Dear Jeff: One solution may be to deliver a summary letter to the Board by August 31, 2012 briefly explaining that the GNSO Council was unable to reach an agreement on which recommendations require a Policy Development Process and that individual comments from each Stakeholder Group and Constituency have been requested. Based on the input we have received thus far, some believe that only a handful of the WHOIS RT recommendations require GNSO policy work, (which we understood to be the impetus for the decision to parse through recommendations per the Council's July 20, 2012 discussion). However, others believe that all sixteen recommendations require GNSO policy work. That is a fundamental difference, and as Stéphane phrased it, a "direct contradiction," which likely vitiates the possibility for general agreement on the matter. I am interested in everyone's thoughts and happy to take a stab at a first draft of a very short letter to the Board today if we decide to take this route. Thank you, Brian Brian J. Winterfeldt bwinterfeldt@steptoe.com<mailto:bwinterfeldt@steptoe.com> Steptoe ------------------------------------------- From: Neuman, Jeff[SMTP:JEFF.NEUMAN@NEUSTAR.US]<mailto:[SMTP:JEFF.NEUMAN@NEUSTAR.US]> Sent: Wednesday, August 29, 2012 8:57:50 AM To: Mason Cole; Winterfeldt, Brian Cc: council@gnso.icann.org<mailto:council@gnso.icann.org> Subject: RE: [council] Whois Review Team Final Report Auto forwarded by a Rule All, It seems clear that we either need more time to work on this letter than August 31st or should just agree to not send a Council letter, but leave this to the stakeholder groups/constituencies. If we do decide to do the letter, we will need a few more weeks at least to approve on the September 13th call. Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs From: owner-council@gnso.icann.org<mailto:owner-council@gnso.icann.org> [mailto:owner-council@gnso.icann.org]<mailto:[mailto:owner-council@gnso.icann.org]> On Behalf Of Mason Cole Sent: Tuesday, August 28, 2012 2:10 PM To: Winterfeldt, Brian Cc: council@gnso.icann.org<mailto:council@gnso.icann.org> Subject: Re: [council] Whois Review Team Final Report Brian -- Thank you for your and the RT's continued work on Whois issues. On behalf of the RrSG, our feedback is provided below, in line. I am happy to assist with drafting from here if I can be of help. Mason On Aug 27, 2012, at 8:26 AM, Winterfeldt, Brian wrote: Dear all: I hereby forward to the full Council the latest draft letter to the ICANN Board regarding the WHOIS Review Team Final Report, wherein we attempt to flag potential ambiguous recommendations and assist the Board in determining which Review Team recommendations are matters of GNSO policy development versus which recommendations are matters of staff implementation or negotiation with contracted parties. Achieving full consensus of the Council may prove difficult given the divergence of viewpoints expressed in our small group, which we hope to have accurately encapsulated in our draft below. The proposed text below was supported by myself and Wolf-Ulrich, and we have also included comments from Jeff and Wendy in red font within brackets. I would like to thank Jeff, Wendy, Wolf-Ulrich and Thomas for their input and assistance in this matter, and I look forward to working with everyone toward finalizing a letter for submission to the ICANN Board by the August 31, 2012 deadline. Thank you, Brian Brian J. Winterfeldt Partner bwinterfeldt@steptoe.com<mailto:bwinterfeldt@steptoe.com> Steptoe +1 202 429 6260 direct +1 202 903 4422 mobile +1 202 429 3902 fax Steptoe & Johnson LLP - DC 1330 Connecticut Avenue, NW Washington, DC 20036 www.steptoe.com<http://www.steptoe.com/> +1 212.506.3935 direct +1 212.506.3950 fax Steptoe & Johnson LLP - New York 1114 Avenue of the Americas New York, NY 10036 This message and any attached documents contain information from the law firm Steptoe & Johnson LLP that may be confidential and/or privileged. If you are not the intended recipient, please do not read, copy, distribute, or use this information. If you have received this transmission in error, please notify the sender immediately by reply e-mail and then delete this message. _________________________________________________________ TO: ICANN Board FROM: Chair of the GNSO Council VIA: GNSO Liaison to the ICANN Board I hereby forward to you the written public input of the GNSO Council on the WHOIS Review Team Final Report pursuant to your resolution (2012.06.23.26) from the meeting in Prague, Czech Republic, requesting that the GNSO provide such input by 31 August 2012. As you are aware, the WHOIS Review Team's scope, guided by the Affirmation of Commitments, was to review the extent to which ICANN's WHOIS policy and its implementation are effective, meet legitimate needs of law enforcement and promote consumer trust. To this end, the Final Report, which issued on 11 May 2012, contained sixteen recommendations. During its meeting on 20 July 2012, the GNSO Council considered the substance of the WHOIS Review Team Final Report, as well as how to respond to the Board's request. The GNSO Council recognizes, given the hard work and public input already incorporated into the Final Report, that there is a reasonable expectation by the Review Team for its recommendations be implemented as soon as practicable.