Heather, Keith - how about mentioning that all these waivers and derogations based on national laws/requested by opinions from law firms, shall continue to be made public. Kind regards, Erika On Mon, Nov 13, 2017 at 7:11 AM, Heather Forrest <haforrestesq@gmail.com> wrote:

Dear Keith,

Thank you very much indeed for taking the lead on this initiative.

Paul and I appreciate the alternatives you have set out and are taking input from our IPC colleagues. We're aiming to offer a substantive reply no later than this Friday to ensure this gets across the line by the 20th document deadline.

Best wishes,

Heather

On Sat, Nov 11, 2017 at 4:53 AM, Drazek, Keith via council < council@gnso.icann.org> wrote:

...

Hello fellow Councilors,

As discussed in Abu Dhabi, I’m re-surfacing the previously drafted motion (thanks Marika) and some proposed language for consideration at our November Council meeting.

We need to respond to Akram’s letter on this topic. It could either be via a motion or in a letter response.

Substantively, here are two options:

Alternate Trigger #1: Written Legal Opinion

In the absence of a Whois Proceeding, a registry or registrar may present to ICANN a written legal opinion from a nationally recognized law firm or attorney in good standing that identifies any portion of the collection, retention, display or dissemination of any data element specified by the ICANN contract in question violates or is likely to violate applicable law, statute or regulation. Such written opinion shall identify the provision(s) of the ICANN contract in question that are identified to be in conflict and the manner in which the registry or registrar, by fulfilling the terms of the contract, is likely to violate applicable law, statute or regulation.

Alternate Trigger #2: Previously granted waiver

If (i) it was previously determined that a provision in the RA, RAA or other contractual obligation conflicted with applicable law, statute, or regulation such that ICANN granted an exception under the terms of this Procedure and (ii) the registry or registrar is subject to the same applicable law, statute, or regulation, then the registry or registrar may request the same exception. Such request shall be granted by ICANN unless ICANN provides reasonable justification for not granting the request, in which case the registry or registrar may utilize another trigger.

Thanks and regards,

Keith

_______________________________________________ council mailing list council@gnso.icann.org https://mm.icann.org/mailman/listinfo/council

_______________________________________________ council mailing list council@gnso.icann.org https://mm.icann.org/mailman/listinfo/council

Thank you Marika - I read the text behind the link pretty careful but will read it again. My previous comment relates in particular to point: *"1.3 Depending on the specific circumstances of the WHOIS Proceeding, the registrar/registry may request that ICANN keep all correspondence between the parties confidential pending the outcome of the WHOIS Proceeding. ICANN will ordinarily respond favorably to such requests to the extent that they can be accommodated with other legal responsibilities and basic principles of transparency applicable to ICANN operations."* - My point is that 'correspondence' shall be kept confidential but the outcome, including the reference to the national law requirement and the agreement of the waiver or the special bilateral clauses, shall be published Will review the complete text again and will make additional comments, if needed. Thank you again! Erika On Mon, Nov 13, 2017 at 2:17 PM, Marika Konings <marika.konings@icann.org> wrote:

Erika, all,

As a reminder, the trigger is only the first step of the procedure (notification), there are five subsequent steps which need to be taken following notification, namely:

- Consultation - General Counsel Analysis and Recommendation - Resolution - Public Notice - Ongoing Review

For further details on each of these steps, please see https://www.icann.org/resources/pages/whois-privacy- conflicts-procedure-2008-01-17-en.

Best regards,

Marika

*From: *council <council-bounces@gnso.icann.org> on behalf of Erika Mann < erika@erikamann.com> *Date: *Monday, November 13, 2017 at 04:37 *To: *Heather Forrest <haforrestesq@gmail.com> *Cc: *"council@gnso.icann.org" <council@gnso.icann.org> *Subject: *Re: [council] WHOIS Conflicts with Local Law - Alternate Triggers

Heather, Keith -

how about mentioning that all these waivers and derogations based on national laws/requested by opinions from law firms, shall continue to be made public.

