November 2007 - council - lists.icann.org

NCUC Halloween Vote on Whois
by Robin Gross 05 Nov '07

05 Nov '07

ICANN Non-Commercial Users Constituency (NCUC) Explanation of Votes Cast on 31 October 2007 RE: WHOIS Motions before GNSO Council On Motion #1 The Non-Commercial Users Constituency (NCUC) supported OPoC at the time it originally passed by the GNSO Whois Task Force in the Spring 2006. But even at that time, OPoC was a compromise of NCUC’s policy objectives and did not fully protect the legitimate privacy rights of Internet users. Since the time the GNSO Council approved OPoC, the proposal took a radical direction, including attempts to create a mechanism to force the disclosure of personal information in cases where the law would not permit disclosure. Fortunately, there was no consensus within the GNSO to accept that over-reaching approach. Without a consensus within the GNSO on how much access to private information the OPoC regime would provide, Motion #1 punted these difficult, yet extremely important policy decisions to the ICANN staff to decide. NCUC did not believe it was appropriate to send policy questions to ICANN staff to sort out. NCUC hoped to reach agreement within the GNSO to amend Motion #1 such that appropriate oversight and policy guidance could be given to the ICANN staff with respect to the implementation of OPoC. Without such guidance and oversight, NCUC believed that the recent macerations to OPoC had poisoned the proposal to the extent that it may be even worse than the status quo for privacy in some cases. Without agreement from GNSO constituencies to amend Motion 1, NCUC could not vote in favor of Motion #1 as drafted. On Motion #2 NCUC supported Motion #2 to conduct studies on whois because we believe there are important facts to be explored regarding the need for privacy protection of Whois data. Useful studies could also be done regarding the effects on crime prevention in country-code top-level domains that shield some contact data in order to protect the privacy rights of Internet users. NCUC does not believe, however, that waiting for outcomes of studies on Whois should prevent efforts to reform the policy in order to bring it into compliance with national law and international agreements. ICANN has an obligation to answer to the international legal community and promptly work towards remedying the conflict between law and ICANN policy. Besides the privacy concerns, current ICANN policy on the matter places Registrars and Registries at risk for potential legal liability for violations of European consumer protection laws or national privacy laws. On Motion #3 NCUC strongly supported Motion #3 because it provided a mechanism to spur uncompromising parties to the negotiating table on Whois in good faith. Without a mechanism to bring to the negotiating table parties who already have what they want, there is no incentive to voluntarily agree to any changes to the status quo with whois. NCUC continues to believe that “sun-setting” the non-consensus policy of Whois is the best course of action for the ICANN Board and the GNSO. There is no legitimate rationale for retaining policies that lack the broad support of the ICANN community, such as Whois. Whois never held a consensus position within the GNSO and it is a tragic mistake to continue with such a non-consensus policy, particularly when ICANN has been warned by national and regional data protection commissioners that Whois violates a number of national laws and international agreements. Reform of Whois is badly and immediately needed to protect the privacy rights of Internet users, bring ICANN into compliance with international law, and remove the legal risk on Registrars and Registries for violations of law imposed by ICANN contracts. NCUC incorporates into this statement, its endorsement of the 30 October 2007 letter written by NCUC member and online privacy expert EPIC and other concerned individuals and organizations to the ICANN Board on the need for Whois reform. Signed, NCUC GNSO Policy Councilors: Robin Gross, Norbert Klein, & Mawaki Chango 4 November 2007

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Reasons for my vote on Whois
by Avri Doria 05 Nov '07

