Dear Emily, colleagues as for my comments to the draft of the draft Discussion Paper, I fully share Peter's view. Kind regards, Michael -----Original Message----- From: rt4-whois-bounces@icann.org [mailto:rt4-whois-bounces@icann.org] On Behalf Of Nettlefold, Peter Sent: Monday, May 16, 2011 11:30 AM To: rt4-whois Subject: Re: [Rt4-whois] Comments on the Issues paper [SEC=UNCLASSIFIED] Hello all, I have been following these discussions with interest (including the recording of the last teleconference). Almost every point I can think to make has already been made by others, so I'll avoid confusing the paper by commenting on comments etc. In short, I think some of Kathy's additions are very useful, and I think we should be able to usefully recast them to avoid some of the issues raised by Bill. I also agree with many of the points made by others, including James' point about potentially replacing the list in the introduction with a short uncontentious statement (to avoid the risk of trying to develop and agree on some sort of exhaustive list). I look forward to discussing this further with you all on Wednesday. Kind regards, Peter -----Original Message----- From: rt4-whois-bounces@icann.org [mailto:rt4-whois-bounces@icann.org] On Behalf Of Omar Kaminski Sent: Monday, 16 May 2011 12:01 PM To: rt4-whois Subject: Re: [Rt4-whois] Comments on the Issues paper Dear Team, My considerations are attached, using the same docx as Bill then James. Have a great week, Omar 2011/5/15 James M. Bladel <jbladel@godaddy.com<mailto:jbladel@godaddy.com>>

Emily and Team:

My comments are attached, appended to Bill's draft. Most of these were composed somewhere over the N. Atlantic, so apologies if they don't make sense and/or need further explanation.

Thanks--

J.

-------- Original Message --------

Subject: [Rt4-whois] Comments on the Issues paper

From: Emily Taylor <emily.taylor@etlaw.co.uk>

Date: Sun, May 15, 2011 9:13 am

To: "rt4-whois@icann.org WHOIS" <rt4-whois@icann.org>

Hi all

A gentle reminder that we agreed to review the draft issues paper, and circulate comments by close of business on Monday. The Team has asked Alice to edit the comments, and we're hoping to set up a call on Wednesday with this as the only agenda item.

So far, Kathy and Bill have circulated comments - thank you.

Please let's have your comments by end of Monday. If you're happy with the paper, or have views on the comments already made, please say so.

Thanks

Emily

76 Temple Road, Oxford OX4 2EZ UK

telephone: 01865 582 811 mobile: 07540 049 322

emily.taylor@etlaw.co.uk<mailto:emily.taylor@etlaw.co.uk> www.etlaw.co.uk<http://www.etlaw.co.uk>

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This is really good. Thanks Kim, James, Omar, for circulating your comments on the Issues Paper, building on Kathy and Bill's inputs. Peter, I note that you will be circulating your comments later on today. We now have a good range of comments, and comments on the comments. Others - I think that's Olivier, Wilfried, Lutz, Susan, Sharon, Michael, Sarmad - please either let us have your inputs, or some other indication of where you stand. Best, Emily On 16 May 2011, at 03:06, Kim G. von Arx wrote:

voila.

Kim <WHOIS Review - draft discussion paper REVISED wcs + JMB comments + KvA.docx>

__________________________________

kim@vonarx.ca +1 (613) 286-4445

"Shoot for the moon. Even if you miss, you'll land among the stars..."

On 15 May 2011, at 19:36, James M. Bladel wrote:

...

Emily and Team:

My comments are attached, appended to Bill's draft. Most of these were composed somewhere over the N. Atlantic, so apologies if they don't make sense and/or need further explanation.

Thanks--

J.

-------- Original Message -------- Subject: [Rt4-whois] Comments on the Issues paper From: Emily Taylor <emily.taylor@etlaw.co.uk> Date: Sun, May 15, 2011 9:13 am To: "rt4-whois@icann.org WHOIS" <rt4-whois@icann.org>

Hi all

A gentle reminder that we agreed to review the draft issues paper, and circulate comments by close of business on Monday. The Team has asked Alice to edit the comments, and we're hoping to set up a call on Wednesday with this as the only agenda item.

So far, Kathy and Bill have circulated comments - thank you.

Please let's have your comments by end of Monday. If you're happy with the paper, or have views on the comments already made, please say so.

