Thanks for sending, I am having trouble with attachments but I got it.  
I think I have made all the corrections now, here is the amended version 
6, I believe you can post it.
cheers Stephanie
On 2014-08-01, 6:11, Rafik Dammak wrote:
>
> Hi Stephanie,
>
> I think joy included her language in the attached document, can you 
> please merge that with the latest draft you circulated?
> Lesson learned: using a shared online document and avoid the word 
> document versioning nightmare.
>
> Best,
>
> Rafik
>
> ---------- Forwarded message ----------
> From: "joy" <[log in to unmask] <mailto:[log in to unmask]>>
> Date: Jul 31, 2014 3:05 AM
> Subject: Re: [NCSG-Discuss] Draft Comments for Whois Proceeding
> To: <[log in to unmask] <mailto:[log in to unmask]>>
> Cc:
>
> Hi - thanks everyone for the effort on this
> I have also added some information on the recent report of the UN High
> Commissioner for Human Rights on the right to privacy in the digital age
> - which includes aspects relevant for companies - plus one or two other
> minor comments
> Hope you get these in time!
> Joy
>
> On 31/07/2014 4:17 a.m., Kathy Kleiman wrote:
> > Hi All,
> > Attached is the revised version of the comments. It has the changes of
> > Stephanie and Ed incorporated (tx you!) I have drafted it for Rafik's
> > signature and submission on behalf of the NCSG (feel free to add an
> > electronic signature, Rafik!).  (Track changes version showing edits
> > attached)
> >
> > If you could please use _this version _of the revised comments for
> > review and submission, that would be great.
> > Best,
> > Kathy
> >
> >
> > 
> -----------------------------------------------------------------------------------------------------------------------------------------------
> >
> > NCSG Response to the Questions of the
> >
> > /Review of the ICANN Procedure for Handling WHOIS Conflicts with
> > Privacy Law /
> >
> > 
> https://www.icann.org/public-comments/whois-conflicts-procedure-2014-05-22-en//
> >
> >
> > **
> >
> > The Noncommercial Stakeholders Group represents noncommercial
> > organizations and individual noncommercial users in their work in the
> > policy and proceedings of ICANN and the GNSO. We respectfully submit
> > as an opening premise that every legal business has the right and
> > obligation to operate within the bounds and limits of its national
> > laws and regulations. No legal business establishes itself to violate
> > the law; and to do so is an invitation to civil and criminal
> > penalties, in addition to reputational damage and a loss of the trust
> > of their customers and business partner. ICANN Registries and
> > Registrars are no different – they want and need to abide by their laws.
> >
> > To that end, Registries and Registrars strive to comply with their
> > national and local laws.They strive affirmatively and proactively to
> > follow the laws and regulations under which they operate as legal
> > entities. To do otherwise is to violate the purpose of a legal regime,
> > to threaten the well being of the company, and to expose Directors,
> > Officers and Employees to fines, jail, or civil litigation. In the
> > matter of protection of personal and confidential information, which
> > is a very newsworthy issue in the 21^st century, privacy practices are
> > a matter of consumer trust, and therefore high risk for those
> > operating an Internet business.Even if customers have obediently
> > complied with demands for excessive collection and disclosure of
> > personal information up to this point, in the current news furor over
> > Snowden and the cooperation of business with national governments
> > engaged in surveillance, this could change with the next news
> > story.The Internet facilitates successful privacy campaigns.
> >
> > Thus, it is wise and timely for ICANN to raise the questions of this
> > proceeding, /Review of the ICANN Procedure for Handling WHOIS
> > Conflicts with Privacy Law/ (albeit at a busy time for the Community
> > and at the height of summer; we expect to see more interest in this
> > time towards the Fall and recommend that ICANN not construe the small
> > number of comments received to date as a reflection of lack of
> > interest). We submit these comments in response to the issues raises
> > and the questions asked.
