Board minutes on Telnic WHOIS Proposal

[Milton L Mueller]

> -----Original Message-----
> Kurt Pritz indicated further, that issues were raised
> regarding what the proposed change should be measured
> against, and cited three available tools: 1) the
> process for considering registry services (funnel
> process); 2) the Whois Procedure for Conflicts with
> National Laws; and 3) a request for registry contract
> change. In this case the staff is using all three
> standards.

Unacceptable. This is clearly a case of clash between national law and Whois contracts and should be evaluated exclusively under that procedure. That policy has been adopted unanimously by the GNSO and passed by the Board. It is an unfair case of double-standards and confusion to say that ICANN can apply any other standard that some constituency demands in order to prevent it from happening.

> The registry services funnel process provides a
> threshold question to evaluate whether there are
> stability or security issues associated with the
> proposal. In this case no such issues were identified.

Duh.

> The Whois Procedure for Conflicts with National Laws
> is not yet implemented pending GAC input, however,

What? Tell me what part of the ICANN by laws gives GAC the authority to veto a policy? Moreover, GAC has already passed its Whois principles, which clearly establish a basis for recognizing differences in national law.

> interim GAC advice on this procedure was published at
> the ICANN San Juan meeting. This draft procedure
> suggests public consultation and requires Board
> approval. 

That was already part of the policy. It is perfectly obvious that one government (guess which one?) is gaming the system to prevent a policy change they do not agree with. If this is allowed, and if linked to an after the fact GAC veto on any policy, then there is no reason to have an ICANN at all. ICANN was supposed to move us away from conflicting territorial jurisdictions.  

> First, is an evaluation of whether there is government
> action that might conflict with ICANN contractual
> Whois requirements? Telnic is not scheduled to start
> registry operations until early 2008 and there is a
> question as to whether there is a government action
> absent an actual violation of a national law.

This kind of catch-22 is reprehensible. As Janis Karklins notes later on in the minutes, no sane business operation is going to violate the law first, and ask ICANN to change their contract later. Anyone who raises this as an issue is playing dirty, pure and simple. 

> The second issue is whether the modifications to the
> proposal made by Telnic sufficiently address concerns
> raised by members of the community. As a result of

Huh? They completely caved in to the IPR lobby. See below:

> The 13-step
> procedure for an interested party with a reason to
> gain access to full information has been eliminated.
> It has been replaced with a streamlined process where
> qualified individual have full access through a user
> name and password issued by Telnic. In another change,
> Telnic abolished a fee for the service, replacing it
> with some additional authentication procedure. With
> this and other changes, the test is whether the
> modifications to the proposal made by Telnic
> sufficiently address concerns raised by members of the
> community and whether the changes preserves the
> ability to comply with contractual obligations to the
> greatest extent possible. To answer those questions,
> ICANN has held follow-up consultations with the UK
> Information Commissioner’s Office and the IP
> constituency. 

Why no consultations with registrants and other privacy advocates? 

> The next step will be to post the
> amended proposal by Telnic and weigh community
> response as part of this analysis.

By "community," you mean, of course, the intellectual property lobby.
 
> [Karklins] is not optimistic that the GAC will be able to
> complete this work because of serious difference in
> approach to data protection in different countries.

That's why GAC is supposed to be advisory, not policy making. A disagreement among governments should NOT prevent ICANN from formulating its own policy. 

> Janis noted as a personal comment on Telnic—no
> responsible business would engage on any operation
> that would lead them to the court. Instead they would
> try to find a solution to get the procedure right from
> the start. ICANN should be sensitive to this approach.

Thank God someone in that meeting had some common sense.

> Bruce Tonkin noted in this debate is what a lot of
> lawyers want to see is written advice from a privacy
> commissioner and then challenge this advice. A privacy
> commissioner does not want to publish what could be
> used in court. Staff has done a lot of due diligence,
> spoken to UK GAC representative who has confirmed it
> is normal procedure that the Commission would provide
> advice in confidence. A lot of information relied on

Yes.

> The Chair noted that it might be that we will have
> difficulty in establishing a uniform policy for Whois
> data and may end up with regional or national
> policies. The policy would depend on where the data is

Oh, wonderful. Let's have regional or national domain name trademark disputes policies, too then. Let's have regional or national new TLDs as well. How about regional or national IDN implementations? Funny how it's ok to fracture the internet when the US government is out of step with the rest of the world. 

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