Good evening:
I have reviewed the 'Dual
Trigger' procedure as proposed by
James Gannon, for which many thanks.
However as I have explained
to the recent conference calls, I
see no merit in spending time on
tweaking the procedure for handling
eventual WHOIS conflicts with
privacy and data protection laws
when the underlying ICANN policy is
fundamentally flawed.
I have proposed to greatly
simplify and expedite the matter
either by ICANN adapting WHOIS to
international best practice whereby
all Registries and Registrars would
implement a high level of personal
data protection and privacy, world
wide. Or alternatively, to Reverse
the Burden of Proof, whereby
Registries and Registrars would, as
their primary default, implement
applicable privacy and data
protection laws in their respective
jurisdictions. It would then be up
to ICANN to initiate a procedure to
examine whether, in any particular
case, there was a threat to the
stability and security of the
Internet.
The present draft document
of some six detailed pages is really
not workable and contains some
serious misconceptions.
-How
many Registries and Registrars,
world-wide, would be potentially
affected by this procedure? What
would be the consequences in cost
and staff time for ICANN should they
all actually apply for exemption?
(Into
how many languages would the
procedure have to be translated
before it could be realistically
implemented by all present and
future affected Registries and
Registrars?)
-ICANN's
'contractual WHOIS obligations'
(Section 2.1) are not sacrosanct,
particularly when they are
inconsistent with applicable law.
-the
reference to '… anticipated impact
on the operational stability …'
(Section 4.1) is rather tendentious.
I am aware of no reason to
anticipate that privacy and data
protection law would have any such
impact. On the contrary, there are a
large number of Registries
(principally ccTLDs) which do
respect applicable law. Did ICANN
ever question whether they had any
negative impact on stability,
security or interoperability etc. of
the Internet?
-The
reference in Section 5.2 to "ICANN's
forbearance from enforcement of full
compliance … " is likely to be
perceived as rather offensive. ICANN
is not in a position to force
Registrars or Registries to choose
between ICANN's contractual
conditions and applicable law. On
the contrary, ICANN's Articles of
Incorporation were drafted to ensure
that the opposite would be the case.
More generally, there is an
underlying issue of fair competition
between accredited Registrars in the
ICANN gTLD system. Should one accept
the procedure as proposed, one would
be effectively placing certain
Registrars at a competitive
disadvantage (a) to undertake an
exorbitant procedure to obtain a
waiver or exemption from ICANN's
contractual conditions and/or (b) to
risk infringement of applicable law
vis-à-vis their Registrants and
public authorities.
Again, such outcome is
contrary to the underlying
objectives of ICANN which was
created in the first place to ensure
conditions of fair competition among
Registrars, world-wide.
In the light of the above, I
would recommend that the working
group proceed no further with the so
called 'trigger mechanisms' and
start again from a more realistic
and legally compliant position.
With best regards to you all
Christopher Wilkinson