> >
> > *Background*
> >
> > The /ICANN Procedure for Handling Whois Conflicts with Privacy Law
> > /was adopted in 2006 after years of debate on Whois issues. This
> > Consensus Procedure was the first step of recognition that data
> > protection laws and privacy law DO apply to the personal and sensitive
> > data being collected by Registries and Registrars for the Whois 
> database.
> >
> > But for those of us in the Noncommercial Users Constituency (now part
> > of the Noncommercial Stakeholders Group/NCSG) who helped debate, draft
> > and adopt this Consensus Procedure in the mid-2000s, we were always
> > shocked that the ICANN Community did not do more. At the time, several
> > Whois Task Forces were at work with multiple proposals which include
> > important and pro-active suggestions to allow Registrars and
> > Registries to come into compliance with their national and local data
> > protection and privacy laws.
> >
> > At the time, we never expected this Consensus Procedure to be an end
> > itself – but the first of many steps. We are glad the discussion is
> > now reopened and we support empowering Registrars and Registries to be
> > in full compliance with their national and local data protection,
> > consumer protection and privacy laws – from the moment they enter into
> > their contracts with ICANN.
> >
> > We note there have been a number of recent decisions in higher courts
> > in various jurisdictions which impact the constitutional rights of
> > citizens to be free from warrantless disclosure and retention of their
> > personal information for law enforcement purposes.This reflects the
> > time it takes for data protection issues to wend their way to the high
> > courts for a ruling.We would urge ICANN, who otherwise sit on the
> > cutting edge of Internet technical issues, to reflect on their role as
> > a key global player in Internet governance.Do we lead or do we wait
> > until we are dragged into Court, to realize our responsibilities to
> > protect the fundamental rights of the citizens who depend on the
> > Internet to participate in modern society?//
> >
> > II. Data Protection and Privacy Laws – A Quick Overview of the
> > Principles that Protect the Personal and Sensitive Data of Individuals
> > and Organizations/Small Businesses
> >
> > It is important to stress that while the discourse about data
> > protection requirements at ICANN has tended to focus on the European
> > Union and its Data Commissioners, as represented in the Article 29
> > Working Party on Data Protection, there are a great many countries
> > which have data protection law in place, including Canada, Mexico,
> > much of South America, Korea, Japan, Australia, New Zealand,
> > Singapore, South Africa, and many others.It is therefore quite
> > puzzling that ICANN does not assemble a working group to study the
> > matter and develop a harmonized approach to the issue, rather than
> > take this rather odd approach of forcing registrars and registries to
> > break national and local law.
> >
> > It is also important to note that there are many levels of data
> > protection law, from local municipal law to state and national
> > law.There is also sectoral law which applies to certain sectors.It
> > would be a reasonable approach to develop a policy that reflects
> > harmonized best practice, and abide by the policy rather than engage
> > in this adversarial approach to local law.Data protection law is
> > overwhelmingly complaints based, so it is inherently difficult for
> > registrars and registries to get a ruling from data protection
> > commissioners absent a complaint and a set of facts.
> >
> > In this regard, we also find it puzzling that despite the fact that
> > the Article 29 Working Party wrote to ICANN senior management to
> > indicate that they have reviewed the matter and reached an opinion
> > that the practices involving WHOIS do indeed violate EU law, ICANN has
> > not taken that message and developed a policy that guides their data
> > protection practices, starting with a clear statement of limited
> > purpose for the collection, use, and disclosure of personal information.
> >
> > The NCSG held a privacy meeting at the London ICANN 50 meeting, which
> > was quite well attended.While we did not specifically address or
> > attempt to brainstorm this particular problem, we feel it is safe to
> > summarize the following points:
> >
> > ·There is considerable interest, in civil society, in the protection
> > of personal information at ICANN.
