Volker I like that option If ICANN disagree with the opinion or have issues with it they can challenge it. They’ve done this to a greater or lesser degree with the data retention waivers. And as Allen Grogan noted on the call a couple of weeks ago, it works pretty well. It might also be useful to see how much support there are for the two proposals. Regards Michele -- Mr Michele Neylon Blacknight Solutions Hosting, Colocation & Domains http://www.blacknight.host/ http://blog.blacknight.com/ http://www.blacknight.press - get our latest news & media coverage http://www.technology.ie Intl. +353 (0) 59 9183072 Direct Dial: +353 (0)59 9183090 Social: http://mneylon.social Random Stuff: http://www.michele.irish ------------------------------- Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty Road,Graiguecullen,Carlow,Ireland Company No.: 370845 From: Volker Greimann Date: Wednesday 10 June 2015 17:11 To: Michele Neylon, Jamie Hedlund, "\"whois-iag-volunteers@icann.org<mailto:whois-iag-volunteers@icann.org>\"@mail-01.key-systems.net" Subject: Re: [IAG-WHOIS conflicts] Dual Trigger Proposal Hi Bradley, to be frank, this is getting ridiculous. The opinion of the law firm is everything we have at our disposal and as the law is not written to specific cases, there alsways will be room for interpretation, so "may" may be everything we can get. Law is always subject to interpretation and what has been the accepted interpretation of the law may change overnight, for example if there is a ruling by a higher court. I therefore propose a turn-around: If a contracted party has provided a legal opinion as required by the agreement and ICANN for whatever reason does not want to recognize the findings of this opinion, ICANN may, at its own cost, try to obtain a different legal opinion that states unequivocally that the implementation of XYZ absolutely and under any circumstance does not violate applicable law, and further may indemnify the contracted party in full for any damages, loss, etc the contracted party may suffer as a result of implementing XYZ when it is found to be in violation of applicable law after all. I do not think this is unreasonable at all, after all, ICANN should only be trying to enforce contractual obligations that are not in violation of applicable law. If ICANN makes a mistake in its evaluation, it should bear the legal and financial responsibility towards its contracted parties for forcing to do something they told them was a violation of national law. Steve is entitled to an opinion, but he has no role to play in the contractual relationship between ICANN and its contracted parties. If he believes a legal opinion does not reflect the actual law, he may advise ICANN of this fact and encourage ICANN to obtain its own legal opinion. So essentially, I am asking ICANN to put its money where its mouth is. Best, Volker From: <whois-iag-volunteers-bounces@icann.org<mailto:whois-iag-volunteers-bounces@icann.org>> on behalf of "Silver, Bradley" Date: Friday 22 May 2015 17:02 To: James Gannon, "whois-iag-volunteers@icann.org<mailto:whois-iag-volunteers@icann.org>" Subject: Re: [IAG-WHOIS conflicts] Dual Trigger Proposal James, all: Thanks for your edits, and thanks to Steve for the proposal introduced on the last call. My apologies for not being able to join the last discussion, but I have been able to review the transcript, and the various viewpoints expressed about the proposals on the table. I’ve also reviewed James’ draft and had the following comments: 1. My understanding of the “alternative” nature of Steve Metalitz’s proposal was that it would be an alternative to - not a replacement of –the existing proceeding as outlined in 1.1 of the Procedure. I see that Section 1.1. has been deleted in James’ draft. I support the inclusion of the proposal Steve submitted, as a means to provide flexibility to the trigger so that the affected registrar does not need to be in “receipt of notification of an investigation, litigation, regulatory proceeding or other government or civil action.” 2. Leading on from that, I don’t think it is useful to include as an alternative the possibility for an opinion from a law firm, even with the additional layers of consultation, for all the reasons which were expressed on the last call, and in prior discussions. Even the language proposed points to a lack of connection with the underlying policy, which requires a demonstration by the registrar that is actually legally prevented from complying, not that it might be. 3. A point that has been made a number of times in prior discussions is the need for a certain level of certainty and specificity as to the nature of the actual (not probable or theoretical) conflict, as part of the trigger mechanism – in keeping with the underlying policy. An opinion from a law firm does not meet that requirement, nor would an opinion or statement from a data authority without enforcement authority, or indeed any statement that comes from a body that is not specific to the registrar in question, and the specific contractual provisions and terms of service, as analyzed against national law of the relevant country. I would suggest further discussion about the proposal presented by Steve, and whether there are any ways to address some of the concerns expressed by others within that framework. Bradley Silver Chief Intellectual Property Counsel |Time Warner Inc. 1 Time Warner Center | New York, NY 10019-8016 P: 212 484 8869 | F: 212 658 9293 Am 10.06.2015 um 17:14 schrieb Michele Neylon - Blacknight: I’ve joined Adobe, but can’t even listen (forgot headphones in my room) Basically I think most of us support the proposal that James G put forward The IPC people don’t So why not put it to a vote? -- Mr Michele Neylon Blacknight Solutions Hosting, Colocation & Domains http://www.blacknight.host/ http://blog.blacknight.com/ http://www.blacknight.press - get our latest news & media coverage http://www.technology.ie Intl. +353 (0) 59 9183072 Direct Dial: +353 (0)59 9183090 Social: http://mneylon.social Random Stuff: http://www.michele.irish ------------------------------- Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty Road,Graiguecullen,Carlow,Ireland Company No.: 370845 From: Jamie Hedlund Date: Wednesday 10 June 2015 16:03 To: Michele Neylon Subject: Re: [IAG-WHOIS conflicts] Dual Trigger Proposal Are you able to join call now? Jamie Hedlund VP, Strategic Programs Global Domains Division ICANN +1.202.374.3969 (m) +1.202.570.7125 (d) jamie.hedlund@icann.org<mailto:jamie.hedlund@icann.org> From: Michele Neylon - Blacknight <michele@blacknight.com<mailto:michele@blacknight.com>> Date: Friday, May 22, 2015 at 19:10 To: Bradley Silver <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, James Gannon <james@cyberinvasion.net<mailto:james@cyberinvasion.net>>, "whois-iag-volunteers@icann.org<mailto:whois-iag-volunteers@icann.org>" <whois-iag-volunteers@icann.org<mailto:whois-iag-volunteers@icann.org>> Subject: Re: [IAG-WHOIS conflicts] Dual Trigger Proposal Bradley With all due respect I would have to forcefully disagree with you. I and others have outlined why we are supportive of the proposal as outlined previously and our position on this isn’t going to change. Discussing it further is futile. Regards Michele -- Mr Michele Neylon Blacknight Solutions Hosting, Colocation & Domains http://www.blacknight.host/ http://blog.blacknight.com/ http://www.blacknight.press - get our latest news & media coverage http://www.technology.ie Intl. +353 (0) 59 9183072 Direct Dial: +353 (0)59 9183090 Social: http://mneylon.social ------------------------------- Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty Road,Graiguecullen,Carlow,Ireland Company No.: 370845 From: <whois-iag-volunteers-bounces@icann.org<mailto:whois-iag-volunteers-bounces@icann.org>> on behalf of "Silver, Bradley" Date: Friday 22 May 2015 17:02 To: James Gannon, "whois-iag-volunteers@icann.org<mailto:whois-iag-volunteers@icann.org>" Subject: Re: [IAG-WHOIS conflicts] Dual Trigger Proposal James, all: Thanks for your edits, and thanks to Steve for the proposal introduced on the last call. My apologies for not being able to join the last discussion, but I have been able to review the transcript, and the various viewpoints expressed about the proposals on the table. I’ve also reviewed James’ draft and had the following comments: 1. My understanding of the “alternative” nature of Steve Metalitz’s proposal was that it would be an alternative to - not a replacement of –the existing proceeding as outlined in 1.1 of the Procedure. I see that Section 1.1. has been deleted in James’ draft. I support the inclusion of the proposal Steve submitted, as a means to provide flexibility to the trigger so that the affected registrar does not need to be in “receipt of notification of an investigation, litigation, regulatory proceeding or other government or civil action.” 2. Leading on from that, I don’t think it is useful to include as an alternative the possibility for an opinion from a law firm, even with the additional layers of consultation, for all the reasons which were expressed on the last call, and in prior discussions. Even the language proposed points to a lack of connection with the underlying policy, which requires a demonstration by the registrar that is actually legally prevented from complying, not that it might be. 3. A point that has been made a number of times in prior discussions is the need for a certain level of certainty and specificity as to the nature of the actual (not probable or theoretical) conflict, as part of the trigger mechanism – in keeping with the underlying policy. An opinion from a law firm does not meet that requirement, nor would an opinion or statement from a data authority without enforcement authority, or indeed any statement that comes from a body that is not specific to the registrar in question, and the specific contractual provisions and terms of service, as analyzed against national law of the relevant country. I would suggest further discussion about the proposal presented by Steve, and whether there are any ways to address some of the concerns expressed by others within that framework. Bradley Silver Chief Intellectual Property Counsel |Time Warner Inc. 1 Time Warner Center | New York, NY 10019-8016 P: 212 484 8869 | F: 212 658 9293 From:whois-iag-volunteers-bounces@icann.org<mailto:whois-iag-volunteers-bounces@icann.org> [mailto:whois-iag-volunteers-bounces@icann.org] On Behalf Of James Gannon Sent: Thursday, May 07, 2015 7:32 AM To: whois-iag-volunteers@icann.org<mailto:whois-iag-volunteers@icann.org> Subject: [IAG-WHOIS conflicts] Dual Trigger Proposal Hi All, In an effort to try and find a common ground, and after recognizing Steve’s input and comments on the call last night that his proposal needs not be the exclusive trigger I have tried to string together some draft language on what I am calling a Dual Trigger process. My changes have focused on step one being the trigger step, my changes to the remainder of the process have been minor, a change of ‘shall’ to ‘may’ in Section 2 to reflect the change in substance of the trigger mechanism. And the addition of Steve’s language to the Consultation period for a public comment period. Steve: I think I have faithfully reproduced your language here please let me know if I changed anything that changes the substance of your proposal. All: I would appreciate comments or input on the proposal. Please turn off tracking changes on formatting under the ‘Show Markup’ pane if you get spammed with changes related to formatting. As always my battle with Word and its method of dealing with formatting revisions continues! Please treat this as a Zero draft for discussion. James Gannon Director Cyber Invasion Ltd Dun Laoghaire, County Dublin, Ireland Office: +353 (1)663-8787 Cell: +353 (86)175-3581 Email:james@cyberinvasion.net<mailto:james@cyberinvasion.net?subject=Via:%20Email%20Signature> GPG: https://keybase.io/jayg ================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. ================================================================= -- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. 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