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

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

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
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
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
they have read and understand these disclosures.  This provision does
affect registrars' existing obligations to obtain registrant consent to
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.


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