[dow1-2tf] Intellectual Property Constituency (IPC) Statement on Whois Task Force 1/2 Recommendation 1

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The Intellectual Property Constituency (IPC) Statement on Whois Task
Force 1/2 
Recommendation: Improving Notification and Consent for the Use of
Contact Data in the Whois System

This statement responds to the request for constituency input on the
Whois Task Force 1/2 recommendations regarding improving notice and
consent for the use of contact data in the Whois database. See Call for
constituency statements on Whois tf 1/2 recommendations, available at
http://gnso.icann.org/mailing-lists/archives/dow1-2tf/msg00191.html.
Pursuant to requirements of the GSNO policy development process,
outlined by the ICANN bylaws, see Annex A, Sec. 7(d), available at
http://www.icann.org/general/archive-bylaws/bylaws-19apr04.htm, the IPC
came to the following conclusion. 

I. Constituency Position

This set of recommendations, see
http://gnso.icann.org/issues/whois-privacy/whois-notification-30nov04.pd
f, is the first of two that have been put forward by the joint task
force. The second set of recommendations, available at
http://gnso.icann.org/issues/whois-privacy/whois-tf-conflict-30nov04.pdf
, has not yet been formally offered to the GNSO constituencies for
comment. The notification and consent recommendations are based on a
similar recommendation from the previous Task Force 2, tasked with
reviewing issues surrounding the data collected and displayed in the
Whois database. At the outset of the work of that earlier Task Force
(April 2004), IPC submitted a constituency statement on the purposes of
the task force, which stated in relevant part:

Based on the limited data which has been collected so far, IPC believes
that the effectiveness of notification to domain name registrants, and
the obtaining of their consent as required by the RAA Secs. 3.7.7.4,
3.7.7.5, generally need improvement. 

For example, obtaining specific consent on this issue from the
registrant during the registration process, separate from obtaining
agreement to extensive terms and conditions for the registration in
general, should be encouraged. Similarly, some registrars should be more
specific and forthright in communicating to registrants about the
circumstances under which Whois data is available to third parties. 

ICANN should: 

" incorporate compliance with the notification and consent requirement
as part of its overall plan to improve registrar compliance with the
RAA. (See Memorandum of Understanding Amendment II.C.14.d, available at
http://www.icann.org/general/amend6-jpamou-17sep03.htm). 

" issue an advisory reminding registrars of the importance of compliance
with this contractual requirement, even registrars operating primarily
in countries in which local law apparently does not require registrant
consent to be obtained.

IPC believes that registrars should take the lead in developing best
practices, with input from other interested constituencies, that will
improve the effectiveness of giving notice to, and obtaining consent
from, domain name registrants with regard to uses of registrant contact
data. IPC would be glad to participate in such an effort. 

IPC Constituency Statement on Whois Task Force 2 (April 13, 2004)
available at
http://www.gnso.icann.org./mailing-lists/archives/dow2tf/msg00191.html.

In IPC's view, the current set of recommendations is responsive to the
concerns voiced in our earlier constituency statement. Their
implementation should help to address the problems identified and to
increase the likelihood that registrants are providing fully informed
consent. 

IPC continues to believe that its two suggestions bulleted in the April
2004 statement should be implemented, but we recognize that these
suggestions may fall outside the scope of the current Policy Development
Process. In any case, we do not perceive any inconsistency between these
suggestions and the recommendation currently under consideration. We
also renew our offer to work with interested registrars to help develop
best practices in this area.

We find the recommendations ambiguous in some respects and suggest a few
drafting changes to clarify these points. 

Recommendation 1 states that "[l]inking to an external web page is not
sufficient" to provide the required disclosure. It is unclear to us what
an "external" (or "internal" for that matter) web page is. Perhaps this
sentence could be amended to read: "Linking to a web page is not
sufficient."

