RE: [gnso-dow123] Note to council on Notice recommendation

["Bruce Tonkin" <Bruce.Tonkin@xxxxxxxxxxxxxxxxxx>]

Hello Jordyn,

I did receive a call from Dan Halloran of the ICANN General Counsel's
office with respect to the WHOIS recommendation.  I expect a response
from him shortly on the "clear and conspicuous" notice terminology.

Is it possible for the task force to frame a specific question on the
concern about the impact of the proposed recommendation on privacy
rights?  I can then send this to the General Counsel's office for
advice.

Perhaps a member of the task force can set out the reasons for the
concern on the WHOIS mailing list.

The intent of the current recommendation is to better inform registrants
of a current obligation.  

As I understand the current obligation, registrars are required to
publish some information via the WHOIS service  (clause 3.3 of the RAA),
registrars are required to provide notice to registrants of the purposes
for which the data is intended and the internet recipients of that data
(clause 3.7.7.4 of the RAA), and registrars are required to get
registrants to agree to this (clause 3.7.7.5 of the RAA).   If the
recommendation waives any existing rights of the registrant then this
needs to be considered carefully.

With reference to:
http://www.icann.org/registrars/ra-agreement-17may01.htm#3 


Note that with respect to clause 3.7.7.4  - "shall provide notice", Dan
did inform me that having this information in a privacy policy, or sent
via email, or displayed at the time of registration, would meet that
requirement.  It is not currently necessary to include the "notice"
within the terms and conditions.  Registrars have significant
flexibility on how they choose to meet this obligation in the RAA.   It
seems prudent not to actually interfere with this flexibility with
respect to clause 3.7.7.4.  Thus the new WHOIS recommendation should be
read in the context of a separate clause within 3.7.7.

Regards,
Bruce Tonkin
Chair, GNSO

> 
> On 09/08/2005 6:29 PM Jordyn A. Buchanan noted that;
> > As we discussed on today's call, a concern has been raised that the 
> > recommendation on Notice to registrants, currently before the  
> > Council, may be viewed as some kind of waiver of 
> registrant's privacy  rights.
> > This was not the intent of the recommendation, and not  
> something that
> > we had originally considered within the task force.   As a 
> result, we
> > agreed on today's call that I would send a note to  Bruce and the 
> > Council requesting further consideration of this issue.
> > 
> > Here's the request I propose to send.  Please let me know 
> (quickly)  
> > if anyone believes this doesn't correctly reflect our 
> agreement from  
> > the call today:
> > 
> > Dear Bruce:
> > 
> > In discussions of the Whois TF this week, a concern was 
> raised that  
> > the current proposal relating to improving notice to registrants  
> > regarding the use of their contact details in the Whois 
> system may be  
> > viewed as a waiver of registrants privacy rights.  It was not the  
> > intent of the task force that the recommendation act as any 
> sort of  
> > waiver, but this was not an issue that we considered during 
> the work  of the task force.
> > We do believe that this is an important issue,  however, 
> and believe 
> > that it would be premature for the Council to  adopt the policy 
> > recommendations without considering it.  As a  result, I am 
> writing to 
> > request that the Council either:
> > 
> > a) Refer the recommendation back to the Task Force for further 
> > consideration of this specific issue; alternatively, the 
> Council may 
> > want to consider this specific issue itself, or
> > 
> > b) Delay adoption of this recommendation until such time as 
> the full 
> > range of issues currently being considered by the task force have 
> > resulted in a broader set of recommendations that may render this  
> > issue moot.
> > 
> > Thanks,
> > 
> > Jordyn A. Buchanan
> > Chair, Whois TF