05 Nov '07

Statement explaining nomcom appointee Avri Doria's vote on the Whois PDP. I voted for motions 1 and 3 and against 2. A lot of give and take had gone into the OPoC proposal and I felt that it deserved a chance for implementation. And though there were a few large issues that needed to be worked out, for example the reveal function and the authorisation model for levels of access, I felt that a solution was still possible with more work. My vote for motion 1 also reflects my belief that the process of implementation, including a genuine iterative process between the staff and council, allows individual issues to be explored at a more practical level and within an implementation context. Sometimes issues that seem intractable as abstract principles become solvable at the practical level. As I have mentioned on several occasions in the council, I do not believe there is a strict line that separates the policy issues from the implementation issues and believe that often the implementation makes implicit policy. This is one of the bases for my belief that working on detailed questions that emerged from an implementation effort would have assisted the council in coming to further consensus on its policy differences. I have mixed feelings regarding Motion 2. I certainly support the goal of ending this PDP, especially if we are not trying to complete work on OPoC. As for further studies, I can see a role for professionally done studies and surveys, which are scientifically well formed, methodologically sound and statistically valid. Part of the basis for these sorts of studies requires a good understanding of the requirements, which involves knowing what questions the study is intended to answer. One concern is that without the strictest rigor in defining studies, they often end up as one sided and merely serve to confirm the opinions of the surveyor or of the surveyor's client. I think we all have the experience of seeing competing studies on each side of an issue. I am apprehensive about our ability to deliver on high quality rigorous preparations in the schedule demanded by the motion, especially with our current work load and when we are about to go through the holiday season followed by the initial work on restructuring. One of the reasons given, off line, by some for the rush in initiating the studies was to support the calls being made by the GAC. While I have no difficulty in supporting the GAC on this issue, I do not feel that we need to rush and do not believe they are asking us to rush. Rather, I feel we need to let the dust settle before reengaging in this particular tussle. Now that we have approved this motion, however, I am committed to completing its requirements as well as possible in the time allotted. On motion 3, I believe that Whois is unsuited to the service to which ICANN is putting it and it is no longer needed for its original purpose as was discussed in a paper included in the appendices of the Task Force report. Given that there is no consensus on the service it is being required to provide and that it is not fit for this purpose, I believe it should be retired from service. I also strongly believe that Whois causes more harm to the general public then it prevents. And while I understand that investigative agencies, both public and private, find it a useful public database in their hunt for a few miscreants, I do not not believe that this warrants harm against the majority of registrants who would never intentionally misuse their domain name. I think the harm this tool causes to global civil liberties is far too serious for ICANN to continue to require its use.

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AWOL and the reform proposals
by Philip Sheppard 02 Nov '07

02 Nov '07

Fellow Council members, many apologies for missing the meetings in LA this week but alas my duties as IPRA president intervened. And I was flying during our voting meeting so could not dial-in without bankrupting the BC. Anyway, it seems that some good progress was made on many issues (though I note not on the politically sensitive issue of IGOs). GNSO reform The reform proposals pose some fundamental challenges to the heritage we guard known as the bottom-up process. While we may differ in outcomes with respect to constituency boundary changes, it may be productive to have debate on some of the wider issues of the reform proposals. In particular it would be good to know fellow Council members views on the objective that Council should manage the PDP but not decide (if I may paraphrase). This objective is separate to its implementation (eg work groups ) for which I see little need to debate as we do them anyway when we believe they are right to do. But I am concerned that the objective may weaken Council by diminishing the incentive for participation. It would be good to learn of opinions on this. Philip

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RyC Councilor Statement re. Whois Vote
by Gomes, Chuck 02 Nov '07

02 Nov '07

Liz, Here is a joint statement from Cary, Edmon and I regarding our votes regarding the Whois motions. Chuck Gomes "This message is intended for the use of the individual or entity to which it is addressed, and may contain information that is privileged, confidential and exempt from disclosure under applicable law. Any unauthorized use, distribution, or disclosure is strictly prohibited. If you have received this message in error, please notify sender immediately and destroy/delete the original transmission."