Recommendation 2 states that disclosures must be "set aside" from other
provisions of the registration agreement if the disclosure is presented
as part of the agreement. It is unclear what "set aside" means.
Futhermore, Recommendation 2 allows as an alternative that disclosures
may be presented "separate from the registration agreement." This might
be viewed as inconsistent with the requirement in Recommendation 1 that
the disclosure be provided "during the registration process." As such,
Recommendation 2 could be amended as follows: "Such disclosures must be
displayed prominently and conspicuously prior to the agreement being
executed by the registrant, regardless of whether they appear as a term
of the agreement or separate from the agreement."

IPC also suggests that the recommendations include notice to registrants
of the consequences of providing false or inaccurate Whois data during
the registration process. The text of such a notice could be similar to
what registrars provide registrants pursuant to the Whois Data Reminder
Policy. See http://www.icann.org/registrars/wdrp.htm. 

We also identify two very minor typographical errors that should be
corrected. In the title, the word "of" should appear between "Use" and
"Contact." In the first line of Recommendation 3, the second
"registrars" should be changed to "registrants." 

In general, IPC supports the recommendation put forward by the Task
Force, and commends it for its hard work and its success at coming to
consensus. We hope that similar consensus can be reached as the Task
Force examines other policy issues surrounding the Whois database. IPC
believes this recommendation will have a positive effect for Internet
stakeholders as a whole, not just registrants. The more clearly the
Whois policy is disclosed to registrants, the more effective their
stated consent to this policy will be. In addition to giving registrants
the information they need to make informed choices, implementation of
this policy may very well result in general improvements to the Whois
database as a whole. 

II. Methodology for Reaching Agreement on IPC Position 

IPC drafted and circulated via email a constituency statement,
soliciting input from its members. IPC members suggested edits and
additions to the draft which were subsequently incorporated into the
finalized constituency statement.

III. Impact on Constituency

This recommendation will have a positive impact on IPC by potentially
enhancing the utility of the Whois database, a vital tool for protecting
intellectual property rights in the online environment. IPC does not
anticipate any direct financial impact on the constituency as a result
of this policy. We think any costs associated with this policy will be
minimal; if there are any, those costs will most likely be initially
borne by registrars, and ultimately passed onto registrants, including
IPC members, many of whom hold registrations for literally thousands of
domain names.

IV. Time Period Necessary to Complete Implementation

We would not anticipate that an extensive time period would be necessary
to implement this policy, as it would apply only to new registrations or
renewals and would not require new contracts with existing registrants. 


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<h4 align="center"><font face="Arial, Helvetica, sans-serif"><b><br>
  <br>
  Intellectual Property Constituency (IPC) Statement on Whois Task Force 1/2 
<br>
  Recommendation: Improving Notification and Consent for the Use of Contact 
Data 
  in the Whois System</b></font></h4>
<p><font face="Arial, Helvetica, sans-serif"> This statement responds to the 
request 
  for constituency input on the Whois Task Force 1/2 recommendations regarding 
  improving notice and consent for the use of contact data in the Whois 
database. 
  See Call for constituency statements on <a 
href="http://gnso.icann.org/mailing-lists/archives/dow1-2tf/msg00191.html";>Whois
 
  tf 1/2 recommendations</a>, available at 
http://gnso.icann.org/mailing-lists/archives/dow1-2tf/msg00191.html. 
  Pursuant to requirements of the<a 
href="http://icann.org/general/archive-bylaws/bylaws-19apr04.htm";> 
  GSNO policy development process,</a> outlined by the ICANN bylaws, see Annex 
  A, Sec. 7(d), available at 
http://www.icann.org/general/archive-bylaws/bylaws-19apr04.htm, 
  the IPC came to the following conclusion. </font></p>
<p><font face="Arial, Helvetica, sans-serif">I. Constituency Position<br>
  <br>
  This<a 
href="http://www.gnso.icann.org/issues/whois-privacy/whois-notification-30nov04.pdf";>
 
  set of recommendations</a>, see 
http://gnso.icann.org/issues/whois-privacy/whois-notification-30nov04.pdf, 
  is the first of two that have been put forward by the joint task force. The 
  <a 
href="http://www.gnso.icann.org/issues/whois-privacy/whois-tf-conflict-30nov04.pdf";>second
 
