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

["Mitchell, Champ" <Cmitchell@xxxxxxxxxxxxxxxxxxxx>]

Tim and Jordyn,

You are both right. I agree with everything Tim says and agree with
Jordyn that we probably would be better to not reinforce that no one
reads shrink wrap agreements (which I am not sure is always true, but
the other side will pound that in).

Having said that, Tim is absolutely right that it is impractical as well
as inappropriate to try to require:

	" 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."


Network Solutions actually does what is suggested by the first two
sentences in our purchase flow. However, as times change and "hot
topics" change we all need the flexibility to respond. One thing in this
world that is not quickly responsive to change is ICANN and its policy
process. Also, as you point out Jordyn, this is a bit of opening
Pandora's box. Today we must "set aside" one provision because it is a
hot issue. Tomorrow it will be another, and then another, and then
another.... 

However, the biggest argument of all against both the "setting
aside"/"separateness" and the "uniform wording where feasible" is that
none of these noble suggestions take into consideration the national
laws of the various jurisdictions where registrars operate. Whenever
ICANN tries to get too specific, it will always end up putting in a
requirement that violates some nation's law. First, that places an
unfair burden on registrars and registries. Second, ICANN should be
especially sensitive to this right now given its imbroglio with WSIS. 

While I am not an unvarnished believer that the free market corrects all
faults, 17 years of practicing law and dealing with the political issues
of the world's second largest tobacco company in over 160 countries tell
me at a gut level that this proposal is a fool's errand on its best day,
and dangerous and destructive on all of the others. The truth is, Paul
Twomey and his staff would have to be idiotic to support this in the
present climate, and we should not ask people to do something
self-destructive. 

W. G. Champion Mitchell
Chairman & CEO
Network Solutions Inc.
-----Original Message-----
From: owner-registrars@xxxxxxxxxxxxxx
[mailto:owner-registrars@xxxxxxxxxxxxxx] On Behalf Of Jordyn A. Buchanan
Sent: Friday, January 21, 2005 11:05 AM
To: Tim Ruiz
Cc: registrars@xxxxxxxx; Robert F. Connelly
Subject: Re: [registrars] RE: Call for Constituency statements on Whois
tf 1/2 recommendations

I'm going to make a quick comment on the statement purely in my 
capacity as the co-chair of the Task Force, albiet with some sympathy 
for some concerns raised by Tim as a member of the constituency:

First, on this portion of the statement:

> 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.

The statement only seems responsive to the final sentence of the 
recommendation, and it's a little unclear if the intent is to strike 
that sentence, or the entire second point.

Also, it seems that the current section 3.7.7 of the RAA is all about 
specifying the "form and scope" of the registrars legal agreements with 
registrants.  Maybe this should be changed to something about 
prescribing the manner in which legal agreements are presented to 
registrants is without precedent?

(However, I'm still not sure that "without precedent" seems like a 
wonderful argument in any case--a lot of new policy is without 
precedent.  Shouldn't there be some substantive reason why the change 
is harmful in and of itself other than the mere fact that it's not been 
done before?)

> 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.

This is the very point that led the Task Force to make these 
recommendations.  Affirming it only provides further ammunition to 
those who argue that changes in the way that registrars are notified of 
(and consent to the use of) the use of their contact information in the 
WHOIS system.

The driving force behind these recommendations is that registrants 
DON'T read shrink wrap agreements and hence will not know that their 
contact information is being made publicly available through WHOIS.  
Hence, they should be explicitly made aware of this fact separate from 
the agreement that they're not going to read.

Perhaps the discussion of the difficulty of implementing this should be 
expanded (with some further explanation as to why it's difficult).  It 
might also be reasonable to argue that there are other, equally or more 
important, elements of the registration agreement that are not 
specifically highlighted for the registrant and that it would become 
trying for registrars to separate each of these provisions from the 
main agreement.

Overall, it seems that the statement as it currently stand reiterates 
the problem (that registrants don't read the current agreement so 
aren't aware of the use of their data) but seems to say "but we're not 
willing to do anything to fix it".  I'm not sure that this is a view 
that is likely to carry a lot of weight within the task force, and it 
may be difficult to find the support of any of the other 
constituencies.

Jordyn



> 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>
>