Re: [council] Response from Deputy General Counsel on "clear and conspicuous"

[Avri Doria <avri@xxxxxxx>]

Hi,

I don't understand this response.  Or rather I see that they approve  
the phrase but no indication that it does not in any way limit a  
registrant privacy rights.
Since I think it is important that privacy rights not be further  
eroded by any new WHOIS policies, I do agree that we should have a  
complete understanding of the consequences of the wording.
thanks
a.

On 11 aug 2005, at 21.35, Bruce Tonkin wrote:

> -----Original Message-----
> From: Daniel Halloran [mailto:daniel.halloran@xxxxxxxxx]
> Sent: Friday, 12 August 2005 4:02 AM
> To: Bruce Tonkin
> Cc: Whois TF mailing list
> Subject: Re: [gnso-dow123] Note to council on Notice recommendation
>
> Bruce,
>
> As we discussed, this will confirm that John Jeffrey and I have  
> reviewed
> and approved the use of the phrase "clear and conspicuous"
> in the "Updated consensus recommendation on improving notification to
> Registered Name Holders of the public access to contact data via the
> WHOIS service" <http://www.gnso.icann.org/mailing-lists/archives/
> council/msg01159.html>.
>
> We'll stand by to review any possible questions the task force might
> develop on the "waiver" issue discussed below.
>
> I hope this will be helpful.  Please let me know if I can be of any
> other assistance.
>
> Best regards,
> Daniel Halloran
> Deputy General Counsel
> ICANN
>
>
>
> On Aug 9, 2005, at 18:44 PM, Bruce Tonkin wrote:
>
>
> > 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