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RE: [council] AWOL and the reform proposals
by Tim Ruiz 02 Nov '07

02 Nov '07

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Whois PDP Vote - by-law requirements
by Avri Doria 02 Nov '07

02 Nov '07

Hi, At today's meeting we discussed the following by-law requirement: > The Staff Manager will be present at the final meeting of the > Council, and will have five (5) calendar days after the meeting to > incorporate the views of the Council into a report to be submitted > to the Board (the "Board Report"). The Board Report must contain at > least the following: > > a. A clear statement of any Supermajority Vote recommendation > of the Council; > > b. If a Supermajority Vote was not reached, a clear statement > of all positions held by Council members. Each statement should > clearly indicate (i) the reasons underlying each position and (ii) > the constituency(ies) that held the position; In order to complete this report within 5 days, Liz needs for all council members to get statements in to her by Monday morning Start of Business UTC. As was discussed in today's meeting, joint statements by several council members are fine. Note: we have a changeover of council members this weekend. I think the requirement only applies to council members who were members at the time of the vote, even if they are no longer council members. Additionally, however, i don't think there is a necessary prohibition against including a statement by a new council member, but if one does, i think this fact should be flagged. thanks a.

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Domain Tasting PDP; Request for appointment of constituency representatives and for constituency statements
by Olof Nordling 01 Nov '07

01 Nov '07

To the GNSO Constituency Chairs: Dear all, A PDP on domain tasting was launched through the adoption of the below resolutions at the 31 October GNSO Council meeting. I draw your attention to the requirements to appoint a representative of your constituency and to submit a constituency statement on the subject matter within 35 days, i.e. no later than 5 December 2007. The PDP will be conducted with "a committee of the whole" and observers are invited and welcome. A mailing list for the PDP will be established in the near future. Very best regards Olof Resolution 2. Whereas the issues report on Domain Tasting http://gnso.icann.org/issues/domain-tasting/gnso-domain-tasting-report-14jun 07.pdf has been released and discussed and Whereas, the GNSO Council acknowledges the Final Outcomes Report of the ad hoc group on Domain Tasting, http://gnso.icann.org/drafts/gnso-domain-tasting-adhoc-outcomes-report-final .pdf the Council hereby initiates a Policy Development Process, and pursuant to Sections 4 and 8 of Annex A of the Bylaws, The GNSO council resolves to initiate a PDP to address the issues set forth in the Issues Report by Staff and in the Outcomes Report of the ad hoc group and encourages staff to apply ICANN's fee collections to names registered and subsequently deregistered during the add-grace period. Resolution 3. Whereas, the GNSO Council has resolved to initiate a Policy Development Process on Domain Tasting, and pursuant to Sections 4 and 8 of Annex A of the Bylaws, resolves as follows: 1. To request that each constituency appoint a representative to solicit the constituency's views on the issues presented in the Issues Report by Staff and in the Outcomes Report of the ad hoc group. Each such representative is asked to submit a Constituency Statement to the ICANN staff manager within thirty-five (35) calendar days of this resolution. 2. To request that ICANN Staff take all Constituency Statements, the two prior reports, and other information and compile (and post on the Comment Site) an Initial Report within fifty (50) calendar days of this resolution. 3. Thereafter, the PDP shall follow the provisions of Item 9 of Annex A of the Bylaws, in creating a Final Report for Council.

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GAC response on new gTLDs
by Bruce Tonkin 01 Nov '07

01 Nov '07

Hello All, Below is from the GAC Communiqué with respect to new gTLDs: "The GAC appreciates the work done by the GNSO regarding the proposal for principles, recommendations and implementation guidelines for new gTLDs. After initial analysis the GAC draws attention to the fact that the proposal does not properly take into account paragraph 2.2 in the GAC principles regarding new gTLDs, in particular on the avoidance of country names. In practice some countries would not be in a position to avail themselves of the proposed objection mechanism especially those not participating in ICANN activities. The GAC will monitor the implementation of the new gTLD policy and the new gTLD application round and will provide further input as necessary. GAC members also agree to reflect on the need to provide advice on the final report by the GNSO on the introduction of new generic top level domains. " Regards, Bruce Tonkin

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GAC advice on WHOIS
by Bruce Tonkin 01 Nov '07