Kind regards,

Erika

On Mon, Nov 13, 2017 at 7:11 AM, Heather Forrest <haforrestesq@gmail.com> wrote:

Dear Keith,

Thank you very much indeed for taking the lead on this initiative.

Paul and I appreciate the alternatives you have set out and are taking input from our IPC colleagues. We're aiming to offer a substantive reply no later than this Friday to ensure this gets across the line by the 20th document deadline.

Best wishes,

Heather

On Sat, Nov 11, 2017 at 4:53 AM, Drazek, Keith via council < council@gnso.icann.org> wrote:

Hello fellow Councilors,

As discussed in Abu Dhabi, I’m re-surfacing the previously drafted motion (thanks Marika) and some proposed language for consideration at our November Council meeting.

We need to respond to Akram’s letter on this topic. It could either be via a motion or in a letter response.

Substantively, here are two options:

Alternate Trigger #1: Written Legal Opinion

In the absence of a Whois Proceeding, a registry or registrar may present to ICANN a written legal opinion from a nationally recognized law firm or attorney in good standing that identifies any portion of the collection, retention, display or dissemination of any data element specified by the ICANN contract in question violates or is likely to violate applicable law, statute or regulation. Such written opinion shall identify the provision(s) of the ICANN contract in question that are identified to be in conflict and the manner in which the registry or registrar, by fulfilling the terms of the contract, is likely to violate applicable law, statute or regulation.

Alternate Trigger #2: Previously granted waiver

If (i) it was previously determined that a provision in the RA, RAA or other contractual obligation conflicted with applicable law, statute, or regulation such that ICANN granted an exception under the terms of this Procedure and (ii) the registry or registrar is subject to the same applicable law, statute, or regulation, then the registry or registrar may request the same exception. Such request shall be granted by ICANN unless ICANN provides reasonable justification for not granting the request, in which case the registry or registrar may utilize another trigger.

Thanks and regards,

Keith

_______________________________________________ council mailing list council@gnso.icann.org https://mm.icann.org/mailman/listinfo/council

_______________________________________________ council mailing list council@gnso.icann.org https://mm.icann.org/mailman/listinfo/council

Thank you Marika. I wasn't implying this neither. Was just my typical German way in shortening thought processes and approaches. Hug! Erika On Mon, Nov 13, 2017 at 9:21 PM, Marika Konings <marika.konings@icann.org> wrote:

Thanks, Erika, I did not mean to imply that you had not read it carefully, I just wanted to make sure that everyone is aware that although the focus of the review has been on the trigger, the procedure itself includes a number of additional steps.

Best regards,

Marika

*From: *Erika Mann <erika@erikamann.com> *Date: *Monday, November 13, 2017 at 07:27 *To: *Marika Konings <marika.konings@icann.org> *Cc: *Heather Forrest <haforrestesq@gmail.com>, "council@gnso.icann.org" < council@gnso.icann.org> *Subject: *[Ext] Re: [council] WHOIS Conflicts with Local Law - Alternate Triggers

Thank you Marika -

I read the text behind the link pretty careful but will read it again.

My previous comment relates in particular to point:

*"**1.3 Depending on the specific circumstances of the **WHOIS** Proceeding, the registrar/registry may request that **ICANN** keep all correspondence between the parties confidential pending the outcome of the **WHOIS* * Proceeding. **ICANN** will ordinarily respond favorably to such requests to the extent that they can be accommodated with other legal responsibilities and basic principles of transparency applicable to * *ICANN** operations."*

- My point is that 'correspondence' shall be kept confidential but the outcome, including the reference to the national law requirement and the agreement of the waiver or the special bilateral clauses, shall be published

Will review the complete text again and will make additional comments, if needed.

Thank you again!

Erika

On Mon, Nov 13, 2017 at 2:17 PM, Marika Konings <marika.konings@icann.org> wrote:

Erika, all,

As a reminder, the trigger is only the first step of the procedure (notification), there are five subsequent steps which need to be taken following notification, namely:

- Consultation - General Counsel Analysis and Recommendation - Resolution - Public Notice - Ongoing Review

For further details on each of these steps, please see https://www.icann.org/resources/pages/whois-privacy- conflicts-procedure-2008-01-17-en[icann.org] <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources...>.

