I agree with others that we should/could use this opportunity to modernize this language before incorporating it in to the bylaws.  As has been said, this could also be a WS2 effort.

As an example, enumerating the various WHOIS contact objects is not helpful, given that past community work examined deprecating the billing contact, folding it in to the admin function, or collapsing all records in to a single contact (OPOC, anyone?).  Future PDPs could revisit these issues, or create new contact objects that would be absent from the bylaws.  And RDS would completely reshuffle the deck.

We should also be mindful that “unrestricted” access would theoretically prohibit anti-abuse measures like CAPTCHA to mitigate WHOIS data harvesting, and “public access to accurate and complete” data might be read to invalidate proposals for “gated access” in RDS.

For these reasons, I appreciate Bruce’s alternative language as an effort to ensure that future WHOIS/RDS work is not handcuffed by overly-narrow bylaws.

Thanks—

J.


From: <accountability-cross-community-bounces@icann.org> on behalf of Steve DelBianco <sdelbianco@netchoice.org>
Date: Wednesday, September 2, 2015 at 3:20
To: Nigel Roberts <nigel@channelisles.net>, "accountability-cross-community@icann.org" <accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] Proposed WHOIS language

Nigel — Guess I should have reminded everyone that the CCWG version started with the existing Affirmation of Commitments (link), then we added the OECD privacy guidelines.  Here is the AoC language:

9.3.1 ICANN additionally commits to enforcing its existing policy relating to WHOIS, subject to applicable laws. Such existing policy requires that ICANN implement measures to maintain timely, unrestricted and public access to accurate and complete WHOIS information, including registrant, technical, billing, and administrative contact information. One year from the effective date of this document and then no less frequently than every three years thereafter, ICANN will organize a review of WHOIS policy and its implementation to assess the extent to which WHOIS policy is effective and its implementation meets the legitimate needs of law enforcement and promotes consumer trust.

From: <accountability-cross-community-bounces@icann.org> on behalf of Nigel Roberts
Date: Wednesday, September 2, 2015 at 3:28 AM
To: "accountability-cross-community@icann.org"
Subject: Re: [CCWG-ACCT] Proposed WHOIS language

I like Bruce's MUCH better.

The CCWG version is self-inconsisent.

In the first sentence it talks about "subject to applicable laws" while
in the very next sentence proceeds to set out a proposition that, at
least on the most commonly understood construction, would be
incompatible with the laws of 30 or so countries (The EU and the EEA
states), and for that reason, I object to it.

Nigel



On 09/02/2015 02:31 AM, Steve DelBianco wrote:
Thanks, Bruce.  For comparison purposes, I pasted the CCWG’s proposed
language below your text.

Bruce Tonkin
Date: Tuesday, September 1, 2015 at 9:24 PM
Subject: [CCWG-ACCT] Proposed WHOIS language

Below is some suggested language regarding WHOIS reviews for
consideration by the CCWG when considering what to incorporate into the
bylaws regarding the AoC reviews.

Note the Board has no plans to cancel the current AoC - so the language
in the AoC -  still stands until the community and NTIA wish to change it.

This language however tries to contemplate an environment where we are
introducing a new gTLD Directory Service as a result of policy
development within  the GNSO, as well as most likely continuing to run
the existing WHOIS service for some time.

Regards,
Bruce Tonkin

ICANN commits to enforcing its policy relating to the current WHOIS and
any future gTLD Directory Service, subject to applicable laws, and
working with the community to explore structural changes to improve
accuracy and access to gTLD registration data, as well as consider
safeguards for protecting data.

This Review includes a commitment that becomes part of ICANN Bylaws,
regarding enforcement of the current WHOIS and any future gTLD Directory
Service policy requirements.

The Board shall cause a periodic Review to assess the extent to which
WHOIS/Directory Services policy is effective and its implementation
meets the legitimate needs of law enforcement, promotes consumer trust,
and safeguards data.

The Review Team shall assess the extent to which prior Review
recommendations have been completed, and the extent to which
implementation has had the intended effect.

This periodic Review shall be convened no less frequently than every
five years, measured from the date the Board took action on previous
review recommendations.
_______________________________________________
  From CCWG 2nd draft proposal, page 81:

ICANN commits to enforcing its existing policy relating to
WHOIS/Directory Services, subject to applicable laws. Such existing
policy requires that ICANN implement measures to maintain timely,
unrestricted and public access to accurate and complete WHOIS
information, including registrant, technical, billing, and
administrative contact information.

The Board shall cause a periodic Review to assess the extent to which
WHOIS/Directory Services policy is effective and its implementation
meets the legitimate needs of law enforcement and promotes consumer trust.

This Review will consider the OECD guidelines regarding privacy, as
defined by the OECD in 1980 and amended in 2013.

The Review Team shall assess the extent to which prior Review
recommendations have been implemented.

This periodic Review shall be convened no less frequently than every
five years, measured from the date the previous Review was convened.