  set of recommendations</a>, available at 
http://gnso.icann.org/issues/whois-privacy/whois-tf-conflict-30nov04.pdf, 
  has not yet been formally offered to the GNSO constituencies for comment. The 
  notification and consent recommendations are based on a similar 
recommendation 
  from the previous Task Force 2, tasked with reviewing issues surrounding the 
  data collected and displayed in the Whois database. At the outset of the work 
  of that earlier Task Force (April 2004), IPC submitted a constituency 
statement 
  on the purposes of the task force, which stated in relevant part:</font></p>
<p><font face="Arial, Helvetica, sans-serif"> Based on the limited data which 
  has been collected so far, IPC believes that the effectiveness of 
notification 
  to domain name registrants, and the obtaining of their consent as required by 
  the RAA Secs. 3.7.7.4, 3.7.7.5, generally need improvement. </font></p>
<p><font face="Arial, Helvetica, sans-serif"> For example, obtaining specific 
  consent on this issue from the registrant during the registration process, 
separate 
  from obtaining agreement to extensive terms and conditions for the 
registration 
  in general, should be encouraged. Similarly, some registrars should be more 
  specific and forthright in communicating to registrants about the 
circumstances 
  under which Whois data is available to third parties. </font></p>
<p><font face="Arial, Helvetica, sans-serif"> ICANN should: </font></p>
<p><font face="Arial, Helvetica, sans-serif">&quot; incorporate compliance with 
  the notification and consent requirement as part of its overall plan to 
improve 
  registrar compliance with the RAA. (See <a 
href="http://www.icann.org/general/amend6-jpamou-17sep03.htm";>Memorandum 
  of Understanding Amendment II.C.14.d,</a> available at 
http://www.icann.org/general/amend6-jpamou-17sep03.htm). 
  </font></p>
<p><font face="Arial, Helvetica, sans-serif">&quot; issue an advisory reminding 
  registrars of the importance of compliance with this contractual requirement, 
  even registrars operating primarily in countries in which local law 
apparently 
  does not require registrant consent to be obtained.</font></p>
<p><font face="Arial, Helvetica, sans-serif"> IPC believes that registrars 
should 
  take the lead in developing best practices, with input from other interested 
  constituencies, that will improve the effectiveness of giving notice to, and 
  obtaining consent from, domain name registrants with regard to uses of 
registrant 
  contact data. IPC would be glad to participate in such an effort. </font></p>
<p><font face="Arial, Helvetica, sans-serif"><a 
href="http://www.gnso.icann.org/mailing-lists/archives/dow2tf/msg00191.html";>IPC
 
