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RE: [council] Proposed amendment to BCUC motion

  • To: <ross@xxxxxxxxxx>
  • Subject: RE: [council] Proposed amendment to BCUC motion
  • From: "Mike Rodenbaugh" <mxr@xxxxxxxxxxxxx>
  • Date: Thu, 30 Aug 2007 10:33:52 -0700
  • Cc: "Council GNSO" <council@xxxxxxxxxxxxxx>
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  • Thread-topic: [council] Proposed amendment to BCUC motion

What else do the Registrars not like in their contracts?  Maybe you
could propose a PDP to examine them for awhile, obstruct and obfuscate
the process so that there is no consensus as to continued viability of
those provisions, and so argue that they too should be removed.  If you
are successful with this on WHOIS, what will be next?

Of course, your proposal is also of financial benefit to Registries, and
satisfies the NCUC completely.  So it is surprising they have never to
date advocated it, but will not be surprising if they agree with it now.
I cannot imagine the other three Constituencies supporting it.  So we
will have a deeply divided Council on this issue, obviously.  

So the answer then ought to be to work and discuss further to try to
reach consensus.  The WG found consensus on several fundamental points,
even as to a general OPoC policy that was not supported by 3
Constituencies.  The WG also several factual points of contention that,
if resolved, could lead to consensus policy.  We should not throw away
all the work that has gone into this, and decide on a radical solution
that has never previously been proposed or discussed.

The existing contractual provisions are certainly not 'unsupported' and
obviously were the product of consensus among not only the contracting
parties but also the rest of the community.  Everyone or at least
'almost everyone' should agree on any change to that status quo,
including of course any proposal to eliminate it.

Mike Rodenbaugh


-----Original Message-----
From: Ross Rader [mailto:ross@xxxxxxxxxx] 
Sent: Thursday, August 30, 2007 10:11 AM
To: Mike Rodenbaugh
Cc: Council GNSO
Subject: Re: [council] Proposed amendment to BCUC motion

Mike Rodenbaugh wrote:
 > Ross, you cannot honestly call this a 'proposed amendment' to our
 > motion.  It has nothing to do with our motion.

Shall I assume then that you don't view this as a friendly amendment?

> You are proposing that ICANN remove all existing contractual
provisions
> regarding WHOIS, on the basis that a consensus WHOIS policy has not
been
> achieved to date.  That is the first time I have ever heard someone
> suggest that lack of consensus as to policy to change the status quo,
> would lead to elimination of the status quo -- and thus in this
matter,
> elimination of an open and accessible WHOIS database.  I am quite
> surprised to read such a proposal for the first time today, and
> surprised that you did not even mention it for discussion on our GNSO
> call today, nor in the past 7 years of debate as far as I know.  

In reviewing this proposal today, I said that the matter before council 
is to test consensus on the issue of Whois policy. I was very clear 
about this when I reviewed this motion on the call today. If council 
conducts this test and cannot find consensus, how does it stand that the

status quo should be the default position? This might benefit your 
constituency, so I find your reaction understandable, but I don't 
understand your reasoning that a lack of consensus concerning whois 
policy means that the unsupported, non-consensus based contractual 
conditions should continue to prevail.

And for what its worth, I am not the first to advance this reasoning, 
although I do believe that it is a proper way to proceed in the event 
that there is no consensus regarding how Whois should be managed and 
maintained.

> 
> I recall you stating at our GNSO Council meeting that kicked off this
> WG, that you would see lack of consensus as meaning we carry on with
the
> status quo.  Apparently your statements were disingenuous or your
> thinking has changed dramatically since.  

My thinking has changed, yes. My apologies for taking a less than 
dogmatic approach.

> It now seems clear that your
> long and hard battling on this issue has been designed to eliminate
ANY
> cost or obligation among registrars re WHOIS, rather than to mitigate
> any 'increased' cost above the status quo, as you have so frequently
> argued.    

Actually both characterizations are incorrect. My policy object has 
always been to improve the privacy of individuals as it relates to Whois

such that my organization can reasonably defend its business practice to

its customers in a meaningful way consistent with Canadian law. There 
was also a time when I thought that supposed industry leaders might take

a similarly enlightened view. Too bad that protecting your trademarks in

14 languages has to take precedent over making the internet a slightly 
better place, although I understand why a large publicly traded company 
might get its priorities mixed up once in a while.

> 
> These contractual provisions have existed for a very long time, for
very
> good reasons, and should not be considered for potential elimination
> without a PDP designed to analyze that potential outcome.  As far as I
> know, it simply has never been proposed or discussed that we would
> eliminate WHOIS altogether, so it would be ridiculous for Council to
> consider that as an option now.

PDP stands for Policy Development Process. If you'd like to propose that

Council undertake a study to understand the implications of enacting, or

redacting a policy, your proposal might make some sense. In the 
meantime, I've made a proposal that council support the elimination of 
contractual terms for registrars on the basis that there is no consensus

policy to support these terms, nor any basis for consensus to be 
achieved in this area. It also leaves the door open such that if 
consensus policy on Whois services is developed in the future, than 
these consensus policies would be implemented just like any other 
consensus policy (i.e. Transfers, Data Reminder Policy, etc.)

-- 
Regards,

Ross Rader
Director, Retail Services
Tucows Inc.

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




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