[council] Response from Deputy General Counsel on "clear and conspicuous"

[Bruce Tonkin]

-----Original Message-----
From: Daniel Halloran [mailto:daniel.halloran at icann.org] 
Sent: Friday, 12 August 2005 4:02 AM
To: Bruce Tonkin
Cc: Whois TF mailing list
Subject: Re: [gnso-dow123] Note to council on Notice recommendation

Bruce,

As we discussed, this will confirm that John Jeffrey and I have reviewed
and approved the use of the phrase "clear and conspicuous"  
in the "Updated consensus recommendation on improving notification to
Registered Name Holders of the public access to contact data via the
WHOIS service" <http://www.gnso.icann.org/mailing-lists/archives/
council/msg01159.html>.

We'll stand by to review any possible questions the task force might
develop on the "waiver" issue discussed below.

I hope this will be helpful.  Please let me know if I can be of any
other assistance.

Best regards,
Daniel Halloran
Deputy General Counsel
ICANN



On Aug 9, 2005, at 18:44 PM, Bruce Tonkin wrote:

>
> Hello Jordyn,
>
> I did receive a call from Dan Halloran of the ICANN General Counsel's 
> office with respect to the WHOIS recommendation.  I expect a response 
> from him shortly on the "clear and conspicuous" notice terminology.
>
> Is it possible for the task force to frame a specific question on the 
> concern about the impact of the proposed recommendation on privacy 
> rights?  I can then send this to the General Counsel's office for 
> advice.
>
> Perhaps a member of the task force can set out the reasons for the 
> concern on the WHOIS mailing list.
>
> The intent of the current recommendation is to better inform 
> registrants of a current obligation.
>
> As I understand the current obligation, registrars are required to 
> publish some information via the WHOIS service  (clause 3.3 of the 
> RAA), registrars are required to provide notice to registrants of the 
> purposes for which the data is intended and the internet recipients of

> that data (clause 3.7.7.4 of the RAA), and registrars are required to 
> get
> registrants to agree to this (clause 3.7.7.5 of the RAA).   If the
> recommendation waives any existing rights of the registrant then this 
> needs to be considered carefully.
>
> With reference to:
> http://www.icann.org/registrars/ra-agreement-17may01.htm#3
>
>
> Note that with respect to clause 3.7.7.4  - "shall provide notice", 
> Dan did inform me that having this information in a privacy policy, or

> sent via email, or displayed at the time of registration, would meet 
> that requirement.  It is not currently necessary to include the 
> "notice"
> within the terms and conditions.  Registrars have significant 
> flexibility on how they choose to meet this obligation in the
> RAA.   It
> seems prudent not to actually interfere with this flexibility with 
> respect to clause 3.7.7.4.  Thus the new WHOIS recommendation should 
> be read in the context of a separate clause within 3.7.7.
>
> Regards,
> Bruce Tonkin
> Chair, GNSO
>
>
>>
>> On 09/08/2005 6:29 PM Jordyn A. Buchanan noted that;
>>
>>> As we discussed on today's call, a concern has been raised that the 
>>> recommendation on Notice to registrants, currently before the 
>>> Council, may be viewed as some kind of waiver of
>>>
>> registrant's privacy  rights.
>>
>>> This was not the intent of the recommendation, and not
>>>
>> something that
>>
>>> we had originally considered within the task force.   As a
>>>
>> result, we
>>
>>> agreed on today's call that I would send a note to  Bruce and the 
>>> Council requesting further consideration of this issue.
>>>
>>> Here's the request I propose to send.  Please let me know
>>>
>> (quickly)
>>
>>> if anyone believes this doesn't correctly reflect our
>>>
>> agreement from
>>
>>> the call today:
>>>
>>> Dear Bruce:
>>>
>>> In discussions of the Whois TF this week, a concern was
>>>
>> raised that
>>
>>> the current proposal relating to improving notice to registrants 
>>> regarding the use of their contact details in the Whois
>>>
>> system may be
>>
>>> viewed as a waiver of registrants privacy rights.  It was not the 
>>> intent of the task force that the recommendation act as any
>>>
>> sort of
>>
>>> waiver, but this was not an issue that we considered during
>>>
>> the work  of the task force.
>>
>>> We do believe that this is an important issue,  however,
>>>
>> and believe
>>
>>> that it would be premature for the Council to  adopt the policy 
>>> recommendations without considering it.  As a  result, I am
>>>
>> writing to
>>
>>> request that the Council either:
>>>
>>> a) Refer the recommendation back to the Task Force for further 
>>> consideration of this specific issue; alternatively, the
>>>
>> Council may
>>
>>> want to consider this specific issue itself, or
>>>
>>> b) Delay adoption of this recommendation until such time as
>>>
>> the full
>>
>>> range of issues currently being considered by the task force have 
>>> resulted in a broader set of recommendations that may render this 
>>> issue moot.
>>>
>>> Thanks,
>>>
>>> Jordyn A. Buchanan
>>> Chair, Whois TF
>