  Constituency Statement on Whois Task Force 2</a> (April 13, 2004) available 
  at 
http://www.gnso.icann.org./mailing-lists/archives/dow2tf/msg00191.html.</font></p>
<p><font face="Arial, Helvetica, sans-serif"> In IPC's view, the current set of 
  recommendations is responsive to the concerns voiced in our earlier 
constituency 
  statement. Their implementation should help to address the problems 
identified 
  and to increase the likelihood that registrants are providing fully informed 
  consent. </font></p>
<p><font face="Arial, Helvetica, sans-serif">IPC continues to believe that its 
  two suggestions bulleted in the April 2004 statement should be implemented, 
  but we recognize that these suggestions may fall outside the scope of the 
current 
  Policy Development Process. In any case, we do not perceive any inconsistency 
  between these suggestions and the recommendation currently under 
consideration. 
  We also renew our offer to work with interested registrars to help develop 
best 
  practices in this area.</font></p>
<p><font face="Arial, Helvetica, sans-serif"> We find the recommendations 
ambiguous 
  in some respects and suggest a few drafting changes to clarify these points. 
  </font></p>
<p><font face="Arial, Helvetica, sans-serif"> Recommendation 1 states that 
&quot;[l]inking 
  to an external web page is not sufficient&quot; to provide the required 
disclosure. 
  It is unclear to us what an &quot;external&quot; (or &quot;internal&quot; for 
  that matter) web page is. Perhaps this sentence could be amended to read: 
&quot;Linking 
  to a web page is not sufficient.&quot;</font></p>
<p><font face="Arial, Helvetica, sans-serif"> Recommendation 2 states that 
disclosures 
  must be &quot;set aside&quot; from other provisions of the registration 
agreement 
  if the disclosure is presented as part of the agreement. It is unclear what 
  &quot;set aside&quot; means. Futhermore, Recommendation 2 allows as an 
alternative 
  that disclosures may be presented &quot;separate from the registration 
agreement.&quot; 
  This might be viewed as inconsistent with the requirement in Recommendation 
  1 that the disclosure be provided &quot;during the registration 
process.&quot; 
  As such, Recommendation 2 could be amended as follows: &quot;Such disclosures 
  must be displayed prominently and conspicuously prior to the agreement being 
  executed by the registrant, regardless of whether they appear as a term of 
the 
  agreement or separate from the agreement.&quot;</font></p>
<p><font face="Arial, Helvetica, sans-serif"> IPC also suggests that the 
recommendations 
  include notice to registrants of the consequences of providing false or 
inaccurate 
  Whois data during the registration process. The text of such a notice could 
  be similar to what registrars provide registrants pursuant to the <a 
href="http://www.icann.org/registrars/wdrp.htm";>Whois 
  Data Reminder Policy. </a>See http://www.icann.org/registrars/wdrp.htm. 
</font></p>
<p><font face="Arial, Helvetica, sans-serif"> We also identify two very minor 
  typographical errors that should be corrected. In the title, the word 
&quot;of&quot; 
  should appear between &quot;Use&quot; and &quot;Contact.&quot; In the first 
  line of Recommendation 3, the second &quot;registrars&quot; should be changed 
  to &quot;registrants.&quot; </font></p>
<p><font face="Arial, Helvetica, sans-serif"> In general, IPC supports the 
recommendation 
  put forward by the Task Force, and commends it for its hard work and its 
success 
  at coming to consensus. We hope that similar consensus can be reached as the 
  Task Force examines other policy issues surrounding the Whois database. IPC 
  believes this recommendation will have a positive effect for Internet 
stakeholders 
  as a whole, not just registrants. The more clearly the Whois policy is 
disclosed 
  to registrants, the more effective their stated consent to this policy will 
  be. In addition to giving registrants the information they need to make 
informed 
  choices, implementation of this policy may very well result in general 
improvements 
  to the Whois database as a whole. </font></p>
<p><font face="Arial, Helvetica, sans-serif">II. Methodology for Reaching 
Agreement 
  on IPC Position </font></p>
<p><font face="Arial, Helvetica, sans-serif"> IPC drafted and circulated via 
email 
  a constituency statement, soliciting input from its members. IPC members 
suggested 
  edits and additions to the draft which were subsequently incorporated into 
the 
  finalized constituency statement.</font></p>
<p><font face="Arial, Helvetica, sans-serif">III. Impact on 
Constituency</font></p>
<p><font face="Arial, Helvetica, sans-serif"> This recommendation will have a 
  positive impact on IPC by potentially enhancing the utility of the Whois 
database, 
  a vital tool for protecting intellectual property rights in the online 
environment. 
  IPC does not anticipate any direct financial impact on the constituency as a 
  result of this policy. We think any costs associated with this policy will be 
  minimal; if there are any, those costs will most likely be initially borne by 
  registrars, and ultimately passed onto registrants, including IPC members, 
many 
  of whom hold registrations for literally thousands of domain names.</font></p>
<p><font face="Arial, Helvetica, sans-serif">IV. Time Period Necessary to 
Complete 
  Implementation</font></p>
<p><font face="Arial, Helvetica, sans-serif"> We would not anticipate that an 
  extensive time period would be necessary to implement this policy, as it 
would 
  apply only to new registrations or renewals and would not require new 
contracts 
  with existing registrants. </font></p>
<p></p>
<h4 align="center"><font face="Arial, Helvetica, sans-serif"><b><br>
  </b></font></h4>