ICANN WHOIS

1. Notification of Whois Proceeding

   1.1 At the earliest appropriate juncture on receiving notification of an investigation, litigation, regulatory proceeding or other government or civil action that might affect its compliance with the provisions of the Registrar Accreditation Agreement ("RAA") or other contractual agreement with ICANN dealing with the collection, display or distribution of personally identifiable data via WHOIS ("WHOIS Proceeding"), a registrar/registry should provide ICANN staff with the following:

   • Summary description of the nature and status of the action (e.g., inquiry, investigation, litigation, threat of sanctions, etc.) and a range of possible outcomes.
   • Contact information for the responsible official of the registrar/registry for resolving the problem.
   • If appropriate, contact information for the responsible territorial government agency or other claimant and a statement from the registrar/registry authorizing ICANN to communicate with those officials or claimants on the matter. If the registrar/registry is prevented by applicable law from granting such authorization, the notification should document this.
   • The text of the applicable law or regulations upon which the local government or other claimant is basing its action or investigation, if such information has been indicated by the government or other claimant.
   • Description of efforts undertaken to meet the requirements of both local law and obligations to ICANN.

   1.2 Meeting the notification requirement permits registrars/registries to participate in investigations and respond to court orders, regulations, or enforcement authorities in a manner and course deemed best by their counsel.

   1.3 Depending on the specific circumstances of the WHOIS Proceeding, the registrar/registry may request that ICANN keep all correspondence between the parties confidential pending the outcome of the WHOIS Proceeding. ICANN will ordinarily respond favorably to such requests to the extent that they can be accommodated with other legal responsibilities and basic principles of transparency applicable to ICANN operations.

   1.4 A registrar or registry that is subject to a WHOIS proceeding should work cooperatively with the relevant national government to ensure that the registrar or registry operates in conformity with domestic laws and regulations, and international law and applicable international conventions.

2. Alternative Trigger: Written Statement from Government Agency

   1.5 In the absence of a Whois proceeding, a registry or registrar may present to ICANN a written statement from agency:

   • (1) Specifying the facts before it, i.e.,
     
     • (i) the specific contracted party in question (registrar or registry)
     • (ii) the applicable terms of service/registration agreements agency has reviewed
     • (iii) the applicable provisions of the ICANN contract in question
     • (iv) the applicable law it has analyzed
   • (2) Identifying and analyzing the inconsistency agency has found between national law and contractual obligations, citing specific provisions of each; and
   • (3) Certifying that agency has the legal authority to enforce the national law which it has found to be inconsistent with contractual obligations, and that it has jurisdiction over the contracted party for the purposes of such enforcement

3.1 If the WHOIS Proceeding requires changes (whether before, during or after the consultation process described above) that, in the opinion of the Office of ICANN's General Counsel, prevent compliance with contractual WHOIS obligations, ICANN staff may refrain, on a provisional basis, from taking enforcement action against the registrar/registry for non-compliance, while ICANN prepares a public report and recommendation and submits it to the ICANN Board for a decision. Prior to release of the report to the public, the registry/registrar may request that certain information (including, but not limited to, communications between the registry/registrar and ICANN, or other privileged/confidential information) be redacted from the report. The General Counsel may redact such advice or information from any published version of the report that relates to legal advice to ICANN or advice from ICANN's counsel that in the view of the General Counsel should be restricted due to privileges or possible liability to ICANN. Such a report may contain:

1. A summary of the law or regulation involved in the conflict;
2. Specification of the part of the registry or registrar's contractual WHOIS obligations with which full compliance if being prevented;
3. Summary of the consultation process if any under step two; and
4. Recommendation of how the issue should be resolved, which may include whether ICANN should provide an exception for those registrars/registries to which the specific conflict applies from one or more identified WHOIS contractual provisions. The report should include a detailed justification of its recommendation, including the anticipated impact on the operational stability, reliability, security, or global interoperability of the Internet's unique identifier systems if the recommendation were to be approved or denied.

3.2 The registrar/registry will be provided a reasonable opportunity to comment to the Board. The Registrar/Registry may request that ICANN keep such report confidential prior to any resolution of the Board. ICANN will ordinarily respond favorably to such requests to the extent that they can be accommodated with other legal responsibilities and basic principles of transparency applicable to ICANN operations.

3.3 In cases to which the Alternative Trigger applies, the Board will consider any public comment received on the written statement submitted in the Notification Step as well as any input received from the GAC representative (if any) from the country in question, pursuant to section 2.1.2 of the procedure.

5.1 The Board's resolution of the issue, together with the General Counsel's report, will ordinarily be made public and be archived on ICANN’s website (along with other related materials) for future research. Prior to release of such information to the public, the registry/registrar may request that certain information (including, but not limited to, communications between the registry/registrar and ICANN, or other privileged/confidential information) be redacted from the public notice. The General Counsel may redact such advice or information from any published version of the report that relates to legal advice to ICANN or advice from ICANN’s counsel that in the view of the General Counsel should be restricted due to privileges or possible liability to ICANN. In the event that any redactions make it difficult to convey to the public the nature of the actions being taken by the registry/registrar, ICANN will work to provide appropriate notice to the public describing the actions being taken and the justification for such actions, as may be practicable under the circumstances.

5.2 Unless the Board decides otherwise, if the result of its resolution of the issue is that data elements in the registry/registrar's WHOIS output will be removed or made less accessible, ICANN will issue an appropriate notice to the public of the resolution and of the reasons for ICANN's forbearance from enforcement of full compliance with the contractual provision in question.