Effective Date 18 April 2017
View the Redline Version of the Revised Whois Procedure. [PDF, 75 KB]
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:
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.
1.5 In the absence of a Whois proceeding, a registry or registrar may present to ICANN a written statement from agency:
2.1 The goal of the consultation process should be to seek to resolve the problem in a manner that preserves the ability of the registrar/registry to comply with its contractual WHOIS obligations to the greatest extent possible.
2.1.1 Unless impractical under the circumstances, upon receipt and review of the notification, ICANN will consult with the registrar/registry. Where appropriate under the circumstances, ICANN will consult with the local/national enforcement authorities or other claimant together with the registrar/registry.
2.1.2 Pursuant to advice from ICANN's Governmental Advisory Committee, ICANN will request advice from the relevant national government on the authority of the request for derogation from the ICANN WHOIS requirements.
2.2 If the WHOIS Proceeding ends without requiring any changes or the required changes in registrar/registry practice do not, in the opinion of ICANN, constitute a deviation from the RAA or other contractual obligation, then ICANN and the registrar/registry need to take no further action.
2.3 If the registrar/registry is required by local law enforcement authorities or a court to make changes in its practices affecting compliance with WHOIS-related contractual obligations before any consultation process can occur, the registrar/registry should promptly notify ICANN of the changes made and the law/regulation upon which the action was based.
2.4 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.
2.5 In cases to which the Alternative Trigger applies, the Consultation Step includes a public consultation in which all interested parties can review the written statement submitted in the Notification Step and to comment on all aspects of it. In such cases, ICANN would also consult with the GAC representative (if any) from the country in question, pursuant to section 2.1.2 of the procedure.
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:
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.
4.1 Keeping in the mind the anticipated impact on the operational stability, reliability, security, or global interoperability of the Internet's unique identifier systems, the Board will consider and take appropriate action on the recommendations contained in the General Counsel's report as soon as practicable. Actions could include, but are not limited to:
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.
6.1 With substantial input from the relevant registries or registrars, together with all constituencies, ICANN will review the effectiveness of the process annually.
1 https://community.icann.org/display/WNLCI/WHOIS+and+national+law+conflicts+IAG+Home