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


One other quick thought in response to Champ's note:

Given that NSI, and perhaps other registrars, are already implementing some of these recommendations, perhaps the constituency statement could reflect that we understand the concerns of the task force, but given the difficulties of implementation, we do not believe that recommendation #2 is practical and should not be adopted as consensus policy. Instead, the constituency could encourage registrars to improve notification to registrants on a voluntary basis.

Jordyn

On Jan 21, 2005, at 1:59 PM, Mitchell, Champ wrote:

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>








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