Best regards,

Marika

*From: *council <council-bounces@gnso.icann.org> on behalf of Erika Mann < erika@erikamann.com> *Date: *Monday, November 13, 2017 at 04:37 *To: *Heather Forrest <haforrestesq@gmail.com> *Cc: *"council@gnso.icann.org" <council@gnso.icann.org> *Subject: *Re: [council] WHOIS Conflicts with Local Law - Alternate Triggers

Heather, Keith -

how about mentioning that all these waivers and derogations based on national laws/requested by opinions from law firms, shall continue to be made public.

Kind regards,

Erika

On Mon, Nov 13, 2017 at 7:11 AM, Heather Forrest <haforrestesq@gmail.com> wrote:

Dear Keith,

Thank you very much indeed for taking the lead on this initiative.

Paul and I appreciate the alternatives you have set out and are taking input from our IPC colleagues. We're aiming to offer a substantive reply no later than this Friday to ensure this gets across the line by the 20th document deadline.

Best wishes,

Heather

On Sat, Nov 11, 2017 at 4:53 AM, Drazek, Keith via council < council@gnso.icann.org> wrote:

Hello fellow Councilors,

As discussed in Abu Dhabi, I’m re-surfacing the previously drafted motion (thanks Marika) and some proposed language for consideration at our November Council meeting.

We need to respond to Akram’s letter on this topic. It could either be via a motion or in a letter response.

Substantively, here are two options:

Alternate Trigger #1: Written Legal Opinion

In the absence of a Whois Proceeding, a registry or registrar may present to ICANN a written legal opinion from a nationally recognized law firm or attorney in good standing that identifies any portion of the collection, retention, display or dissemination of any data element specified by the ICANN contract in question violates or is likely to violate applicable law, statute or regulation. Such written opinion shall identify the provision(s) of the ICANN contract in question that are identified to be in conflict and the manner in which the registry or registrar, by fulfilling the terms of the contract, is likely to violate applicable law, statute or regulation.

Alternate Trigger #2: Previously granted waiver

If (i) it was previously determined that a provision in the RA, RAA or other contractual obligation conflicted with applicable law, statute, or regulation such that ICANN granted an exception under the terms of this Procedure and (ii) the registry or registrar is subject to the same applicable law, statute, or regulation, then the registry or registrar may request the same exception. Such request shall be granted by ICANN unless ICANN provides reasonable justification for not granting the request, in which case the registry or registrar may utilize another trigger.

Thanks and regards,

Keith

_______________________________________________ council mailing list council@gnso.icann.org https://mm.icann.org/mailman/listinfo/council

_______________________________________________ council mailing list council@gnso.icann.org https://mm.icann.org/mailman/listinfo/council

Hi Keith, all, Just following up to get your thoughts on my proposed amendments below and to confirm where we are at? Is the motion to be on the agenda as submitted by Keith originally (If so, Keith, would you consider my proposed amendments below friendly?), or is the motion to be Keith's text plus my amendments? Best wishes to all, and Happy Thanksgiving to those who celebrate it, Heather On Fri, Nov 17, 2017 at 2:37 PM, Heather Forrest <haforrestesq@gmail.com> wrote:

Hi Keith, colleagues,

Many thanks again to Keith for holding the pen on this one that has been with us for so long now. I'm hopeful that we can finally get to a motion text that covers all concerns, rather than duke it out in voting. The issue is important to a substantial proportion of the GNSO community, so it's particularly worthwhile trying to get it to a place that is workable from all perspectives.

I understand that Alternate Trigger #1 was considered and not agreed upon by the IAG - if that's the case, then in my view it circumvents the IAG to raise it now. That's a precedent that I am loathe to set, as it could easily come back to haunt us later.

