Re: [gnso-whois-wg] Draft final report Whois group v 1.5

[Ross Rader <ross@xxxxxxxxxx>]

I will post separately concerning divergence from the AGREE/SUPPORT, etc...

Comments on this draft:

a) Lines 143 - 145
Unless Margie represents multiple registrars, I do not believe that the 
WG has heard that multiple registrars support verification at the time 
of registration. I continue to maintain that this is not only a 
burdensome requirement, but will completely change the entire function 
of the domain name registration system by moving it from a real-time 
system to a non-realtime system as verifications cannot be conducted in 
a realtime manner. I cannot stress enough the expense and inconvenience 
that this will impose on registrants and registrars.

b) Line 156
I have made this point in the past and the WG has agreed to this view 
that the OPOC is not an agent of the registrant. If the OPOC is an agent 
of the registrant, then agency law can be used and we do not need to 
implement this complex and onerous verification system.

c) Line 165 - 167
See comment a) above.

d) Line 176 - 196
There is a flaw in the logic here. ICANN staff opinion is that the proxy 
is the registered name holder. Therefore, the RNH, in all cases in 
ICANN's view, is the contractee with the registrant and is required to 
abide by all relevant contracts and policy. This includes abiding by 
national law, etc. If this party chooses to designate an OPOC, these 
responsibilities do not go away. Furthermore, there is nothing prevent a 
registrant, reseller or some other third party to enter into a proxy 
relationship with a registrant and avoid the implications of the policy 
proposed in this section. Therefore requiring that the proxy and the 
OPOC be one and the same is an illogical requirement that cannot be 
practically implemented.

e) Line 202
Again, see comment a).

f) Line 205
My support for merging the contacts is not conditional upon these terms. 
This should be captured in the report along the lines of "Some support 
for merging is conditional, etc....whereas others unconditionally 
support this simplification as being generally beneficial to operators 
and registrants."

g) Line 208
No functional distinction has been demonstrated in this WG. At best 
there is a possibility of this, but given that no formal, legal or 
remotely official description of the responsibilities of the technical 
contact exists, it is not possible to state that there is a functional 
distinction between the responsibilities of the two without knowing more 
specifics. This line should be removed or made more clear.

h) Line 210
Data collect is squarely out of scope for this WG. Please strike the 
reference to data collection.

i) Line 218
Again, please remove all references to data collection, this is out of 
scope for this group.

j) Line 262 - 268
This definition is essentially unbounded and mostly outside the scope of 
ICANN's policy making activities. This can be remedied by removing all 
non-registration or DNS-related applications of a domain name. i.e 
"wrongful activity of a registrant" should be bounded. "phishing, 
pharming" are both non-registration/DNS related. These terms should also 
be qualified more clearly. Pharming, phishing and cybersquatting are all 
colloquial terms with no strong definition. Substitutions should be made 
for these words to make it clearer what the definition intends to deal 
with (i.e. I'm guessing that everything related to cybersquatting is 
already picked up by trademark and copyright infringements and could 
therefore simply be removed).

k) Line 337
See comment b)

l) Line 341  - 345
This pollicy proposal deals with issues outside of the scope of the GNSO 
and ICANN and should be wholly removed from this report.

m) Line 352
There are no requirements for a Requestor to demonstrate the failure of 
the OPOC to perform their responsibilities. If this is to be 
implementable, there must be a strong burden of proof on the requestor 
to demonstrate the nature of the failure.

n) Line 363
Again, out of scope, please strike.

o) Line 364
Again, out of scope, please strike.

p) Line 446
The parentheses are inaccurate and should probably just be removed. 
There are many means for accessing whois data, most notably port 43, 
that are not captured here. It would be more accurate to simply state 
"Whois access should continue in its present form, etc...."

q) Line 449
I am not sure where this proposal comes from, but I don't support this 
proposal unless there are cost recovery means in place to support its 
implementation. i.e. if this is a chargeable service, then I don't have 
an issue with creating and implementing it. If there is an expectation 
that this will be a free service, I can not agree to it in any way.

r) Line 460
See comment q)

s) Line 472
Bulk access is not provided via Port 43. I am not sure what this 
proposal is recommending. Also, see comment q) in the event that this is 
a new mechanism being proposed.

t) Line 491-493
These terms are also unbounded. These criteria should be limited to 
terms recognized under international law or other means that can be 
objectively applied. Furthermore, they should be brought back into 
territory where ICANN can actually make policy and be limited to DNS and 
registration of the domain name.

u) Line 524
Self-declaration is not sufficient means, especially when open to all 
private actors. In these cases, we must rely on either a) due process or 
b) arrangement with the registrar, unless ICANN is willing to assume the 
liability that comes with disclosing this data in such an ad hoc manner 
as described in this recommendation.

v) Line 100 (sorry to jump around, I missed this the first time)
Cost implications must be made addressable through market means. It is 
not simply sufficient to impose a cost on registrars or registrants 
simply because of some claimed benefit. If there is a benefit to the 
implementation, then there is value in it, and registrars must be free 
to recoup their investment, plus profit, through market based pricing of 
these services.

Philip Sheppard wrote:
> WHOIS working group members,
>
> I attach version 1.5 of our draft report.
> I hope we have more or less completed productive discussion on the key issues.
> If there are additional areas where you would still like to make input please 
> do so not by
> expressing opinion or hope (we've done that!)  but by proposing methods that 
> are practical,
> cost effective and capable of implementation.
>
> The final version of the report will have several additions made by staff to 
> bring it into
> line with standard format such as references back to the group charter, record 
> of
> discussions, etc. But to make our life in this large group as simple as 
> possible the current
> format should be easier to follow with respect to its policy recommendations.
>
> What we need to hear now are any divergences to the agreed, supported or 
> alternate views
> outlined in the draft.
> Please do this NOT by use of the tracking function in Word but by e-mail and 
> reference to
> the line number in the report.
> (Multiple author word tracking is almost impossible to edit and messes up the 
> line numbering
> function so making discussion on any new points troublesome.)
>
> Lets structure this in two parts.
> Part 1 :
> - Sections 1 - 4 
> Input now and the teleconference of 25 July
>
> Part 2:
> - Sections 5 to the end
> Input from 25 July and the teleconference of 1 August.
>
> Philip
> Chairman


--
Regards,

Ross Rader
Director, Retail Services
Tucows Inc.

http://www.domaindirect.com
t. 416.538.5492