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

[Rick Wesson <rick@xxxxxxxxxxxxxxxxxxxxxxxx>]

Lets see, there was discussion about thick / thin for many years, first, in
the IETF. Then during the development of EPP. Several new whois
replacements were designed in the intervening years and that discussion to
place mainly at ICANN events. Within the registrar community it was
discussed and within the GNSO.

Certainly before deciding the color of the draperies became a PDP we
discussed thick -vs- thin whois models from both a technical and privacy
perspectives.

Just because you didn't participate back in 2002 does not mean the
community didn't think about the issue. There was great discussion on the
role of thick -vs- thin and how EPP would facilitate a thick registry.

remember, thick registries and EPP were an invention of the ICANN
community. We thought a lot about it.

I feel your comments below ignore these facts and as such I have pressed
DELETE. Thanks for playing ICANN trivia =)

-rick




On Thu, Oct 17, 2013 at 3:47 PM, Avri Doria <avri@xxxxxxx> wrote:

> Hi,
>
> I don't think we ever had that choice.  The board decided top-down style,
> that all new gTLDs would be thick.  There never was a PDP on that that I
> recall, it is just one of those things that were decided for us by the
> Board.  It certainly was not a recommendation made by the new gTLD program,
> but using the operational philosophy that if we didn't discuss it, they get
> to do what they wish, they decided all new gTLD MUST be thick.  So thick
> they will be.  This was one of the earliest instances of unilateral
> decisions with regard to new gTLDs to be made by the Board and Staff.
> (though the one to essentially exclude applicants from previous rounds from
> contesting without paying most of a new fee, probably precedes the thick
> decision.
>
> This group has the choice of deciding whether incumbents need to become
> thick.
>
> And this group, I beleive, was charter to discuss about the details of the
> thickness requirement for all gTLDs.
>
> Personally I beleive that if this group had not decided to impose
> thickness on the incumbents, the Board and Sr. Staff would have overruled
> us and would have done it anyway.  But I can't prove that either.
>
>
> avri
>
>
>
> On 17 Oct 2013, at 02:34, Alan Greenberg wrote:
>
> > Not quite how I understood it.
> >
> > I thought (and think) that we have a binary decision.
> >
> > 1. All gTLDs should be thick.
> >
> > 2. All gTLDs need not be thick.
> >
> > In the latter case, nothing would change today, and should we have a new
> round of gTLDs, a decision would need to be made on thick vs thin if that
> distinction is indeed still applicable.
> >
> > Alan
> >
> > At 16/10/2013 09:11 AM, Don Blumenthal wrote:
> >> Rick,
> >>
> >> Thick registries for new gTLDs applies only to the current round, not
> any future open calls. Part of the WG's job was to examine if the
> requirement should carry forward.
> >>
> >> Don
> >>
> >> From: Rick Wesson < Rick@xxxxxxxxxxxxxxxxxxxxxxxx>
> >> Date: Tuesday, October 15, 2013 7:30 PM
> >> To: Amr Elsadr <aelsadr@xxxxxxxxxxx>
> >> Cc: Thick Thin PDP < gnso-thickwhoispdp-wg@xxxxxxxxx>
> >> Subject: Re: [gnso-thickwhoispdp-wg] in preparation for the call
> tomorrow
> >>
> >> Amr
> >>
> >> All new gTLDs are thick by design. If you want to reexamine this, we
> would need to reexamine the ticck model which IMNSHO has been settled and
> is not within the scope of our current charter. We are to examin transition
> only.
> >>
> >> The data is published, the only relevant issue is the location of the
> entity doing the publishing.
> >>
> >> -rick
> >>
> >>
> >>
> >> On Tue, Oct 15, 2013 at 6:47 AM, Amr Elsadr <aelsadr@xxxxxxxxxxx>
> wrote:
> >> 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
> at http ://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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