01 Nov '07

Hello All, The following advice in the GAC communiqué just presented in the ICANN Public Forum relates to WHOIS: "The GAC welcomes the opportunity to respond to the "draft ICANN Procedure for Handling WHOIS Conflicts with National Privacy Laws". Due to the complexity of this issue related to the diversity of national policies and procedures among GAC members the GAC does not believe a uniform process is workable and accordingly the interim solution from the GAC's San Juan communiqué should be the basis of resolving any potential conflict: ... specific cases should be referred to the relevant national government for advice on the authority of the request for derogation from the ICANN gTLD WHOIS policy. The GAC reiterates its recommendation outlined in the GAC WHOIS principles that a study on uses and misuses of WHOIS data should be undertaken by ICANN and is prepared to contribute to the elaboration of the terms of reference of such a study. " Regards, Bruce Tonkin

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correction: GNSO Council resolutions 31 October 2007
by GNSO.SECRETARIAT＠GNSO.ICANN.ORG 01 Nov '07

01 Nov '07

Dear Council Members, Correction, Resolution 1 did not pass, 12 votes in favour, 8 votes against, 5 abstentions (see the detailed vote below). Please let me know if you have any questions. Thank you. Kind regards, Glen -------------------------------------------------------------- GNSO Council Open Meeting in LA agenda http://gnso.icann.org/meetings/agenda-31oct07.shtml also see: http://losangeles2007.icann.org/node/61 Resolution 1 Whereas, the Council has previously requested and received both the 15 June 2007 "GNSO Issues Report on Dispute Handling for IGO Names and Abbreviations" http://gnso.icann.org/issues/igo-names/issues-report-igo-drp-15jun07.pdf and the 28 September 2007 "Staff Report on Draft IGO Domain Name Dispute Resolution Procedure;" http://gnso.icann.org/drafts/gnso-igo-drp-report-v2-28sep07.pdf and Whereas, the Council believes that further work on the draft IGO Domain Name Dispute Resolution Procedure is appropriate before voting on whether to initiate a policy development process on this issue; and Whereas, the Intellectual Property Constituency is willing to lead a small ad hoc group to review and consider a proposed draft dispute resolution procedure, Now, therefore, be it resolved that the Council authorizes the creation of a small ad hoc group of interested informed and representative stakeholders and members of the GAC to review, consider and propose as appropriate revisions to the Draft IGO Domain Name Dispute Resolution Procedure set forth in the Staff Report, and instructs the ad hoc group to report to the Council with its recommendations not later than 15 February 2008. This resolution did not pass. 12 votes in favour Ute Decker, Kristina Rosette, Cyril Chua, Tony Holmes, Tony Harris, Greg Ruth, Jon Bing, Avri Doria, (one vote each) Adrian Kinderis, Ross Rader (2 votes each) 8 Votes against: Robin Gross, Norbert Klein, (one vote each) Cary Karp, Chuck Gomes, edmon Chung (2 votes each) 5 Abstentions: Mike Rodenbaugh, Bilal Beiram, Mawaki Chango (one vote each) Tom keller (2 votes) Total 25 votes Philip Sheppard and Sophia Bekele - Absent (one vote each) Resolution 2. Whereas the issues report on Domain Tasting http://gnso.icann.org/issues/domain-tasting/gnso-domain-tasting-report-14ju… has been released and discussed and Whereas, the GNSO Council acknowledges the Final Outcomes Report of the ad hoc group on Domain Tasting, http://gnso.icann.org/drafts/gnso-domain-tasting-adhoc-outcomes-report-fina… the Council hereby initiates a Policy Development Process, and pursuant to Sections 4 and 8 of Annex A of the Bylaws, The GNSO council resolves to initiate a PDP to address the issues set forth in the Issues Report by Staff and in the Outcomes Report of the ad hoc group and encourages staff to apply ICANN's fee collections to names registered and subsequently deregistered during the add-grace period. Resolution 3. Whereas, the GNSO Council has resolved to initiate a Policy Development Process on Domain Tasting, and pursuant to Sections 4 and 8 of Annex A of the Bylaws, resolves as follows: 1. To request that each constituency appoint a representative to solicit the constituency's views on the issues presented in the Issues Report by Staff and in the Outcomes Report of the ad hoc group. Each such representative is asked to submit a Constituency Statement to the ICANN staff manager within thirty-five (35) calendar days of this resolution. 