Thanks

Emily

76 Temple Road, Oxford OX4 2EZ UK telephone: 01865 582 811 mobile: 07540 049 322 emily.taylor@etlaw.co.uk www.etlaw.co.uk

_______________________________________________ Rt4-whois mailing list Rt4-whois@icann.org https://mm.icann.org/mailman/listinfo/rt4-whois <WHOIS Review - draft discussion paper REVISED wcs + JMB comments.docx>_______________________________________________ Rt4-whois mailing list Rt4-whois@icann.org https://mm.icann.org/mailman/listinfo/rt4-whois

76 Temple Road, Oxford OX4 2EZ UK telephone: 01865 582 811 mobile: 07540 049 322 emily.taylor@etlaw.co.uk www.etlaw.co.uk

NOT PROTECTIVELY MARKED I have reviewed the comments in relation to law enforcement. There were seven comments from: Business Constituency Coalition against Unsolicited Commercial email European Communities Trademark Association + Marques Intellectual Property Constituency Lexinta Registrar Stakeholder Group Volodya Only the Business Constituency were happy with the law enforcement definition, with all others suggesting some admendments or significant changes. Emily/Anyone - what are the next steps please? The original defination was as a result of our small subgroup, Kim, Lutz and I - where we came up with the definition and prepared a questionnaire. Peter is currently looking at the questionnaire before we ask the RT to approve me sending it to my law enforcement network and Peter submitting to his GAC colleagues for their network. Sharon Sharon LEMON OBE Deputy Director Cyber and Forensics Serious and Organised Crime Agency (SOCA) 07768 290902 0207 855 2800 This information is supplied in confidence by SOCA, and is exempt from disclosure under the Freedom of Information Act 2000. It may also be subject to exemption under other UK legislation. Onward disclosure may be unlawful, for example, under the Data Protection Act 1998. Requests for disclosure to the public must be referred to the SOCA FOI single point of contact, by email on PICUEnquiries@soca.x.gsi.gov.uk or by telephoning 0870 268 8677. All E-Mail sent and received by SOCA is scanned and subject to assessment. Messages sent or received by SOCA staff are not private and may be the subject of lawful business monitoring. E-Mail may be passed at any time and without notice to an appropriate branch within SOCA, on authority from the Director General or his Deputy for analysis. This E-Mail and any files transmitted with it are intended solely for the individual or entity to whom they are addressed. If you have received this message in error, please contact the sender as soon as possible. The original of this email was scanned for viruses by the Government Secure Intranet virus scanning service supplied by Cable&Wireless Worldwide in partnership with MessageLabs. (CCTM Certificate Number 2009/09/0052.) On leaving the GSi this email was certified virus free. Communications via the GSi may be automatically logged, monitored and/or recorded for legal purposes.

On Mon, May 16, 2011 at 11:33:25AM +0100, LEMON, Sharon wrote:

I have reviewed the comments in relation to law enforcement.

Thank you. ************************************************************************ Reading through the messages (http://forum.icann.org/lists/whois-rt/index.html) I found the following comments:

ALAC : We endorse a formal definition of the term “law enforcement”’ and the term : "legitimate needs of law enforcement."

Business Constituency : The BC accepts the definitions provided by the WRT for the terms Law : Enforcement ...

European Communities Trademark Association + Marques : This definition is very broadly drafted. Is it intended that private : parties interested in enforcing civil law remedies should fall within such : a definition? If it is intended to refer to law enforcement in the sense : of public agencies, such as Police forces, then greater care needs to be : taken in the drafting. Consideration needs to be given to the range of : legitimate legal proceedings, whether criminal, civil or administrative, : for which access to WHOIS data, or extended WHOIS data, should be : available.

Intellectual Property Constituency : The Review Team appears to read this phrase as limited to governmental : enforcement agencies. We do not believe there is any evidence that the : drafters of the AOC intended this reading. Rather, in assessing whether : the implementation of Whois policy “meets the legitimate needs of law : enforcement,” the Review Team should focus on whether this implementation : meets needs that are legitimate for the enforcement of laws. Many laws : depend for their enforcement upon the efforts of private parties, : including, to a great extent, laws protecting trademark and copyright. : Certainly reliable access to accurate Whois data plays a significant role : in advancing the legitimate needs of enforcement of these laws.

Volodya : The term LEA (or "Law Enforcement" as it's termed) is defined without : making the scope clear. As this conglamaration of groups is being somehow : placed in the separate category than the "regular humans" it is important : to know if we are talking about traffic wardens or NSA here. In addition : to that the term government needs to be defined very carefully, several : micronations exist in today's world, and they do have their governments, : can they create agencies which will be placed in this category?

