From: [log in to unmask] [mailto:[log in to unmask]] On Behalf Of Philip Sheppard
Sent: Wednesday, August 29, 2007 5:20 AM
To: 'GNSO Council'
Subject: [council] WHOIS - final WG report

This was a group of 70 most of whom spoke for themselves or their organisation. No attempt was made to assess support by GNSO constituency or other interest grouping. No votes were conducted. Agreed recommendations were supported unanimously or by a substantial majority present at the relevant meeting when that item was discussed, and then received insufficient objections to downgrade them.

Mawaki, maybe you could forward this to the council list, or otherwise challenge it.

In fact, there are specific items where Philip received notice that a large number of WG participants did not agree to an item, and _no_ expressions of support or at most one or two, and nevertheless continued to describe them as "agreed."

Here are specific examples, all documented on the WG list. The most egregious is the following:

On 7 August I sent a message in response to Report v. 1.6 with a fairly long list of changes (see below), many of which requested downgrading expressions of "agreement" to "support" or lower. From Aug. 7 - 9 formal expressions of support for ALL those changes were made by Avri Doria, Wendy Seltzer, Dan Krimm, Ken Stubbs, and David Maher. There were only two expressions of opposition to the changes after they were posted. I do not see how anyone can pretend that reports that generated formal objections from 6 members of the working group and only 2 expressions of opposition were "supported unanimously or by a substantial majority." The tenor of opinion on the list was not any different from what occurred on conference calls; indeed, two registrars basically agreed with the position on conference calls but did not weigh in on the list.

When report version 1.8 was released, the same objections were raised, and were again ignored.

The assessments of agreement in the report are completely discredited. I wish it were not true, but it is.

Milton Mueller, Professor
Syracuse University
School of Information Studies
------------------------------
Internet Governance Project:
http://internetgovernance.org
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The Convergence Center:
http://www.digitalconvergence.org

These proposed changes have support from NCUC representatives and also some others.

Section 1:

1. On line 88, replace "while simultaneously improving the ability to address issues relating inter alia to other public interest goals of consumer fraud and acts of bad faith by certain Registrants"...

...with the phrase "while retaining the ability of legitimate parties to act against fraud and other illegal activities involving domains"

2. Delete lines 92-95. These lines inaccurately characterize the debate and are not needed.

3. Delete lines 114-119. These lines inaccurately characterize one side of the debate and are not needed.

Section 2:

Delete lines 178-179, add to "Support," a line saying, There is "Support" for the idea that implementation of [OPoC] verification would be too burdensome.

Line 229: Add to "Support: "The registrant alone must get consent."

Add to list of AGREEDs at line 247: A system of centralised accreditation of OPOCs by ICANN is neither scaleable nor practical."

Section 3:

At line 313-14, change the phrase: "specify timely deadlines for actions by the OPOC" to "recommend guidelines for timely actions by the OPOC"

Downgrade from AGREE to SUPPORT:

Line 392: "There is a concern that if the Access function were to be subject to an authentication mechanism, then REVEAL may be needed in particular for the pursuit of criminal activity."

DELETE from line 406-410: "suspected fraudulent activity, suspected intellectual property infringement, suspected false declaration as to being a natural person, or where other criminal, civil or administrative laws may be infringed.

OR reasonable evidence of inaccurate WHOIS data."

(Reason: "reasonable evidence of actionable harm" is sufficient. False declaration and inaccurate Whois data are already covered by existing ICANN challenge procedures, no need to add it to the OPOC process.)

UPGRADE TO SUPPORT:

Line 418: One view was that the RELAY test should be cumulative (an “AND” option).

Section 4:

Line 479: Downgrade from AGREE to SUPPORT. Many registrars disagree with this, and so do some users.

Section 5:

Replace sentence at lines 543-545: "Sole traders working out of their homes can legitimately be classified as natural persons."

Section 6:

Replace line 557 (6.3 type access) with: "Query-based access to any domain but with contractual or legal restriction of queries to the records of particular domains and/or registrants needed to support a specific investigation."

Add to end of first sentence at line 598: "but with contractual/legal restriction of queries to the records of particular domains and/or registrants needed to support a specific investigation."

At Lines 598-599, delete "Access would take place when there is “reasonable evidence of actionable harm.”"

Modify AGREED at line 626-630 to: "There were circumstances where LEAs must have access described above (one or more of 6.2, 6.3) and that private actors are in some cases entitled to have access described in 6.2 above."

Add: "There is SUPPORT for the idea that there were circumstances where LEAs must have access described above (one or more of 6.2, 6.3, 6.4) and that private actors must have access described above (one or more of 6.2 and 6.3)."

Line 638-639: Upgrade to SUPPORT the statement "Private actors should be denied access described under 6.4."

Line 654-658 should not be characterized as "AGREEMENT" it is rather a description. Add to this list of options, "Self-certification backed up by a signed affidavit and penalties for misrepresentation."

Lines 682-684: this is not AGREED, at best it commands SUPPORT, and is probably an ALTERNATE VIEW.

Lines 689-691: Change "Certain user members believed self-declaration was insufficient and that authentication was essential: thus OPOC implementation should wait until authentication systems existed" to "Certain user members believed self-declaration was insufficient and that authentication was essential: thus no access of the type 6.3 or 6.4 should be granted to private actors."

Upgrade the Statement in line 689-691 to SUPPORT, from "alternate view"

In all references to "challenge procedure" delete "by the registrar"