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

[Marilyn Cade]

This response is for a targeted question,Avri, specific to language that I
used in the BC recommendation regarding how a notice should be presented. 

There is now a different question. Related, but different. 

In  my view, the TF has more work to do to agree on whether they have a
question,  and then define a question -- that is well defined enough to take
up Council's time and then legal counsel's time. 

I think that the TF has to be focused itself on whether there is agreement
on what a question(s) is that would address the present debate/question that
has been raised by one member, and now concurred with by a few more, with to
hers not in agreement.Thus, the TF needs to do its work. They will
undoubtedly decide if they are bringing a request for legal guidance into
the Council shortly. 

Regards, Marilyn



-----Original Message-----
From: owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org] On
Behalf Of Avri Doria
Sent: Thursday, August 11, 2005 11:28 PM
To: council at gnso.icann.org
Subject: Re: [council] Response from Deputy General Counsel on "clear and
conspicuous"

Hi,

I don't understand this response.  Or rather I see that they approve  
the phrase but no indication that it does not in any way limit a  
registrant privacy rights.

Since I think it is important that privacy rights not be further  
eroded by any new WHOIS policies, I do agree that we should have a  
complete understanding of the consequences of the wording.

thanks
a.

On 11 aug 2005, at 21.35, Bruce Tonkin wrote:

>
>
> -----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
>>>>
>>
>>
>
>
>
>