US 
> registrars.   The review should also consider whether the  current 
> contractual framework can be used to ameliorate any harms found or whether it 
> needs to be adjusted to accommodate this.  For example, as an implementation 
> matter, it could be useful for ICANN to provide 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.   See sections 3.7.7.4 through 3.7.7.6 of the RAA (not 
> changed from the 2009 to 2013 versions).    
>  
> Steve
>  
>  
> From: owner-gnso-thickwhoispdp-wg@xxxxxxxxx 
> [mailto:owner-gnso-thickwhoispdp-wg@xxxxxxxxx] On Behalf Of Alan Greenberg
> Sent: Monday, October 14, 2013 3:42 PM
> To: Volker Greimann; Rick Wesson
> Cc: Mike O'Connor; Thick Whois WG
> Subject: Re: [gnso-thickwhoispdp-wg] in preparation for the call tomorrow
>  
> Let me try to describe what *I* think that we need from the "legal review". I 
> make no claim that it would satisfy NCSG not that it is viable (although I 
> think it is).
> 
> We want a high degree of comfort that ICANN, the registry involved, and the 
> registrars involved will not be in violation of privacy legislation if a 
> transition from thick to thin WHOIS is carried out. A sample of registrar 
> should include those sponsoring large a plurality of the applicable 
> registrations as well as a sampling of the larger registrants in 
> jurisdictions with particularly stringent privacy laws (perhaps selected EU 
> countries, Canada, selected Asia-Pacific countries). For registries and 
> registrars, I would suggest that such a comfort level could be reached by 
> consulting with the selected registry and registrars, with the presumption 
> that they will consult their own legal counsels if needed.
> 
> I use term "high degree of comfort" because I do not believe that we can get 
> an iron-clad guarantee - the privacy world is too complex. But I believe that 
> it is sufficient for going forward.
> 
> Should the WG and ICANN staff agree, I would be pleased to try to put this 
> into more formal language.
> 
> Alan
> 
> At 14/10/2013 01:45 PM, Volker Greimann wrote:
> 
> Rich,
> 
> I think you are arguing a different issue here. The only issue we (and 
> therefore the legal review) need to be concerned with is the rights of the 
> parties listed in the whois in their own private details and how they may be 
> affected in a move of their data from whereever they are stored now to the 
> US, not third party rights. This is a greatly reduced scope from whe indeed 
> lunatic scenario you depict. 
> 
> Questions that need to be answered are:
> Do the general registration terms of most registrars cover such a move? I 
> would argue they do already for any registrar I have seen.
> What are the data protection requirements that the registry operator must 
> meet prior to being able to receive the data?
> 
> Best,
> 
> Volker
> 
> 
> 
> Mike,
> 
> Having spent some time in the IETF I find it hard to apply those rules you 
> outlined belwo, here. Our consensus is not about technical issues. 
> 
> Take for instance, the idea that a public record being published in 
> jurisdiction A is now published (publicly) in jurisdiction B and a third 
> party takes issue with the move, though this 3rd party has no relationship to 
> the domain, registrant, nor registrar A or B. Finally a 4th party takes issue 
> with the rights the 3rd party might have should the publishing of this record 
> change from A to B that they incest that ICANN review all 209 international 
> laws on privacy and show how the 3rd party might be effected should A or B 
> land in any one of those places -- and provide a report to the GNSO 
> describing the 3rd parties effected rights.
> 
> In the IETF we would have ignored such lunacy, because its not technical. 
> someone from the working group, probably the chair, would have sat these 
> folks down and asked them to focus one a more productive side of the problems 
> at hand. A good chair probably would have pushed for a binary answer to the 
> issue at hand. So that those consuming our work product would have an answer 
> -- preferably in binary.
> 
> Since this is not the IETF, we might check our charter, which makes no 
> mention of rough consensus though many of the terms you defined are defined 
> athttp://gnso.icann.org/en/issues/thick-whois-charter-08oct12-en.pdf
> 
> Finally, I'd like to point out that the IETF way you suggested is orthoginal 
> to the designations in our charter and I advise you remind the working group 
> of the charter and to follow those rules we have agreed to.
> 
> -rick
> 
>        
> 
> 
> 
> 
> On Mon, Oct 14, 2013 at 9:39 AM, Mike O'Connor <mike@xxxxxxxxxx> wrote:
> hi all,
> 
> i've been reflecting on where we're at and have arrived at two key words i 
> want us to focus on in preparation for the call tomorrow -- "objections" and 
> "precision"
> 
> we've heard back from the General Counsel that they would like to see more 
> precision in our request for a legal review.  i wrote a response on the spur 
> of the moment that i'm regretting now. 
> 
> homework assignment:  try to come up with language that clarifies what we are 
> asking the GC to do, and also come up with language that limits the scope of 
> that effort to something that is achievable within reasonable time and budget.
> 
> i'm feeling the need to draw this part of the conversation to a close and am 
> hoping that we can get this last visit to the privacy issue completed on the 
> call tomorrow.  if, at the end of the call, we still are not there, i'm going 
> to ask the group's permission to go off and do the duty of the Chair, which 
> is to reflect on the state of our work with the following structure in mind. 
> 
> IETF - Consensus
> 
>   Credo
> 
>      Do's
>         decisions are made by (more or less) consent of all participants
>         the actual products of engineering trump theoretical designs
> 
>      Don'ts
>         we don't let a single individual make the decisions
>         nor do we let the majority dictate decisions
>         nor do we allow decisions to be made in a vacuum without practical 
> experience
> 
>      Require rough, not full consensus
>         If the chair of a working group determines that a technical issue 
> brought forward by an objector has been truly considered by the working 
> group, and
>         the working group has made an informed decision that the objection 
> has been answered or is not enough of a technical problem to prevent moving 
> forward,
>           the chair can declare that there is rough consensus to go forward, 
> the objection notwithstanding.
> 
>   Lack of disagreement is more important than agreement
>   _determining_ consensus and _coming to_ consensus are different things than 
> _having_ consensus
>      Consensus is not when everyone is happy and agrees that the chosen 
> solution is the best one
>      Consensus is when everyone is sufficiently satisfied with the chosen 
> solution, such that they no longer have specific objections to it
>      Engineering always involves a set of tradeoffs.  It is almost certain 
> that any time engineering choices need to be made, there will be options that 
> appeal to some people that are not appealing to some others.  The key is to 
> separate those choices that are simply unappealing from those that are truly 
> problematic.
> 
> 
> this outline is lifted from an IETF draft which seems like a good guideline.  
> the full draft can be found here.
> 
> http://tools.ietf.org/html/draft-resnick-on-consensus-05
> 
> this is why i want us to focus on "objections" and "precision" on our call.
> 
> mikey
> 
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> 
> -- 
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> Mit freundlichen Grüßen,
>  
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