RE: [registrars] Draft for TF2

["Tim Ruiz" <tim@xxxxxxxxxxx>]

All,

If ICANN is going to continue to encourage global participation it cannot
ignore the fact that registrars, like other businesses, are going to be
subject to local laws. That concerns me as it does many of you, but
realistically, I don't see how that fact can be ignored.

I also want a level playing field, but I understand that it must be relative
and that we cannot avoid the issues that globalization creates in our
industry.

I believe that a simple rule that requires public availability of
registration/Whois data, within the scope of local law, is what we need. We
should eliminate the idea of requiring specific methods, such as port 43,
bulk access, or even Web based whois. If someone wants the Whois info for a
domain managed by an EU registrar they will have to follow that registrar's
EU privacy compliant process to get it. That registrar should not be able to
just deny the request unilaterally. And the method by which legitimate,
compliant requests are made or fulfilled should be the decision of the
registrar.

I don't believe we are ever going to see ICANN tell potential registrars
that because of their geographic location they do not qualify to be a
registrar. However, if Rob can get laws passed in Barbados that are
favorable to registrars, we all have the option of moving our businesses
there.

As far as transfers are concerned, there is a solution that would solve any
issue with conflicts with local privacy laws. The transfer should start with
the current registrar of record. The current registrar understands best the
local laws under which they operate. Upon a legitimate and verified request
to transfer by a registrant or their verified agent, the registrar would
flag the domain as transferable at the registry and return a key,
authorization code, whatever you want to call it, to the registrant. The
registrant can then take that key to the registrar of their choice anywhere
in the world and complete the transfer without the need for any transfer of
private information. That could be collected directly from the registrant
under their own local laws and regulations.

Any concern about incentive on the losing registrar's part to comply with
transfer requests will ultimately be answered by the market itself. And any
enforcement mechanism on the part of ICANN will be much less complicated
since it will involve a single registrar and single set of local laws.

All that said, I do not feel that any of the current Whois Task Forces
appear to have enough information, input, or time to appropriately recommend
any sweeping changes to the status quo prior to or by the time of meeting in
KL in July.

I support Ross' draft statement. I cannot support the current drafts of
either of the other task forces.

Tim


-----Original Message-----
From: owner-registrars@xxxxxxxxxxxxxx
[mailto:owner-registrars@xxxxxxxxxxxxxx] On Behalf Of Jean-Michel Becar
Sent: Thursday, April 08, 2004 8:12 PM
To: Paul Stahura
Cc: 'Rob Hall'; Registrars Mail List
Subject: Re: [registrars] Draft for TF2

The problem is a law is a law and a contract is always subject to the
law and not the opposite.
So if in Japan we have a law which doesn't allow us to give the personal
data to a third party we cannot.
So I don't see your point.
How can you be in favor of outlaw business???

I remenber the time of the test bed agreement signature is was in 1999,
we knew we would have some problem with the whois according to the
registrar country but at that time we were too impatient to start so we
postponed the question. But today here we are and we have to find a
solution. cause someday many registrars will be declare outlaw and what?
we have to move to somewhere else? Seriously guys ;-)

So for transfer I don't think there is no privacy violation in anycase
because the registrant is asking himself the transfer, so I don't think
the privacy local laws will be a problem.
Now in terms of egality amongst the registrars... yeah some registrars
will have different PUBLIC whois output according to their local law.
Hey guys this is competition :-) so let's enjoy a little bit of
differentiation here, let's try to make the registrar business less boring.
( I like to take the formula one example where each time a new
regulation appeared everybody aggreed to say it would slow down the cars
but was never the case, the engineers always found smart ways to come up
with something better and only because they had been pushed by the
regulation...without regulation we would have today the same cars as 10
years ago)

regards,
Jean-Michel



Paul Stahura wrote:

>Rob's point is well taken.  The EU privacy restrictions do prohibit
>transmitting personal identification information to any country which does
>not have privacy laws at least as protective as those of the EU.  The US is
>on the list of countries which do not have adequate privacy laws. European
>registrars, right now, could shut down WHOIS and transfers on this basis.
>I'm a little surprised that no one has made this claim yet, or is
>transmitting the information for purposes of transfer somehow not a
>violation?
>
>Since we are probably all forming European establishments to take advantage
>of the lowest VAT tax rate (in Madera), then in thinking about it, I guess
>thin-registry transfers from EU registrars will just have to be to these EU
>establishments.
>
>This doesn't speak to Barbados.  Will all domain name registrars migrate to
>or become mired in the country with the strictest privacy rules?
>
>If the statement stays in, would EU registrars, for example, be allowed to
>not transmit the whois data to thick registries located in the US, while
the
>rest of us have to?
>
>One solution Rob suggests (if there is a conflict between local law and
>ICANN contract) is for the registrar to move its location to one where it
>can comply with its ICANN contract (if the local law is in contradiction),
>but another solution may be something like "all for one and one for all". 
>
>For example
>"If one Registrar is in breach with its ICANN contract due to local
>jurisdiction regarding the collection, display and distribution of personal
>data, then all registrars are able to cure the breach the same way that one
>registrar does"  or some kind of lowest-common-denominator language which
>allows us all to have the same contract with ICANN.
>
>I agree with Rob, we all need to be bound by the same ICANN contract
>provisions no matter what country you are located in.
>
>
>
>
>-----Original Message-----
>From: owner-registrars@xxxxxxxxxxxxxx
>[mailto:owner-registrars@xxxxxxxxxxxxxx] On Behalf Of Rob Hall
>Sent: Thursday, April 08, 2004 3:53 PM
>To: Registrars Mail List
>Subject: RE: [registrars] Draft for TF2
>
>Thomas et al.
>
>I note that the TF2 report has the following statement:
>
>"No Registrar should be forced to be in breach with its  local jurisdiction
>regarding the collection, display and distribution of personal data to be
>able to provide ICANN approved domain registrations regardless whether the
>WHOIS service is provided by themselves or another party. "
>
>
>I am very concerned with this statement.  While I know my position may be
>unpopular, I believe it critical to the Registrar Industry.
>
>All ICANN Registrars were created equally and must be treated equally.  Our
>contract with ICANN actually speaks to this equality, and I believe it must
>be maintained.
>
>The above statement would seem to imply that all Registrars must not behave
>in the same fashion, and that therefore ICANN should not treat them
equally.
>
>While I sympathize with Registrars who's governments may pass legislation
>making it difficult for them to adhere to their contractual requirements, I
>don't believe that the answer is for ICANN to simply ignore, nor just not
>enforce, those provisions.   Rather, I believe that if our government is
>about to put into place legislation that makes it impossible for us to be a
>Registrar, it is incumbent on us to educate them as to the ramifications of
>their actions.  If a government were to put into place legislation that
>prevented a Registrar from complying with their ICANN contract, then I
>believe the Registrar has at least 2 choices:  Move to a different
>jurisdiction, or stop being a Registrar.
>
>But to say that a Registrar should not have to comply with provisions of a
>contract they voluntarily entered into simply because their local
>jurisdiction prohibits it, is wrong.
>
>I won't even begin to speak to how many people (Registrars included) have
>interpreted current privacy laws in ways that benefit their business case,
>but are not quite factual.  Most privacy legislation I have seen attempts
to
>ensure that data providers are informed of how their data will be used.  It
>is then their choice as to whether they purchase the domain or not, given
>that they now are aware of how the information will be used.
>
>Take for example, NameScout, which is incorporated in the Barbados.  Is it
>really fair for NameScout to claim that because we are in the Barbados that
>there is a local law that says I can not publish ANY whois information, nor
>can I allow any domain transfers to another Registrar.  As the only domain
>Registrar in the Barbados, should we lobby for a local law that totally
>contradicts our contractual ICANN obligations, and then be able to stand up
>and say "sorry, but we can't comply with those obligations, and you can't
>make us)".
>
>In fact, I suspect we would immediately see some forum (read Country)
>shopping to base Registrars in.
>
>While I am all for attempting to find rules for whois that currently meet
>all countries privacy rules, these rules tend to be very dynamic, and I
fear
>that much effort will be spent and will be quickly outdated (if a common
>position can even be found).  Our efforts need to focus on fixing what is
>broken within the Whois service.  If that can be done with privacy rules in
>mind, so much the better.  If the new solution violates some jurisdictions
>new privacy laws, then perhaps we are better with the status quo (although
I
>doubt it). Either that, or we move ahead with the new solution, without any
>exemption for local laws.
>
>I understand the frustration with local laws that may hamstring our
>businesses. But we must take care not to simply open loopholes that create
>contractual inequities between Registrars simply because of their location.
>Like it or not, ICANN is a California corporation that we voluntarily
choose
>to contract with. We are a Registrar solely by virtue of this contract.
>Without it, we are not an ICANN Registrar.
>
>Rob.
>  
>