RE: [council] Proposed amendment to BCUC motion

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

Thanks Mike.  That helps me understand what you meant.  Working for a thin 
registry, I don't see any financial advantages for us.

Chuck


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 -----Original Message-----
From:   Mike Rodenbaugh [mailto:mxr@xxxxxxxxxxxxx]
Sent:   Thursday, August 30, 2007 09:05 PM Eastern Standard Time
To:     Gomes, Chuck; ross@xxxxxxxxxx
Cc:     Council GNSO
Subject:        RE: [council] Proposed amendment to BCUC motion

I understand that in the absence of any contractual provisions re an
open and accessible WHOIS database, registries and registrars would
completely control that data with no restrictions other than national
law.  Control of WHOIS data equals financial benefit. 

Maybe I am misunderstanding something, please enlighten me if so.  

Ross please should be precise ASAP about the contract provisions he
proposes Council to suggest be eliminated.  And please advise when and
where this outcome was ever discussed in an ICANN public forum.  

Otherwise I think it is inappropriate for us to consider this motion,
since the presented solution -- to a very important and long debated
issue -- has not been debated substantially by the wider community,
including several Working Groups designed to discuss the issues.  To
consider such a solution at Council would discredit the premise that
ICANN is a bottom-up organization focused on consensus-based
policymaking.  

We should focus on the incremental consensus that has been reached, and
next steps to an implementable Consensus Policy. 

Mike Rodenbaugh

-----Original Message-----
From: Gomes, Chuck [mailto:cgomes@xxxxxxxxxxxx] 
Sent: Thursday, August 30, 2007 5:20 PM
To: Mike Rodenbaugh; ross@xxxxxxxxxx
Cc: Council GNSO
Subject: RE: [council] Proposed amendment to BCUC motion

Mike,

To what are you referring when you say, "your proposal is also of
financial benefit to Registries"?

Chuck Gomes
 
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> -----Original Message-----
> From: owner-council@xxxxxxxxxxxxxx
> [mailto:owner-council@xxxxxxxxxxxxxx] On Behalf Of Mike Rodenbaugh
> Sent: Thursday, August 30, 2007 1:34 PM
> To: ross@xxxxxxxxxx
> Cc: Council GNSO
> Subject: RE: [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
> 
>