Re: [registrars] RE: Call for Constituency statements on Whois tf 1/2 recommendations

["Ross Wm. Rader" <ross@xxxxxxxxxx>]

Tim Ruiz wrote:

> Policy positions are not something we should attempt to fasttrack. This
> deadline needs to be moved to something realistic, probably at least
> mid-February.
To that end, it would be useful if either Tom or Paul prepared a 
strawman statement that we could use as the basis for our position.
Tucows position is that these recommendations are over-reaching, 
unrealistic and inappropriate.
Some specific comments...

RE: 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.

It is inappropriate to view the registration exercise as a policy 
education process. It is a registration process and should be as simple, 
straightforward and unburdened as possible for registrants to conclude. 
The current trend to "cram" all sorts of notices, and prescribe the 
method of notification, into the registration process interferes with 
the potential simplicity of this process.
Furthermore, presenting anything to the registrant during the 
registration process is an entirely new obligation that would require 
many registrars to completely re-establish their method of registration. 
For wholesale registrars, this represents a highly onerous burden.
Lastly, this recommendation is highly unclear. What is a disclossure 
regarding availability? Availability of what? This should be defined.
This recommendation would be acceptable to Tucows in the following form 
(with the potential to include a reference to "availability" if 
agreeable clarification is forthcoming);
1. Registrar must disclose to potential registrants that personal data 
associated with their domain name will be provided to third parties in 
accordance with ICANN Whois policy.
RE: 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.
The wording of the notice provided by registrars should, to the extent
feasible, be uniform.

Prescribing the form and scope of my legal agreeements with my 
registrants is inappropriate and without precedent under current agreements.
Tucows position is that this entire clause be removed from the 
recommendations.
RE: 3. Registrars must obtain a separate acknowledgement from registrars
that
they have read and understand these disclosures.  This provision does
not
affect registrars' existing obligations to obtain registrant consent to
the
use of their contact information in the WHOIS system.

Presumably, this was intended to read "acknowledgement from Registrants 
that...", nonetheless requiring separate acknowledgement is an 
unworkable condition that cannot be practically implemented in the 
current environment. Today, a Registrar is required to bind a Registrant 
to a series of obligations. It is a well known fact that customers do 
not read point-of-sale agreements. This is especially true of click-wrap 
agreements. Ascertaining whether or not a Registrant has read and 
understands those obligations is beyond the scope of existing 
registration processes.
It is really only appropriate to obtain a Registrants agreement that 
their data will be included in the Whois and make this a condition of 
registration in a fashion similar to the other terms a Registrant must 
agree to prior to undertaking a registration.
Tucows position is that this recommendation be removed or alternatively, 
be limited to requiring a Registrar to bind a registrant to agreeing to 
the disclosure of their data to third parties via the Whois service. 
(Note: I haven't reviewed the relevant agreements to determine whether 
or not this may already be a requirement, if it is, then this 
recommendation should be simply removed from the Task Force 
recommendations.)
I'd be happy to clarify any of these points if there are further questions.
--





                      -rwr



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