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

[Tim Ruiz <tim@xxxxxxxxxxx>]

The motion below now includes Tom's suggested edits in the paragraph
under the quoted recommendation 2.

The following members have endorsed the motion:

Tucows
Directi
Network Solutions
CORE
Melbourne IT
Schlund

The rules of procedure seem to indicate that the next step is to file
the motion with the Secretary who will publish it to the list for no
less than 14 days of discussion. However, the motion has already been
on the list for discussion for 11 days. Our Task Force members were
asked to have a statement by January 31. I suggest that we consider
these periods one and the same. On the 23rd we would call for a vote.
The ballot would be posted the same day for only a 24 hour review
period. There would be a seven day voting period that would commence on
the 24th and close on January 31, giving our Task Force members a
statement to submit on January 31.

The reason I believe we only need a 24 hour review of the ballot is that
the ballot is simply a yay or nay to the motion that has already been on
the list for 14 days.

Tim

<MOTION>
The Registrar Constituency position is that these recommendations are
over-reaching, unrealistic and inappropriate.

Specifically...

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 other than the Domain
Name Registration Agreement (or Terms and Conditions) 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 disclosure
regarding availability? Availability of what? This should be defined.

This recommendation would be acceptable in the following form (with the
potential to include a reference to "availability" if agreeable
clarification is forthcoming);

1. Registrars must ensure that disclosures regarding availability and
third-party access to personal data associated with domain names
actually be
AVAILABLE to registrants during the registration process.

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 registrars legal agreements with its
registrants is
inappropriate and without precedent under current agreements. This
entire
clause should 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.


Since this is already required in the current RAA in sub-sections
3.7.7.4,
3.7.7.5, and 3.7.7.6, this recommendation should be removed from the
Task
Force recommendations.
</MOTION>