IPC Trip Assessment 2

The Protagonists:

• Chantelle Doerksen, ICANN
• Brian, Winterfeldt Law
• Mohamed Aslam, CROP
• Chris Mondini, ICANN
• Kiran Malancharuvil, IPC Secretary
• Brian Scarpelli, IPC Program Coordinator
• Hector Manoff, CROP

All the above are closely involved in the IPC's CROP ICANN62 process.

Who, What, When, Where, and Why concerning this funded CROP activity: 

This ICANN CROP funded trip commenced at Los Angeles Airport on June 25, 2018 [WHEN] by Copa Airlines for Panama City [WHERE]. Unfortunately the immigration lines were long and tardy  and I could not reach the IPC outreach planning cocktails at the American Trade Hotel. However I met up with the protagonists and all of IPC leadership and membership as well as key persons in other communities [WHO] over the next 3 days.

The objective of the CROP trip was to attend key sessions impacting IPC members specifically and ICANN constituencies generally specifically under the GDPR legislation and utilize the ‘in person’ opportunity to align any divergence in their approach to Access to WHOIS data [WHAT] and work on the ongoing IPC goal of expanding and increasing the diversity of its membership; and meet up with Work Track 5 gTLD SubPro Working Group to understand the tardy progress on geo names [WHY]. Since CROP funding was for 3 nights I had to depart ICANN62 on June 28, 2018 by the evening flight.

This report tries to capture the extent to which the Proposed CROP Goals were accomplished.

This report tries to capture the extent to which the Proposed CROP Goals were accomplished.

Goal #1 Attended ICANN62 IPC sessions and key takeaways noted below:

• 26 8-1015 GNSO IPC Closed Meeting
• 26 1215-1315 GNSO IPC Open Meeting
• 26 1515-1645 WHOIS/RDS
• 26 1700-1830 ACCRED
  
  

The focus was to lock in an access model to WHOIS which will pass muster the GDPR authorities i.e. ideally allow disclosure of personal data via the access model. Work in Progress on various approaches including Accreditation, Temp Sec and Unified Access Model. But no definitive clearance yet received for any any of the models from GDPR authorities. So effectively WHOIS is dark.

• 26 1330-1400 GAC Communique
• 27 915-1015 GAC on GDPR
• 27 14-15 GAC Communique Drafting
• 27 1515-1645 GAC Communique
• 27 17-1830 GAC Communique

Report: My initial comment is the communique is not very helpful in resolving the Access imbroglio for several reasons:

1. GAC seems to have rejected the Temp Spec initiatives and

2. Intentionally or otherwise compelled compliance of GDPR until the Unified Access Model is given birth - which is not happening in any hurry anyways and

3. Given no guarantees that the UAM will pass muster Article 29 parties when it is eventually born and

4. Tossed the ball back by cryptically stating that the ICANN board has not complied with 4 of its previous communique advice (San Juan communique advice reproduced below) without stating which of those were violated by ICANN.

Extracts from San Juan icann61 communique:

1. 1. the GAC advises the ICANN Board to instruct the ICANN Organization to:

Furthermore,

1. 1. 1. Ensure that the proposed interim model maintains current WHOIS requirements to the fullest extent possible;
      2. Provide a detailed rationale for the choices made in the interim model, explaining their necessity and proportionality in relation to the legitimate purposes identified;
      3. In particular, reconsider the proposal to hide the registrant email address as this may not be proportionate in view of the significant negative impact on law enforcement, cybersecurity and rights protection;
      4. Distinguish between legal and natural persons, allowing for public access to WHOIS data of legal entities, which are not in the remit of the GDPR;
      5. Ensure continued access to the WHOIS, including non-public data, for users with a legitimate purpose, until the time when the interim WHOIS model is fully operational, on a mandatory basis for all contracted parties;
      6. Ensure that limitations in terms of query volume envisaged under an accreditation program balance realistic investigatory cross- referencing needs; and
      7. Ensure confidentiality of WHOIS queries by law enforcement agencies.
         
         
   2. The GAC advises the ICANN Board to instruct the ICANN Organization to:
      1. Complete the interim model as swiftly as possible, taking into account the advice above. Once the model is finalized, the GAC will complement ICANN’s outreach to the Article 29 Working Party, inviting them to provide their views;
      2. Consider the use of Temporary Policies and/or Special Amendments to ICANN’s standard Registry and Registrar contracts to mandate implementation of an interim model and a temporary access mechanism; and
      3. Assist in informing other national governments not represented in the GAC of the opportunity for individual governments, if they wish to do so, to provide information to ICANN on governmental users to ensure continued access to WHOIS.

27 830-9 GNSO Policy Briefing

Elaborate overview touching upon URS, TMCH, EPDP. Very informative for newbies and old hands!

27 1330-1400 GAC Contracted Parties

A voice was raised about the unclear nature of the term reasonable access used in Temp Sec. Can the contracted parties decide that? A contra voice was also raised that under the current scenario a person with legitimate interest can always access WHOIS. The question which went begging was are the contracted parties willing to make that call?

27 1515-1645 CSG Open Meeting

Goran Marby held the fort. Firstly he emphasized that ICANN does not hold any WHOIS data, a statement challenged by a few participants; then went on to toss the Unified Access Model as a possible panacea to the darkened WHOIS. End of the day no risk free accessibility to WHOIS data was adopted nor any ICANN policy to ensure unrestricted or even regulated but risk free WHOIS access seems imminent; and until that evolves with the GDPR authorities (DPA) categorically approving some ICANN access model (which Marby says has so far not been done by DPAs) or the German courts decide whether WHOIS should remain open or to what extent or under which condition, IPC brand owners face the handicap of not having details of whom to prosecute.

27 9-1015 Tucow

A presentation by internet service providers offering risk free tiered access to WHOIS data but restricted to domains on their platform. Need to read their fine print (which was not made available at the session) before one can be sure it’s viable.

28 9-1015 BC Open Meeting:

The conflicts in GDPR advice received by various stakeholders including ICANN and GAC is an area who JJ admits awaits resolution. Temp spec was also raised but whether any access model would qualify as compliant under GDPR is a question no one seemed to have an answer to.

28 1330-15 WG SubPro gTLD:

Focus was ‘non capital city’ names. After traversing Preapp phase, Evaluation, GAC advice, Control, Universal protection, NOC and Intended use and how to differentiate geographic and non geographic use - control the former and let go the latter, no answers were provided where to draw the dividing line and no clarity emerged on who will be the arbiter of what is a ‘non capital city’ name  in the geographic sense while processing an application seeking it as as a TLD. Work seems to be cut out for WT5 which has has to turn in its final recommendations by 2019 Q2.

Goal #2 Outreach in targeted regional areas and Recruitment including formal/informal invitations:

Met the ICANN India Head and followed up with India GAC representatives attempting to align ICANN INTA and IPC thinking with GACs.

Goal #3 Outreach Strategic Plans and Regional Strategies:

In conversation with GACs from India as well as INTA subcommittees on ICANN issues aiming to harmonize any conflicting positions.

Goal #4 Knowledge Sharing including intentions to extend learnings within and among ICANN stakeholder communities:

Reaching out to various non ICANN individuals and decision making brand owners due to my extensive law practice and professional association memberships to educate them about the relevance and importance of supporting ICANN as the only sane alternate to chaos on the internet.