> >
> > ·Policies and procedures such as were developed for the 2013 RAA are
> > very puzzling to those who are engaged in government and business in
> > the privacy field.This is not 1995, when the EU Directive on data
> > protection was passed and was still controversial.ICANN needs to catch
> > up with global business practice, preferably by developing binding
> > corporate rules which would take a harmonized approach to the
> > differing local laws. It is not appropriate for all data protection to
> > fall away in jurisdictions where there is not yet a data protection
> > law that applies to the provision of internet services, including
> > domain name registration.
> >
> > ·NCSG is ramping up a team of volunteers to provide more detailed
> > expertise and input on a number of privacy and free speech
> > issues.While civil society is inherently stretched and short of
> > resources, this is an issue that they care deeply about, and our
> > outreach has begun to bear fruit in engaging others who are outside
> > the immediate sphere of ICANN membership.This is important as they are
> > part of the constituency we seek to represent.
> >
> > ICANN spends considerable time on technical parameters, data accuracy,
> > and retention.More time needs to be spent on data protection policy.In
> > this respect, more expertise would be required as there is very little
> > evidence of privacy expertise in the ICANN community.
> >
> > III*/./*Questions asked of the Community in this Proceeding
> >
> > The ICANN Review Paper raised a number of excellent questions. In
> > keeping with the requirements of a Reply Period, these NCSG comments
> > will address both our comments and those comments we particularly
> > support in this proceeding.
> >
> > However we would first like to note that the paper appears to start
> > from the position that the procedures involved in this waiver process
> > simply need to be tweaked.Operating under the first principle that all
> > business must comply with local law, there is a need for ICANN to
> > embrace data protection law as a well recognized branch of law which
> > codifies well recognized business best practices with respect to the
> > confidentiality of customer data.We respectfully submit that, if ICANN
> > had a professional privacy officer, it is highly unlikely that he/she
> > would recommend to senior management that the current approach be
> > entertained in 2014.
> >
> > 1.1Is it impractical for ICANN to require that a contracted party
> > already haslitigation or a government proceeding initiated against it
> > prior to being able to invoke the Whois Procedure?
> >
> > 1.1 Response: Yes, it is completely impractical (and ill-advised) to
> > force a company to violate a national law as a condition of complying
> > with their contract. Every lawyer advises businesses to comply with
> > the laws and regulations of their field. To do otherwise is to face
> > fines, penalties, loss of the business, even jail for officers and
> > directors. Legal business strives to be law-abiding; no officer or
> > director wants to go to jail for her company's violations. It is the
> > essence of an attorney's advice to his/her clients to fully comply
> > with the laws and operate clearly within the clear boundaries and
> > limits of laws and regulations, both national, by province or state
> > and local.
> >
> > In these Reply Comments, we support and encourage ICANN to adopt
> > policies consistent with the initial comments submitted by the
> > European Commission:
> >
> > -that the Whois Procedure be changed from requiring specific
> > prosecutorial action instead to allowing “demonstrating evidence of a
> > potential conflict widely and e.g. accepting information on the
> > legislation imposing requirements that the contractual requirements
> > would breach as sufficient evidence.” (European Commission comments)
> >
> > We also agree with Blacknight:
> >
> > -“It's completely illogical for ICANN to require that a contracting
> > party already has litigation before they can use a process. We would
> > have loved to use a procedure or process to get exemptions, but
> > expecting us to already be litigating before we can do so is, for lack
> > of a better word, nuts.” (Blacknight comments in this proceeding).
> >
> > -
> >
> > 1.1a How can the triggering event be meaningfully defined?
> >
> > This is an important question. Rephrased, we might ask together –what
> > must a Registry or Registrar show ICANN in support of its claim that
> > certain provisions involving Whois data violate provisions of national
> > data protection and privacy laws?