Alternate Trigger #2 is quite workable. May I suggest a few tweaks for clarity/specificity's sake, in caps below:

If (i) it was previously determined that a provision in the RA, RAA or other contractual obligation conflicted with applicable law, statute, or regulation such that ICANN granted an exception under the terms of this Procedure and (ii) the registry or registrar is subject to the same applicable law, statute, or regulation, AND TO THE SAME CONTRACTUAL OBLIGATION, then the registry or registrar may request the same exception. AFTER A REASONABLE OPPORTUNITY FOR PUBLIC COMMENT ON THE REQUEST, such request shall be granted by ICANN unless ICANN provides reasonable justification for not granting the request, in which case the registry or registrar may utilize another trigger.

Hoping this can spur us to reaching a good place in time for submitting the motion-

Best wishes to all,

Heather

On Sat, Nov 11, 2017 at 4:53 AM, Drazek, Keith via council < council@gnso.icann.org> wrote:

...

Hello fellow Councilors,

As discussed in Abu Dhabi, I’m re-surfacing the previously drafted motion (thanks Marika) and some proposed language for consideration at our November Council meeting.

We need to respond to Akram’s letter on this topic. It could either be via a motion or in a letter response.

Substantively, here are two options:

Alternate Trigger #1: Written Legal Opinion

In the absence of a Whois Proceeding, a registry or registrar may present to ICANN a written legal opinion from a nationally recognized law firm or attorney in good standing that identifies any portion of the collection, retention, display or dissemination of any data element specified by the ICANN contract in question violates or is likely to violate applicable law, statute or regulation. Such written opinion shall identify the provision(s) of the ICANN contract in question that are identified to be in conflict and the manner in which the registry or registrar, by fulfilling the terms of the contract, is likely to violate applicable law, statute or regulation.

Alternate Trigger #2: Previously granted waiver

If (i) it was previously determined that a provision in the RA, RAA or other contractual obligation conflicted with applicable law, statute, or regulation such that ICANN granted an exception under the terms of this Procedure and (ii) the registry or registrar is subject to the same applicable law, statute, or regulation, then the registry or registrar may request the same exception. Such request shall be granted by ICANN unless ICANN provides reasonable justification for not granting the request, in which case the registry or registrar may utilize another trigger.

Thanks and regards,

Keith

_______________________________________________ council mailing list council@gnso.icann.org https://mm.icann.org/mailman/listinfo/council

Hi Keith, Thanks very much for your thoughtful comments. I wasn't on the IAG myself so don't have all of the answers on that, but I take to heart your willingness to get this to an agreeable position before voting. If you're willing, I think it would be excellent to make this a discussion item, with a view to achieving an outcome that we can vote on in December - if you and others are willing. Best wishes, Heather On Wed, Nov 29, 2017 at 12:32 AM, Drazek, Keith <kdrazek@verisign.com> wrote:

Hi Heather, all,

Thanks for your feedback on this issue and apologies for my delay responding. I’ve been out of the office and am just now digging out.

Here’s my initial reaction to the proposed amendments. I will also raise this with the RySG during our bi-weekly call tomorrow (Wednesday), so I may receive further guidance.

1. While I was not a member of the IAG, my understanding is that consensus was not reached -- in either direction -- on the implementation of a Legal Opinion Trigger. The group was divided and the public comments on the issue were similarly divided. If the IPC believes adding a Legal Opinion Trigger now runs counter to the prior work of the IAG, then it’s probably time to convene another IAG to review the issue. The current implementation is simply not working or workable. Further, the comment period back in May was a reasonable first step towards forming another IAG: https://www.icann.org/news/announcement-2017-05-03-en and the GNSO council resolution on 16 Feb 2017 approving the previous IAG’s work called for a new review to be commenced no later than 1 Oct 2017: https://gnso.icann.org/en/council/resolutions <https://gnso.icann.org/en/council/resolutions> In light of all the recent developments around GDPR and experience with current implementation, this really needs to be reviewed and revisited ASAP.

1. Relying only on Alternate Trigger #2 assumes that there is another workable trigger setting the precedent, which is not the case, so I don’t see a stand-alone #2 as effective or sufficient.

1. Initiating a formal public comment period on what is essentially a contractual compliance issue is likely a non-starter for contracted parties.

