[gnso-reg-sgc] Working Proposal for Sub-Group C
Dear Jon and sub-group C members, I am attaching a working proposal (in Word) for consideration of sub-group C. It is based on the matrix of WHOIS Options that has been circulated. There's no pride of authorship to this document. Hopefully, some of the ideas or language will prove helpful, and it also makes clearer the implications of sub-group C's work. Chris Gibson _____ From: owner-gnso-reg-sgc@xxxxxxxxx [mailto:owner-gnso-reg-sgc@xxxxxxxxx] On Behalf Of Maria Farrell Sent: Monday, May 14, 2007 6:06 PM To: gnso-reg-sgc@xxxxxxxxx Subject: [gnso-reg-sgc] Summary of last week's call + initial remarks on this sub group's oucomes Dear Sub Group C members, Instead of the usual call summary by staff, Jon Bing has pulled together some initial remarks on this group's outcomes. I include it below for your information and discussion. Can you please review this and give some thought to how we can develop this into a summary of this group's conclusions on this week's call? As a reminder, in the Working Group proper, we will use the conventions set out in the Charter to capture consensus and positions with varying levels of agreement: " - Agreement - there is broad agreement within the Working Group (largely equivalent to "rough consensus" as used in the IETF) - Support - there is some gathering of positive opinion, but competing positions may exist and broad agreement has not been reached - Alternative view - a differing opinion that has been expressed, without garnering enough following within the WG to merit the notion of either Support or Agreement." For now, let's focus on seeing what we tentative options and conclusions have emerged in this sub group. All the best, Maria Sub Group C 10 May 2007 Participants: Glen De SaintGery Lynn Goodendorf John Bing Philip Sheppard Avri Doria Kristina Rosette Bertrand De La Chapelle Mawaki Chango Paul Stahura Lane Mortensen Neil Schwartzman Maria Farrell Jay Westerdal Chris Gibson A false declaration, should be grounds for challenge, directed in the first instance to the OPOC Matrix of Whois options and outcomes: legal/natural and commercial/non-commercial The original matrix as supplied by Maria Farrell looked as below: Commercial Non-commercial Legal Legal person + commercial objective e.g. a legal partnership (law firm) or limited liability company Whois output: OPEN Criteria for establishing this status: - company or legal registration? - Self-declaration? Legal person + non-commercial objective e.g. a not for profit organisation such as ICANN, or Medecins san Frontieres, or - in some jurisdictions - a sports club, trade association or faith-based organisation. Whois output: ? Criteria for establishing this status: - Legal registration? - Self-declaration? - Membership of recognised non-profit list, e.g. WIPO interlocutor? Natural Natural person + commercial objective e.g. a sole trader such as an eBay merchant or small business owner, or a chartered accountant or solicitor in solo practice Whois output: OPEN Criteria for establishing this status: - Self-declaration? Natural person + non-commercial objective e.g. a blogger, operator of email list(s), family website, hobby site/email use Whois output: CLOSED Criteria for establishing this status: - Legal registration? - Self-declaration? There is broad agreement that the matrix was a useful tool for thinking about the options, and that the term 'activity' might be preferred to the term 'objective', which is used in the matrix. Commercial - non commercial There seems to be broad consensus of two aspects. Support for idea that distinction natural between a legal and physical person can be practically made, but distinctions between commercial and non-commercial activities are complex and differ within and between jurisdictions - and also that the distinction is gradual: an activity may slip from being non-commercial to becoming commercial along a slope. If one may expect several borderline registrants, the distinction may not be operative and perhaps generate more problems that it solves. The tentative conclusion is suggested that one abandons the distinction between commercial and non-commercial activities, basing the rules for the registration only on the distinction between legal and natural persons. However, there prevails the aalternative view that work should still be done on distinguishing between commercial and non-commercial activities. If this is to be explored, one should also explore how to make it operational. Legal persons - individuals (natural persons) There seems to be support for the distinction between natural and legal persons, a distinction which is based on the corresponding distinction common to data protection regulation, both national and international. An assumption is made that legal persons or their OPoC would have full contact data published in Whois, while natural persons would have a smaller set of data published, both sets of data not specified beyond this assumption. Legal persons Natural persons Full contact data published Smaller set of contact data published 1. How to define which registrants belong to which category? The major distinction would seem to be whether one would require or not some sort of authentication procedure. A minimum would be a requirement for the registrar to ensure that the data was not fabricated; a next step would be to ensure that the data was correct; a further step would be to ensure that there is no misrepresentation, for instance a natural person fronting for a legal person. Any authentication procedure will incur costs, and must therefore be justified in the advantages it brings. The advantages sought for are reduction in misrepresentations and a corresponding increase in the quality of Whois data. The tentative conclusion is that the suggested procedures for authentication do not seem to ensure the reduction of misrepresentation unless rather major resources are required by the registrar. The conclusion is then to base registration only on self-declaration or existing routines already implemented by the registrars. 2. Authentication procedure. If basing the distinction on self-declaration, there will be no need for authentication procedures. This has the positive effect of costs not being required, the negative effect that it does not contribute to ensure that data are correct. In a way, the problem is pushed further into a next stage. There are concerns that self-declaration creates an incentive for bad faith actors to wrongly claim they are natural persons in order to avoid greater immediate disclosure of Whois data. There is also a concern that someone making a bad faith declaration may also have supplied false OPoC information. 3. Bad faith declarations. If declaration is made in bad faith, a challenge mechanism could be used (work on this is under item 4a of the charter, so currently the task of sub group A). A false declaration, should be grounds for challenge, directed in the first instance to the OPoC One suggestion was that a bad faith registration should trigger access to the full set of information, notwithstanding that this issue would be for sub group B. The tentative conclusion is that there is a need to coordinate with sub group A on enforcement issues (e.g. is it an issue if a registrant says they are a legal entity when they are not?) in the case of bad-faith declarations, Attachment:
Working Proposal Sub-Group C.doc
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