[[The NCSG disagrees. Please cut this sentence. The Review Team can make recommendations but it can't expect implementation simply by dint of its hard work. The NCSG has previously stated that any implementation requires GNSO policy development. "The NCSG believes all recommendations require GNSO Policy Development."]] RRSG: The RrSG agrees. Our group is very appreciative of the work, but as has been pointed out before by council members, work output doesn't necessarily represent the expectation of action. However, the GNSO Council also recognizes that a small number of the Review Team's recommendations may require future GNSO policy development. Accordingly, the written input this letter is intended to clarify potential ambiguity and assist the Board in determining which Review Team recommendations are matters of GNSO policy development versus which recommendations are matters of staff implementation or negotiation with contracted parties. Recommendation Two - Single WHOIS Policy. The Review Team's second recommendation calls for the Board to oversee creation of a single WHOIS policy document, and reference it in agreements with Contracted Parties, as well as clearly document the current gTLD WHOIS policy as set out in the gTLD Registry & Registrar contracts & Consensus Policies and Procedure. The GNSO Council notes that this recommendation carefully avoids the phrase "policy development." It asks for documentation of the existing policy set forth in the contracts and consensus policies. It does not ask for the GNSO council to review or develop any policies. Accordingly, the GNSO Council believes that this is not a recommendation for further GNSO policy development. [[The RySG agrees that if this recommendation means creation of a single policy document that just summarizes all current relevant WHOIS policies, then no PDP is required. However, if this recommendation requires the creation of a new single policy, then a PDP should be required.]] RRSG: The RrSG agrees with the RySG here. Recommendation Three - Outreach. The Review Team's third recommendation calls for ICANN to ensure that WHOIS policy issues are accompanied by cross-community outreach, including outreach to the communities outside of ICANN with a specific interest in the issues, and an ongoing program for consumer awareness. The GNSO Council views this recommendation as a modifier, or supplement, to a number of other recommendations in the Final Report. Accordingly, the GNSO Council believes that this is not a recommendation necessitating GNSO policy development. 6. [[Recommendation Six - Data Accuracy. The sixth recommendation of the Review Team instructs that ICANN should take appropriate measures to reduce the number of WHOIS registrations that fall into the accuracy groups "Substantial Failure" and "Full Failure" (as defined by the NORC Data Accuracy Study) by 50% within 12 months and 50% again over the following 12 months. The RySG believes that the recommendation to undertake "appropriate measures" to reduce the number of WHOIS registrations that fall into these accuracy groups may require a PDP depending on what these measures are.]] RRSG: The RrSG agrees again. Further "all appropriate measures" is undefined and is unfortunately subject to differing interpretation. The RrSG recommends the GNSO Council request that ICANN Compliance outline a plan to reach these goals, along with their expected timeframe and metrics. These should be published before implementation of any new compliance initiatives meant to address these metrics. Recommendation Ten - Data Access - Privacy and Proxy Services. The Review Team's tenth recommendation essentially calls for ICANN to initiate processes to regulate and oversee privacy and proxy service providers; processes should be developed in consultation with all interested stakeholders and note relevant GNSO studies; a possible approach to achieving this would be to establish an accreditation system for all proxy/privacy service providers, and consider the merits (if any) of establishing or maintaining a distinction between privacy and proxy services; goal is to provide clear, consistent and enforceable requirements for the operation of these services consistent with national laws, and to strike an appropriate balance between stakeholders with competing but legitimate interests-including privacy, data protection, law enforcement, the industry around law enforcement and the human rights community. The GNSO Council acknowledges that this recommendation can be read to describe a GNSO policy development process. However, in recognition of the contemporaneous negotiation of the RAA, the GNSO Council recommends that-notwithstanding any GNSO policy development process on this recommendation-ICANN retain its authority to unilaterally impose regulation of privacy and proxy services pursuant to the RAA in the event that no consensus policy has been reached in a reasonably time frame, such as twelve months from 31 August 2012. [[The RySG strongly believes that ICANN can only initiate a process to regulate and oversee privacy and proxy service providers through a PDP process. The RySG believes that the entirety of the Review Team's tenth recommendation does in fact require a PDP without any artificial time constraints imposed.]] RRSG: The RrSG agrees again with the RySG. The Whois RT report plainly says privacy / proxy accreditation should be developed in consultation with all interested stakeholders. While regulation of privacy / proxy may be a laudable outcome, nowhere does the RAA suggest the ICANN corporation has the authority to make such an imposition, and it's false to say it does. The RrSG has discussed privacy / proxy accreditation with ICANN staff in the course of RAA negotiations and our experience is that, unfortunately, like many community desires, it is complex, involves the interests of multiple stakeholders, and has cost an resource impacts on ICANN staff and the community. It is an appropriate issue for a PDP and not unilateral action. Recommendation Twelve - Internationalized Domain Names. The Review Team's twelfth recommendation calls for ICANN to task a working group within six months of publication of their report, to determine appropriate internationalized domain name registration data requirements and evaluate available solutions; at a minimum, the data requirements should apply to all new gTLDs, and the working group should consider ways to encourage consistency of approach across the gTLD and (on a voluntary basis) ccTLD space; the working group should report within a year. The GNSO Council acknowledges that the work of the Internationalized Registration Data Working Group "IRD WG" is already underway in regard to this recommendation. The GNSO Council welcomes comments from the Board concerning this input. Stéphane Van Gelder Chair, GNSO Council