1. It's worth noting that ICANN’s statement on GDPR “noncompliance” from Abu Dhabi is very similar to the legal opinion trigger we’re now discussing. ICANN will defer compliance action, but to be eligible a registry or registrar must first submit to ICANN what you are going to do, including an analysis explaining how the proposal reconciles contractual obligations with GDPR. ICANN will then submit that to Hamilton for legal analysis.

So, to summarize, I unfortunately can’t accept the proposed amendments from the IPC as friendly. That said, I also don’t want to force a vote without the opportunity for the Council to discuss further. Does it make sense to have this as a discussion item but not tabled for a vote this week?

I’ll let you know tomorrow if I receive any additional input from the RySG.

Thanks and regards,

Keith

*From:* Heather Forrest [mailto:haforrestesq@gmail.com] *Sent:* Tuesday, November 21, 2017 12:20 AM *To:* Drazek, Keith <kdrazek@verisign.com> *Cc:* council@gnso.icann.org; gnso-secs@icann.org *Subject:* [EXTERNAL] Re: [council] WHOIS Conflicts with Local Law - Alternate Triggers

Hi Keith, all,

Just following up to get your thoughts on my proposed amendments below and to confirm where we are at? Is the motion to be on the agenda as submitted by Keith originally (If so, Keith, would you consider my proposed amendments below friendly?), or is the motion to be Keith's text plus my amendments?

Best wishes to all, and Happy Thanksgiving to those who celebrate it,

Heather

On Fri, Nov 17, 2017 at 2:37 PM, Heather Forrest <haforrestesq@gmail.com> wrote:

Hi Keith, colleagues,

Many thanks again to Keith for holding the pen on this one that has been with us for so long now. I'm hopeful that we can finally get to a motion text that covers all concerns, rather than duke it out in voting. The issue is important to a substantial proportion of the GNSO community, so it's particularly worthwhile trying to get it to a place that is workable from all perspectives.

I understand that Alternate Trigger #1 was considered and not agreed upon by the IAG - if that's the case, then in my view it circumvents the IAG to raise it now. That's a precedent that I am loathe to set, as it could easily come back to haunt us later.

Alternate Trigger #2 is quite workable. May I suggest a few tweaks for clarity/specificity's sake, in caps below:

If (i) it was previously determined that a provision in the RA, RAA or other contractual obligation conflicted with applicable law, statute, or regulation such that ICANN granted an exception under the terms of this Procedure and (ii) the registry or registrar is subject to the same applicable law, statute, or regulation, AND TO THE SAME CONTRACTUAL OBLIGATION, then the registry or registrar may request the same exception. AFTER A REASONABLE OPPORTUNITY FOR PUBLIC COMMENT ON THE REQUEST, such request shall be granted by ICANN unless ICANN provides reasonable justification for not granting the request, in which case the registry or registrar may utilize another trigger.

Hoping this can spur us to reaching a good place in time for submitting the motion-

Best wishes to all,

Heather

On Sat, Nov 11, 2017 at 4:53 AM, Drazek, Keith via council < council@gnso.icann.org> wrote:

Hello fellow Councilors,

As discussed in Abu Dhabi, I’m re-surfacing the previously drafted motion (thanks Marika) and some proposed language for consideration at our November Council meeting.

We need to respond to Akram’s letter on this topic. It could either be via a motion or in a letter response.

Substantively, here are two options:

Alternate Trigger #1: Written Legal Opinion

In the absence of a Whois Proceeding, a registry or registrar may present to ICANN a written legal opinion from a nationally recognized law firm or attorney in good standing that identifies any portion of the collection, retention, display or dissemination of any data element specified by the ICANN contract in question violates or is likely to violate applicable law, statute or regulation. Such written opinion shall identify the provision(s) of the ICANN contract in question that are identified to be in conflict and the manner in which the registry or registrar, by fulfilling the terms of the contract, is likely to violate applicable law, statute or regulation.

