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:[log in to unmask]> mailto:[log in to unmask]] Sent: 20 December 2004 21:12 To: [log in to unmask]; [log in to unmask] Cc: 'Bruce Tonkin'; 'Dan Halloran'; 'Barbara Roseman'; [log in to unmask] 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