> >
> > NCSG respectfully submits that there are at least four “triggering
> > events” that ICANN should recognize:
> >
> > -Evidence from a national Data Protection Commissioner or his/her
> > office (or from a internationally recognized body of national Data
> > Protection Commissioners in a certain region of the world, including
> > the Article 29 Working Party that analyzes the national data
> > protection and privacy laws) that ICANN's contractual obligations for
> > Registry and/or Registrar contracts violate the data protection laws
> > of their country or their group of countries;
> >
> > -Evidence of legal and/or jurisdictional conflict arising from
> > analysis performed by ICANN's legal department or by national legal
> > experts hired by ICANN to evaluate the Whois requirements of the ICANN
> > contracts for compliance and conflicts with national data protection
> > laws and cross-border transfer limits) (similar to the process we
> > understand was undertaken for the data retention issue);
> >
> > -Receipt of a written legal opinion from a nationally recognized law
> > firm or qualified legal practitioner in the applicable jurisdiction
> > that states that the collection, retention and/or transfer of certain
> > Whois data elements as required by Registrar or Registry Agreements is
> > “reasonably likely to violate the applicable law” of the Registry or
> > Registrar (per the process allowed in RAA Data Retention
> > Specification); or
> >
> > -An official opinion of any other governmental body of competent
> > jurisdiction providing that compliance with the data protection
> > requirements of the Registry/Registrar contracts violates applicable
> > national law (although such pro-active opinions may not be the
> > practice of the Data Protection Commissioner's office).
> >
> > The above list draws from the comments of the European Commission,
> > Data Retention Specification of the 2013Registrar Accreditation
> > Agreement, and sound compliance and business practices for the ICANN
> > General Counsel's office.
> >
> > We further agree with Blacknight that the requirements for triggering
> > any review and consideration by ICANN be: simple and straightforward,
> > quick and easy to access.
> >
> > 1.3Are there any components of the triggering event/notification
> > portion of the RAA's Data Retention waiver process that should be
> > considered as optional for incorporation into a modified Whois 
> Procedure?
> >
> > 1.3 Response:Absolutely, the full list in 1.1a above, together with
> > other constructive contributions in the Comments and Reply Comments of
> > this proceeding, should be strongly considered for incorporation into
> > a modified Whois Procedure, or simply written into the contracts of
> > the Registries and Registrars contractual language, or a new Annex or
> > Specification.
> >
> > We respectfully submit that the obligation of Registries and
> > Registrars to comply with their national laws is not a matter of
> > multistakeholder decision making, but a matter of law and compliance.
> > In this case, we wholeheartedly embrace the concept of building a
> > process together that will allow exceptions for data protection and
> > privacy laws to be adopted quickly and easily.
> >
> > 1.4Should parties be permitted to invoke the Whois Procedure before
> > contracting with ICANN as a registrar or registry?
> >
> > 1.4 Response: Of course, Registries and Registrars should be allowed
> > to invoke the Whois Procedure, or other appropriate annexes and
> > specifications that may be added into Registry and Registrar contracts
> > with ICANN. As discussed above, the right of a legal company to enter
> > into a legal contracts is the most basic of expectations under law.
> >
> > 2.1Are there other relevant parties who should be included in this step?
> >
> > 2.1 Response: We agree with the EC that ICANN should be working as
> > closely with National Data Protection Authorities as they will allow.
> > In light of the overflow of work into these national commissions, and
> > the availability of national experts at law firms, ICANN should also
> > turn to the advice of private experts,such as well-respected law firms
> > who specialize in national data protection laws. The law firm's
> > opinions on these matters would help to guide ICANN's knowledge and
> > evaluation of this important issue.
> >
> > 3.1How is an agreement reached and published?
> >
> > 3.1 Response. As discussed above, compliance with national law may not
> > be the best matter for negotiation within a multistakeholder process.
> > It really should not be a chose for others to make whether you comply
> > with your national data protection and privacy laws. That said, the
> > process of refining the Consensus Procedure, and adopting new policies
> > and procedures, or simply putting new contract provisions, annexes or
> > specifications into the Registry and Registrar contracts SHOULD be
> > subject to community discussion, notification and review.But once the
> > new process is adopted, we think the new changes, variations,
> > modifications or exceptions of Individual Registries and Registrars
> > need go through a public review and process. The results, however,
> > Should be published for Community notification and review.