Alternate Trigger #2: Previously granted waiver

If (i) it was previously determined that a provision in the RA, RAA or other contractual obligation conflicted with applicable law, statute, or regulation such that ICANN granted an exception under the terms of this Procedure and (ii) the registry or registrar is subject to the same applicable law, statute, or regulation, then the registry or registrar may request the same exception. Such request shall be granted by ICANN unless ICANN provides reasonable justification for not granting the request, in which case the registry or registrar may utilize another trigger.

Thanks and regards,

Keith

_______________________________________________ council mailing list council@gnso.icann.org https://mm.icann.org/mailman/listinfo/council

I guess I’ m a bit confused because the motion implies that Alternate Trigger #1 comes directly from the IAG.  That’s not the case? Thanks, Darcy From: council <council-bounces@gnso.icann.org> on behalf of Heather Forrest <haforrestesq@gmail.com> Date: Thursday, November 16, 2017 at 7:37 PM To: "Drazek, Keith" <kdrazek@verisign.com> Cc: "council@gnso.icann.org" <council@gnso.icann.org> Subject: Re: [council] WHOIS Conflicts with Local Law - Alternate Triggers Hi Keith, colleagues, Many thanks again to Keith for holding the pen on this one that has been with us for so long now. I'm hopeful that we can finally get to a motion text that covers all concerns, rather than duke it out in voting. The issue is important to a substantial proportion of the GNSO community, so it's particularly worthwhile trying to get it to a place that is workable from all perspectives. I understand that Alternate Trigger #1 was considered and not agreed upon by the IAG - if that's the case, then in my view it circumvents the IAG to raise it now. That's a precedent that I am loathe to set, as it could easily come back to haunt us later. Alternate Trigger #2 is quite workable. May I suggest a few tweaks for clarity/specificity's sake, in caps below: If (i) it was previously determined that a provision in the RA, RAA or other contractual obligation conflicted with applicable law, statute, or regulation such that ICANN granted an exception under the terms of this Procedure and (ii) the registry or registrar is subject to the same applicable law, statute, or regulation, AND TO THE SAME CONTRACTUAL OBLIGATION, then the registry or registrar may request the same exception. AFTER A REASONABLE OPPORTUNITY FOR PUBLIC COMMENT ON THE REQUEST, such request shall be granted by ICANN unless ICANN provides reasonable justification for not granting the request, in which case the registry or registrar may utilize another trigger. Hoping this can spur us to reaching a good place in time for submitting the motion- Best wishes to all, Heather On Sat, Nov 11, 2017 at 4:53 AM, Drazek, Keith via council <council@gnso.icann.org> wrote: Hello fellow Councilors, As discussed in Abu Dhabi, I’m re-surfacing the previously drafted motion (thanks Marika) and some proposed language for consideration at our November Council meeting. We need to respond to Akram’s letter on this topic. It could either be via a motion or in a letter response. Substantively, here are two options: Alternate Trigger #1: Written Legal Opinion In the absence of a Whois Proceeding, a registry or registrar may present to ICANN a written legal opinion from a nationally recognized law firm or attorney in good standing that identifies any portion of the collection, retention, display or dissemination of any data element specified by the ICANN contract in question violates or is likely to violate applicable law, statute or regulation. Such written opinion shall identify the provision(s) of the ICANN contract in question that are identified to be in conflict and the manner in which the registry or registrar, by fulfilling the terms of the contract, is likely to violate applicable law, statute or regulation. Alternate Trigger #2: Previously granted waiver If (i) it was previously determined that a provision in the RA, RAA or other contractual obligation conflicted with applicable law, statute, or regulation such that ICANN granted an exception under the terms of this Procedure and (ii) the registry or registrar is subject to the same applicable law, statute, or regulation, then the registry or registrar may request the same exception. Such request shall be granted by ICANN unless ICANN provides reasonable justification for not granting the request, in which case the registry or registrar may utilize another trigger. Thanks and regards, Keith _______________________________________________ council mailing list council@gnso.icann.org https://mm.icann.org/mailman/listinfo/council _______________________________________________ council mailing list council@gnso.icann.org https://mm.icann.org/mailman/listinfo/council