Guilmette : Certainly, that can be inferred from the mere fact that one of the : questions that has been put to the community by the review team is one : concerning the proper defintion of "law enforcement". Such a definition : can only, and will only be useful if it has been decided (pre-decided?) : that the domain name WHOIS service will have (or does have) some special : and particular intended uses which are unique to "law enforcement". : : I suppose that by raising such questions as "What is law enforcement'?" : outside observers such as myself might conclude that the WRT is in fact : wending its way, however circuitously, towards a kind of a formal charter : for domain name WHOIS service, but my simple suggestion would be to for- : mally and explicitly assert and acknowledge that the development of a : formal charter for domain name WHOIS service is in fact a goal and in- : tended work product of the WRT. I would argue that it is only within the : framework of exactly such a formal goal do questions such as "What is law : enforcement?" even make any sense. The definition, even if one can be : agreed, is utterly superfluous in the absence of context. : : I have no opinion of the best or most proper definition of the term `law : enforcement'' until I am presented with at least a draft of the : over-arching document into which said definition is intended to fit. (And : if that over-arching document asserts that henceforth only `law : enforcement'' shall be granted access to certain types of WHOIS : information, then everyone may be assured that any definition of `law : enforcement'' that _I_ would likely espouse would most assuredly be : drafted so broadly as to include myself.)

In the finalized document http://forum.icann.org/lists/whois-rt/pdfZCv8tpNnFc.pdf there is an additional comments (not occuring in the mailing list archive):

Coalition against Unsolicited Commercial email : The definition does not distinguish between sworn law enforcement : officials and other entities with the mentioned obligations. Law : enforcement officers should be narrowly defined as individuals: 1) who : have been sworn or commissioned as a law enforcement officer by a : government agency of competent authority; 2) who are charged with : upholding the general criminal laws of an applicable jurisdiction, : including having power to arrest; 3) typically have received specialized : peace officer training (see submission for examples); 4) who normally : receive tangible official signs of their role such as police uniform or : official credentials. Adjusting this definition does not mean to exclude : non‐sworn officials from the scope, they just need another label. It : should also be considered whether law enforcement should include national : intelligence services and national/multi‐national military services

Comments from the following parties did not refer to Law Enforcement definition.

Lexinta Registrar Stakeholder Group

************************************************************************ Please let me first clarify my understanding of the Law Enforcement definition: My proposal is narrow "A law enforcement agency is an government agency responsible for the enforcement of the laws, which is subject to judicial or open civil overview." (Extracted from Wikipedia, added "civil overview" to prohibit secrect and military services) http://mm.icann.org/pipermail/rt4-whois/Week-of-Mon-20110131/000537.html The current definition is "Law Enforcement shall be considered to be an entity authorized by a government and whose responsibilities include the maintenance, co-ordination, or enforcement of laws, multi-national treaty or government-imposed legal obligations." https://community.icann.org/display/whoisreview/A+-+Law+enforcement The current proposal for the definition includes "maintain, co-ordinate" in addition to "enforce", so extending law enforcement to law making bodies as well as regulatory authorites. The current proposal for the definition replaced "government agency" by "entity authorized by a government", so extending law enforcement to any kind of commercial organisation which is in charge of an government contract regarding any lawful acitivity. The current proposal of the definition includes "multi-national treaty or government-imposed legal obligations" in addition to law, so extending the law enforcement to any kind of intellectual propererty and contract law. This allows any commercial body to insist on the same rights as classical law enforcement. Please do not consider this as a work group position. It's just _my_ understanding. ************************************************************************ My summary on those comments: : ALAC insists on a "formal definition". From first hand knowledge, I have : to add that this statement means to have a definition (however it will be) : to rely on for further policy agreements. It states, that ALAC awaits a : definition with can be widly accepted within ICANN. I'd accept the ALAC comment for us. We do provide such a definition. : BC simply says, that they have nothing to do with LAE and therefore ignore : the topic. I'd ignore the BC comment for us. : ECTA and Marques wish to have a narrower definition. They do not feel well : with including the private parties. Furthermore they insist on a definition : of "legitimate use", hence use cases. I'd accept the ECTA/Marques comment for us. We should narrow the definition. : IPC wish to have a wider definition. They do not feel will with the : governmental relationship requirement and like to include everybody who : deals with law enforcment on any basis. I'd reject the IPC comment for us. Extenting the definition to everybody will not help. : Mr. Volodya wishs to understand definition by seeing concrete examples. He : points out the corner cases of the definition. I'd accept the Volodya comment for us. We should provide a lot of examples which case should be covered by the definition and which not. : Mr. Guilmette insits of creating the use cases for the definition first. : He clearly remarks that there is no need for any law enforcement : definition at the moment, simply because law enforcement is not mentioned : in the policies. I'd reject the Guilmette comment for us. We should not wait for new policies which refer to law enforcement before considering the AoC requirments. : CAUCE wish to have a special definition for the people doing the law : enforcement and proposes a definition for governmental agents of this : type. I'd reject the CAUCE comment for us. We should not diffenciate the internal structures of law enforcemnt. ************************************************************************ HTH