[council] Fourth draft of WHOIS task force terms of reference

Wed May 25 00:15:58 UTC 2005

Hello All,

Below is a fourth draft of the WHOIS task force terms of reference.

I reviewed the input from Marilyn Cade, Niklas Lagergren, and Tim Ruiz
(on the WHOIS mailing list).

The main changes are:

(1) Added a second paragraph that reflects the need to consider ICANN
core values using text extracted from Article 1,Section 2 of the ICANN
Bylaws (http://www.icann.org/general/bylaws.htm#I)

(2) In the third paragraph I extracted the full text of the obligation
of the Registered Name Holder to provide data from clause 3.7.7.1 of the
Registrars Accreditation Agreement
(see http://www.icann.org/registrars/ra-agreement-17may01.htm )

(3) In task 1, I have also added the need to consider laws that relate
specifically to WHOIS

For example, from searching at: http://thomas.loc.gov, I have identified
the
U.S. Fraudulent Online Identity Sanctions Act 2004, which seems to
provide penalties in the case of a Registered Name Holder doing
something wrong with the domain, and at the same time providing
materially false contact information to a domain name registrar, domain
name registry, or other domain name registration authority.   Note
however this Act doesn't specifically mention the WHOIS service.   The
current requirement for Registered Name Holders to provide correct
information is consistent with this Act.

The various privacy laws around the world would seem to directly apply
to WHOIS with respect to Personal Data.

If members of the task force are aware of specific laws that related to
WHOIS then they can post them to the list, and advise ICANN staff.

I believe that in some countries, parties selling services on the
Internet must display their contact information on the website (and
presumably in emails) that is used to provide the service as part of
consumer protection laws.    These laws may not have any requirement
with respect to WHOIS.

(4) In task 3, I added the definition of "Domain Holder" from the
Transfers Policy report.

(5) I added a new task 5, that relates to the work on conflicts between
the ICANN agreement and local laws.

With respect to further changes to task 4 relating to accuracy, I noted
that Niklas wished to include work on preventing the initial collection
of inaccurate data.   Marilyn also referenced a provision in the
registrars accreditation agreement that states that if a consensus
policy is created in this area, that registrars must comply (which is of
course redundant as registrars have to comply with any consensus
policy).   I understand that this issue has been discussed at length
within the previous WHOIS Task Force 3, and that there did not seem to
be a chance in the short term of reaching consensus on further work on
improving data collection.  In the last few meetings of the WHOIS Task
Force 3, there did seem to me to be willingness to improve the process
of reporting, and responding to reports, on WHOIS inaccuracy, and
potentially doing some verification of data provided in response to an
accuracy complaint.    I have drafted the terms of reference to be
consistent with the work items that have been discussed so far in Mar
Del Plata and in other recent meetings of the WHOIS task force and the
GNSO Council.   I suggest that further work on improving accuracy of
data collection, would be more appropriate once other aspects of the
WHOIS service have been refined.   

I have not added a task relating to requiring registrants to explicitly
agree to the WHOIS provisions, as this work has as I understand it been
completed by the task force (the final report is almost complete), and
will be discussed at the Council before these terms of reference will be
approved.

Regards,
Bruce Tonkin

Fourth Draft of Terms of Reference for WHOIS task force

The mission of The Internet Corporation for Assigned Names and Numbers
("ICANN") is to coordinate, at the overall level, the global Internet's
systems of unique identifiers, and in particular to ensure the stable
and secure operation of the Internet's unique identifier systems. 

In performing this mission, ICANN's bylaws set out 11 core values to
guide its decisions and actions. Any ICANN body making a recommendation
or decision shall exercise its judgment to determine which of these core
values are most relevant and how they apply to the specific
circumstances of the case at hand, and to determine, if necessary, an
appropriate and defensible balance among competing values.

ICANN has agreements with gTLD registrars and gTLD registries that
require the provision of a WHOIS service via three mechanisms: port-43,
web based access, and bulk access.   The agreements also require a
Registered Name Holder to provide to a Registrar accurate and reliable
contact details and promptly correct and update them during the term of
the Registered Name registration, including: the full name, postal
address, e-mail address, voice telephone number, and fax number if
available of the Registered Name Holder; name of authorized person for
contact purposes in the case of an Registered Name Holder that is an
organization, association, or corporation; the name, postal address,
e-mail address, voice telephone number, and (where available) fax number
of the technical contact for the Registered Name; and the name, postal
address, e-mail address, voice telephone number, and (where available)
fax number of the administrative contact for the Registered Name.   The
contact information must be adequate to facilitate timely resolution of
any problems that arise in connection with the Registered Name.

