Bad ICANN Staff Response to Whois reform

[Milton Mueller]

FYI, attached below is Paul Verhoef's very bad response to the Whois TF
proposal to create an "exceptions" procedure that would allow registrars
to comply with local privacy laws by adjusting their Whois practices to
conform to local law.

This response is deeply troubling on two levels. Most important is the
process issue. Under ICANN's structure, policy regarding domain names is
supposed to be developed in a "bottom up" process that involves
consensus among the constituencies in the GNSO. (Never mind the fact
that the consituency structure itself is biased - when the
constituencies can reach unanimous agreement, as they did in this case,
it is pretty important and should be respected).

However, the response below indicates that Paul Verhoef and ICANN's
General Counsel, Jeffries have their own ideas of what the policy should
be, and are attempting to veto anything that does not conform to those
ideas. The response also shows, as I charged in an ICANNWatch article,
that the ICANN staff does not really understand what was proposed nor
did they adequately follow the discussions and process used to develop
the procedure.

The good news is that the whole GNSO is united in viewing this response
as uninformed and inappropraite. Direct discussions with Verheof and
Jeffries are being scheduled. We have also received a supportive note
from Board member Michael Palage.

In international policy making organizations, rthere is always a danger
that secretariat staff usurps too much of the power to dictate policy,
or subordinates policy issues to its own convenience. That is what seems
to be happening here.

Council members: if you need more information about this issue, feel
free to contact me by phone or email

--MM

From:   Paul Verhoef [  <mailto:paul.verhoef at icann.org>
mailto:paul.verhoef at icann.org]
Sent:   20 December 2004 21:12
To:     'dow1-2tf at gnso.icann.org'; 'jordyn at confusion.net'
Cc:     'Bruce Tonkin'; 'Dan Halloran'; 'Barbara Roseman';
'gnso.secretariat at gnso.icann.org'
Subject:

        TO: Task Force 1/2 co-chair

        Dear Jordyn,

        I have consulted with our operations and legal staff, and have
developed the following informal feedback concerning Task Force 1/2's
draft recommendation:

        1. Registries and registrars should of course not enter
contracts that would be illegal for them to perform.

        2. Fair competition rules dictate that registries and registrars
should not be able to gain a competitive advantage by choosing to
operate from a jurisdiction that has purportedly outlawed compliance
with part of the Registrar Accreditation Agreement.

        3. Without careful study, action to address the concerns raised
by TF1/2 could open loopholes to compliance with the RAA that would hurt
data accuracy, consumer protection, and other authorised uses of Whois
data.

        4. The recommendation is drafted broadly, and could be read to
require ICANN to allow violations of the RAA except to preserve
stability or security.  The draft report appears to give registrars and
registries the right to unilaterally breach the RAA, as long as they
give notice to ICANN.  ICANN would be unable to take any reaction to
ensure compliance without formal action by the Board of Directors,
following a process that includes publishing a report that could contain
priviliged and confidential legal advice from ICANN's attorneys.

        5. The recommendation posits specific activities for the ICANN
General Counsel's office, and prescribes actions to the GC's office
which may be dealt with more appropriately by policy development,
registrar/registry liaison or ICANN's Global Partnerships departments.
The specificity of actions described also seems like micro-management of
ICANN staff resources in what is supposed to be a policy discussion.

        6. In light of the serious concerns meant to be addressed by the
recommendation, and the issues outlined above with the initially
suggested approach, might it be preferable to focus GNSO attention on
developing improvements to Whois policies that will allow for the
broadest possible harmony with local regulations, and then continue to
leave it up to individual companies to determine whether they can
undertake the obligations set forth in ICANN policies and agreements in
light of local requirements?

        Thank you for asking for our feedback.  I hope this is helpful
to you and the task force.  I look forward to providing further
assistance as you may require.

        Best regards,
Paul


        ____________________________________
Paul Verhoef
Vice President Policy Development Support
ICANN
6 Rond Point Schuman, Bt.5
B-1040 Brussels, Belgium
Tel.: +32.2.234 7872
Fax: +32.2.234 7848
 <http://www.icann.org> www.icann.org