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 From Capetown: "Bottom" hits staff wall on way "up"
posted by Mueller on Friday December 03 2004, @01:26AM
Some of the weaknesses in ICANN's vaunted "bottom up" policy making process were revealed in the early stages of the Capetown meeting.
A GNSO Task Force
developed two recommendations that will be sent out for public comment. One would require
"conspicuous notice" to domain name registrants of the data privacy implications of the WHOIS.
The second defines a procedure for reconciling conflicts between national privacy laws and the
WHOIS data display requirements of the ICANN accreditation contract. The second TF
recommendation ran into two forms of trouble. First, the registrars, whose representatives
on the task force agreed to the procedure and in fact were defining forces in it, proved
to be unable to unify around it due to rather petty competitive concerns. More
disturbingly, perhaps, was that ICANN's staff registered objections to it.
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In discussions with the NCUC, Paul Verhoef expressed concerned about the presumption that the ICANN contract is illegal. He also expressed concern about ICANN becoming a registrars' counsel, being required to work out what is legal and what is not. The first comment indicates that ICANN Staff was not paying attention for an extended period of time; the second comment indicate that Verhoef did not have a good grasp of the proposed procedure. Regarding the presumption of illegality, the TF report issued back in July 2004 already noted that "The Task Force belives that there is an ongoing risk of conflict between a registrars or registries legal obligations under local privacy laws and their contractual obligations to ICANN." And indeed it has been known since the Rome meeting in March 2004, when Giovanni Buttarelli of Italy and George Papapvlou of the EU spoke at the ICANN meeting, that Whois as conducted now is inconsistent with the European Union's Privacy Directive. Regarding the practical objections, the procedure does NOT require ICANN to become a lawyer for any registrar, but simply requires it to be informed of governmental investigations and demands for changes in Whois practices. Far from encouraging gaming by registrars, the procedure "calls the bluff" of any registrar who attempts to change their Whois practices on the basis of privacy law, requiring them to notify ICANN of the specific law under which they are challenged and provide contact information of the specific government official initiating the challenge.
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