WHOIS Task Forces 1 and 2 Teleconference 19 October, 2004 - Minutes ATTENDEES:
GNSO Constituency representatives:
Registrars constituency - Jordyn Buchanan - Co-Chair
Registrars constituency - Paul Stahura
gTLD Registries constituency - David Maher
Commercial and Business Users constituency - Marilyn Cade
Intellectual Property Interests Constituency - Steve Metalitz
Intellectual Property Interests Constituency - Niklas Lagergren,
Internet Service and Connectivity Providers constituency: - Antonio Harris
Non Commercial Users Constituency - Milton Mueller
Liaisons:
At-Large Advisory Committee (ALAC) liaisons - Thomas Roessler
ICANN Staff Manager: Barbara Roseman
GNSO Secretariat: Glen de Saint Géry
Absent:
gTLD Registries constituency: - Jeff Neuman - Co-Chair- apologies
Registrars constituency - Tom Keller - apologies
Commercial and Business Users constituency - David Fares - apologies
Non Commercial Users Constituency - Marc Schneiders - apologies
Internet Service and Connectivity Providers constituency - apologies - Maggie Mansourkia
Intellectual Property Interests Constituency - Jeremy Banks - apologies
Amadeu Abril l Abril
At-Large Advisory Committee (ALAC) liaisons - Wendy Seltzer
MP3 Recording
Agenda is to revisit
1. Conspicious notice and consent
2. Conflicts with national law
1. Conspicious notice and consent Should the task force recommendation include consent or just the manner in which the registrants are notified?
The views were split between focussing on notice and consent.
Marilyn Cade requested clarification on what improving consent embodied and what could be contributed, what actions should be taken to improve consent.
Milton Mueller was of the opinion that consent should be decoupled from notice, while Steve Metalitz commented that in the registrar agreement complying to notification and consent was part of the overall plan.
Jordyn Buchanan commented that there were two suggestions:
1. Milton Mueller: Registrars must obtain a separate acknowledgement from registrants that they have read and understood these disclosures.
2. David Maher: Registrars must obtain a separate acknowledgement from registrants that they have read and understood and consented these disclosures.
Conspicious notice was considered to be low hanging fruit.
Task Force 2 Preliminary report, recommendation 3 has a heading called "Notification and consent". Paragraphs a and b deal with advisories reminding registers of the importance of compliance with this consent. The first two sections dealt with consent but that was not deemed to be low hanging fruit but what was deemed a low hanging was:
c. Encourage development of best practises that will improve the effectivenes of giving notice to and obtaining consent from Domain name regsitrants woth regard to the uses of regsirant contact data. Such as requesting the GNSO council to commence a policy development process or other procedure with the goal of developing such best practices. Steve Metalitz commented that it was making sure that people were better informed as to what they are consenting to. David Maher believed that compeling consent is wrong, there should be options. Furthermore conspicuous was not a requirement so in moving forward should limit to conspicuous notice.
Marilyn Cade suggested that consent could be improved but also recommended that registrars advise registrants of anonomysing services so that they could decide for themselves.
Jordyn Buchanan proposed looking at David Maher's recommendation as a whole in an attempt to move forward.
Steve Metalitz was prepared to accept amendment by Milton Mueller with the sentence added: "this recommendation is without prejudice to existing policy" Recommendation:
1. Registrars must ensure that disclosures regarding availability and third-party access to personal data associated with domain names actually be presented to registrants during the registration process. Linking to an external web page is not sufficient.
2. Registrars must ensure that these disclosures are set aside from other provisions of the registration agreement if they are presented to registrants together with that agreement. Alternatively, registrars may present data access disclosures separate from the registration agreement.
3. Registrars must obtain a separate acknowledgement from registrants that they have read, understood and consented to these disclosures.
Propositions to move ahead with the work:
More languge would be useful before the recommendation gets to the implementation team
Find examples and senarios that could help the implementation team uderstand the task force approach.
Paul Stahura offered to assist with clarifying the recommendation's language
Identify some examples of conspicious notce and ask the ICANN legal counsel to provide input
2. Conflicts with national law
Reference was made to Tom Keller's posting: " I�m not absolutely clear about Steves statement.
As I see it the main problem for a Registrar/Registry might stem from a situation where a local authority issues an order to close down the whois service or at least parts of it without allowing for any prior consultation.
The problem is NOT that the local authority will not allow to communicate it to ICANN to begin consultation. To better reflect this situation I amended Steves wording a bit.
The following provision of the draft is intended to address the situation Marc envisions:
"Similarly, if the problem arises from a formal complaint or contact by a local/national law enforcement authority which cannot be communicated to ICANN under provisions of local/national law, the registrar will use appropriate available channels to seek relief from such a secrecy obligation, and will provide a notification conforming as closely as possible to what is outlined above as soon as it is able to do so."
I think this covers the case in which a registrar is unable to communicate with ICANN and seek to invoke the consultation process before the law enforcement authority acts "to close down operations of the registrar."
Clearly the preferred course would be for registrars to notify ICANN as early as possible of the asserted conflict.
If local law prevents this, then the paragraph quoted above would apply. But if local law does not forbid disclosure of the enforcement action, the procedure should give registrars an incentive not to wait until it is too late for the consultation process to work. "
It was proposed that Steve Metalitz and Tom Keller work on the "National law" topic and review alternatives.
Next call:
- Refine Tiered Acess
- Ideas on how to use the Cape Town meetings productively
- Identify criteria for experts
- Identify experts
Jordyn Buchanan thanked everyone for their presence and participation.
The call ended at 12:15 EST, 18:15 CET
Next Call: 26 October 2004
see: GNSO calendar
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