> >
> > We note that in conducting the discussion with the Community on the
> > overall or general procedure, policy or contractual changes, ICANN
> > should be assertive in its outreach to the Data Protection
> > Commissioners. Individual and through their organizations, they have
> > offered to help ICANN evaluate this issue numerous times. The Whois
> > Review Team noted the inability of many external bodies to monitor
> > ICANN regularly, but the need for outreach to them by ICANN staff
> > nonetheless:
> >
> > *Recommendation 3:Outreach*
> >
> > *ICANN should ensure that WHOIS policy issues are accompanied by
> > cross-community outreach, including outreach to the communities
> > outside of ICANN with a specific interest in the issues, and an
> > ongoing program for consumer awareness. (Whois Review Team Final 
> Report)*
> >
> > This is a critical policy item for such outreach and input.
> >
> > 3.2If there is an agreed outcome among the relevant parties, should
> > the Board be involved in this procedure?
> >
> > 3.2 Response: Clearly, the changing of the procedure, or the adoption
> > of a new policy or new contractual language for Registries and
> > Registrars, Board oversight and review should be involved. But once
> > the new procedure, policy or contractual language is in place, then
> > subsequent individual changes, variations, modifications or exceptions
> > should be handled through the process and ICANN Staff – as the Data
> > Retention Process is handled today.
> >
> > 4.1Would it be fruitful to incorporate public comment in each of the
> > resolution scenarios.
> >
> > 4.1 Response: We think this question means whether there should be
> > public input on each and every exception?We respectfully submit that
> > the answer is No. Once the new policy, procedure or contractual
> > language is adopted, then the process should kick in and the
> > Registrar/Registry should be allowed to apply for the waiver,
> > modification or revision consistent with its data protection and
> > privacy laws.Of course, once the waiver or modification is granted,
> > the decision should be matter of public record so that other
> > Registries and Registrars in the jurisdiction know and so that the
> > ICANN Community as a whole can monitor this process' implementation
> > and compliance.
> >
> > Step Five: Public notice
> >
> > 5.2Is the exemption or modification termed to the length of the
> > agreement? Or is it indefinite as long as the contracted party is
> > located in the jurisdiction in question, or so long as the applicable
> > law is in force.
> >
> > 5.2 Response:We agree with the European Commission in its response,
> >
> > “/By logic the exemption or modification shall be in place as long as
> > the party is subject to the jurisdiction in conflict with ICANN rules.
> > If the applicable law was to change, or the contacted party moved to a
> > different jurisdiction, the conditions should be reviewed to assess if
> > the exemption is still justified.”/
> >
> > //
> >
> > But provided it is the same parties, operating under the same laws,
> > the modification or change should continue through the duration of the
> > relationship between the Registry/Registrar and ICANN.
> >
> > 5.3Should an exemption or modification based on the same laws and
> > facts then be granted to other affected contracted parties in the same
> > jurisdiction without invoking the Whois Procedure.
> >
> > 5.3 Response. The European Commission in its comments wrote, and we
> > strongly agree: /“the same exception should apply to others in the
> > same jurisdiction who can demonstrate that they are in the same
> > situation.” /Further, Blacknight wrote and we support: /“if ANY
> > registrar in Germany, for example, is granted a waiver based on German
> > law, than ALL registrars based in Germany should receive the same
> > treatment.” /Once a national data protection or privacy law is
> > interpreted as requiring and exemption or modification, it should be
> > available to all Registries/Registrars in that country.
> >
> > Further, we recommend that ICANN should be required to notify each
> > gTLD Registry and Registrar in the same jurisdiction as that of the
> > decision so they will have notice of the change.
> >
> > We thank ICANN staff for holding this comment period.
> >
> > Respectfully submitted,
> >
> > Rafik Dammak
> >
> > Chairman, NCSG
> >
> > On behalf of the Noncommercial Stakeholders Group
> >
> >
> >
>