Thanks, Mary.
May I refer to
resolutions#200511 in respect of the policy that you mentioned in your email
below. My reading of the link http://gnso.icann.org/en/council/resolutions#200511 (that you provide) suggests that it should be resolution#20051128-05 reproduced
below:
“20051128-05
The GNSO votes in favour of the
following consensus policy recommendation from the WHOIS task force CONSENSUS
POLICY RECOMMENDATION
In order to facilitate
reconciliation of any conflicts between local/national mandatory privacy laws
or regulations and applicable provisions of the ICANN contract regarding the
collection, display and distribution of personal data via the gTLD WHOIS
service, ICANN should:
Develop and publicly document a
procedure for dealing with the situation in which a registrar or registry
can credibly demonstrate that it is legally prevented by local/national
privacy laws or regulations from fully complying with applicable provisions
of its ICANN contract regarding the collection, display and distribution of
personal data via the gTLD WHOIS service.
Create goals for the procedure
which include:
Ensuring that ICANN staff is
informed of a conflict at the earliest appropriate
juncture;
Resolving the conflict, if
possible, in a manner conducive to ICANN's Mission, applicable Core Values
and the stability and uniformity of the Whois system;
Providing a mechanism for the
recognition, if appropriate, in circumstances where the conflict cannot be
otherwise resolved, of an exception to contractual obligations to those
registries/registrars to which the specific conflict applies with regard to
collection, display and distribution of personally identifiable data via the
gTLD WHOIS service; and
Preserving sufficient
flexibility for ICANN staff to respond to particular factual situations as
they arise.
The GNSO recommends the ICANN staff consider the advice given
in the task force report as to a recommended
procedure.”
In addition, I think resolution#20050602-02
http://gnso.icann.org/en/policies/terms-of-reference.html (made by GNSO prior to resolution#20051128-05) on the Terms
of Reference for the combined WHOIS Task Force might assist us to understand the
rationale behind the policy.
Regards,
Raymond
_________________________________________________
RAYMOND
HO FCIArb, LLM(Lond),
MSocSc(HK), LLB(Hons)(HK)
Independent
Arbitrator
Suite 21, Level 4, 401-3, Cyberport 1, 100
Cyberport Road, Hong Kong.
Sent: Thursday, April 02, 2015 8:04 AM
Subject: [IAG-WHOIS conflicts] Follow up from IAG
call
Dear IAG members,
Thank you for a productive meeting earlier today. To follow up, these
points that emerged from the discussion may be useful “action items” for the
group to consider prior to the next call:
(1) On what would be adequate and practicable to satisfy the policy
that a registry or registrar “credibly demonstrate” that it is legally prevented
from complying with its contractual obligations regarding its collection,
display or distribution of Whois data – in other words, what the appropriate
“triggers” for invoking the procedure should be:
The IAG may find the report of public comments received to the proposal to
review the procedure, as well as the actual public comments themselves, helpful
in continuing its discussions on this issue. These documents can be found on the
IAG wiki space as well as here:
https://www.icann.org/public-comments/whois-conflicts-procedure-2014-05-22-en.
Your further deliberations will be critical to taking forward some of the
suggestions outlined in the discussion paper that Jamie had circulated, to
ensure that future discussions center on suggestions made by the community (as
reflected in the public comments received) and the IAG.
(2) On whether, in addition to the procedure, the underlying policy
itself needs to be reviewed (noting that the IAG’s mandate is limited to
recommending such a review, if any, to the GNSO, as the IAG is not chartered as
a policy making body):
The IAG may find it helpful to list and document those elements and/or
steps in the current procedure that need to be changed, and do the same for the
underlying policy. This exercise should be of assistance in both framing further
discussions of the IAG beyond the triggers and on the various other aspects of
the procedure, as well as identifying the specific rationale for, and elements
that require reviewing, in the policy, if any. The procedure can be found here:
https://www.icann.org/resources/pages/whois-privacy-conflicts-procedure-2008-01-17-en
and the policy, as approved by the GNSO Council and subsequently by the ICANN
Board, is contained in the GNSO Council’s resolution here:
http://gnso.icann.org/en/council/resolutions#200511.
ICANN staff will look into creating a Google Docs workspace, as requested
on the call, in the hopes of furthering the IAG’s deliberations on these and the
other topics outlined in the mission and scope for the group.
Thanks and cheers
Mary
Mary Wong
Senior Policy Director
Internet Corporation for Assigned Names & Numbers
(ICANN)
Telephone: +1 603 574 4892
Email: mary.wong@icann.org
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