2. To request that ICANN Staff take all Constituency Statements, the two prior reports, and other information and compile (and post on the Comment Site) an Initial Report within fifty (50) calendar days of this resolution. 3. Thereafter, the PDP shall follow the provisions of Item 9 of Annex A of the Bylaws, in creating a Final Report for Council. Resolution 4. WHEREAS; 1. The GNSO Council has recently received the Whois Working Group final report http://gnso.icann.org/drafts/icann-whois-wg-report-final-1-9.pdf and; 2. The GNSO Council acknowledges that the broad range of stakeholders with interests in this issue has lead to a wide range of views of what the policy issues are and how to best address those policy issues with solutions that can be supported by the consensus of the community, and; 3. The GNSO Council observes that the Working Group failed to reach agreement on several of the key issues identified in the charter of the Working Group, http://gnso.icann.org/issues/whois-privacy/whois-wg/whois-working-group-cha… and; 4. That broadly, the scope of the issues in this area have evolved substantially over the term of this Policy Development Process since it was originally chartered, and; 5. A comprehensive, objective and quantifiable understanding of key factual issues regarding the gTLD Whois system will benefit future GNSO policy development efforts, and; 6. The rights and requirements of natural persons, the legal and business communities, anti-crime and law enforcement and registrars in the areas of privacy, access, enforcement, investigation, consumer protection and research would benefit from future policy development by the GNSO. THEREFORE, Be it resolved that the GNSO Council; 1. Sincerely thanks all of the volunteers, advisors, consultants, staff, stakeholders, observers and constituency participants who have contributed to the GNSO's examination of Whois policy over the last four years, and; 2. Formally ends the Policy Development Process on gTLD Whois without making any recommendations for specific policy changes to ICANN’s Board of Directors, and; 3. Recognizes the demand for future policy development including, but not limited to, ensuring appropriate privacy safeguards for natural persons, lawful access to data for rights enforcement, consumer protection, law enforcement and anti-crime purposes and will immediately initiate the following sequential actions: 1) Council shall provide additional definition regarding the potential data gathering and study requirements 2) staff shall provide the Council with rough cost estimates for various components of data gathering and studies no later than February 15th, 2008;; 3) the Council will decide what data gathering and studies would be pursued; and 4) staff will perform the resulting data gathering and studies and report the results back to the Council . 4. May initiate policy development activities in this area, as supported by the findings of the data-gathering and study activities upon their completion. Resolution 5 Whereas Dr Liz Williams, as Senior Policy Counselor for ICANN, has been the ICANN Staff Manager assigned to support the GNSO's Policy Development Process (PDP) on new gTLDs, since December 2005. Whereas this PDP trialled a number of new approaches in GNSO policy development, including the use of inter-sessional face-to-face meetings, calls for formal papers with the ability for the authors to present those papers and have dialog with the committee, and the use of working groups to analyse topics such as IDNs, reserved names, and protecting the rights of others. The success of the working groups became the foundation of the Board Governance Committee's GNSO Review Working Group recommendations on using working groups as the main approach for policy development. Whereas Liz worked tirelessly to secure support for many of these initiatives, and pull together a huge amount of public input, meeting transcripts, and GNSO constituency contributions into a final set of principles, recommendations, and guidelines, along with a large range of supporting material that will assist the ICANN staff in implementing the policy. Whereas Liz completed the final report on the policy for new gTLDs in August 2007, finished her term of office with ICANN in September 2007. It is resolved that the GNSO expresses its sincere gratitude for her service to the ICANN community and wishes her every success in her next endeavours. -- Glen de Saint Géry GNSO Secretariat - ICANN gnso.secretariat[at]gnso.icann.org http://gnso.icann.org

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