A registrar is required in the Registrar Accreditation Agreement (RAA)
to take reasonable precautions to protect Personal Data from loss,
misuse, unauthorized access or disclosure, alteration, or destruction.

The goal of the WHOIS task force is to improve the effectiveness of the
WHOIS service in maintaining the stability and security of the
Internet's unique identifier systems, whilst taking into account where
appropriate the need to ensure privacy protection for the Personal Data
of natural persons that may be Registered Name Holders, the authorised
representative for contact purposes of a Register Name Holder, or the
administrative or technical contact for a domain name.

Tasks:

(1) Define the purpose of the WHOIS service in the context of ICANN's
mission and relevant core values, international and national laws
protecting privacy of natural persons, international and national laws
that relate specifically to the WHOIS service, and the changing nature
of Registered Name Holders.

(2) Define the purpose of the Registered Name Holder, technical, and
administrative contacts, in the context of the purpose of WHOIS, and the
purpose for which the data was collected.  
Use the relevant definitions from Exhibit C of
the Transfers Task force report as a starting point (from
http://www.icann.org/gnso/transfers-tf/report-exhc-12feb03.htm):

"Contact: Contacts are individuals or entities associated with domain
name records. Typically, third parties with specific inquiries or
concerns will use contact records to determine who should act upon
specific issues related to a domain name record. There are typically
three of these contact types associated with a domain name record, the
Administrative contact, the Billing contact and the Technical contact.

Contact, Administrative: The administrative contact is an individual,
role or organization authorized to interact with the Registry or
Registrar on behalf of the Domain Holder. The administrative contact
should be able to answer non-technical questions about the domain name's
registration and the Domain Holder. In all cases, the Administrative
Contact is viewed as the authoritative point of contact for the domain
name, second only to the Domain Holder.

Contact, Billing: The billing contact is the individual, role or
organization designated to receive the invoice for domain name
registration and re-registration fees.

Contact, Technical: The technical contact is the individual, role or
organization that is responsible for the technical operations of the
delegated zone. This contact likely maintains the domain name server(s)
for the domain. The technical contact should be able to answer technical
questions about the domain name, the delegated zone and work with
technically oriented people in other zones to solve technical problems
that affect the domain name and/or zone.
Domain Holder: The individual or organization that registers a specific
domain name. This individual or organization holds the right to use that
specific domain name for a specified period of time, provided certain
conditions are met and the registration fees are paid. This person or
organization is the "legal entity" bound by the terms of the relevant
service agreement with the Registry operator for the TLD in question."

(3) Determine what data collected should be available for public access
in the context of the purpose of WHOIS.  Determine how to access data
that is not available for public
access.   The current elements that must be displayed by a registrar
are:

- The name of the Registered Name;

- The names of the primary nameserver and secondary nameserver(s) for
the Registered Name;

- The identity of Registrar (which may be provided through Registrar's
website);

- The original creation date of the registration;

- The expiration date of the registration;

- The name and postal address of the Registered Name Holder;

- The name, postal address, e-mail address, voice telephone number, and
(where available) fax number of the technical contact for the Registered
Name; and

- The name, postal address, e-mail address, voice telephone number, and
(where available) fax number of the administrative contact for the
Registered Name.

(4) Determine how to improve the process for notifying a registrar of
inaccurate WHOIS data, and the process for investigating and correcting
inaccurate data.  Currently a registrar "shall, upon notification by any
person of an inaccuracy in the contact information associated with a
Registered Name sponsored by Registrar, take reasonable steps to
investigate that claimed inaccuracy. In the event Registrar learns of
inaccurate contact information associated with a Registered Name it
sponsors, it shall take reasonable steps to correct that inaccuracy."

(5) Determine how to resolve differences between a Registered Name
Holder's, gTLD Registrar's, or gTLD Registry's obligation to abide by
all applicable laws and governmental regulations that relate to the
WHOIS service, as well as the obligation to abide by the terms of the
agreements with ICANN that relate to the WHOIS service.   

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