[council] Proposed amendment to BCUC motion

[Mawaki Chango]

Mike and all,

In fact, the Whois policy has never been developed based on a
bottom-up process and consensus involving the community (whether
wider or narrower.) So it lacks of that legitimacy, in the first
place, to be able to invoke that argument now to maintain it.

>From discussions I've been having with my fellows NCUCers, it
appears that given those circumstances, the present situation
means that the default value becomes "no whois requirement at
all" until and unless we can agree on a consensus policy
regarding Whois. This was how ICANN was supposed to work - no
policy without consensus. 

For information, I'm referring to the section 3.3.1 of the RAA
version May 2001, and any variant thereof:

        3.3.1 At its expense, Registrar shall provide an
interactive web page and a port 43 Whois service providing free
public query-based access to up-to-date (i.e., updated at least
daily) data concerning all active Registered Names sponsored by
Registrar for each TLD in which it is accredited. The data
accessible shall consist of elements that are designated from
time to time according to an ICANN adopted specification or
policy. Until ICANN otherwise specifies by means of an ICANN
adopted specification or policy, this data shall consist of the
following elements as contained in Registrar's database: etc.

Mawaki


--- Mike Rodenbaugh <mxr at yahoo-inc.com> wrote:

> I understand that in the absence of any contractual provisions
> re an
> open and accessible WHOIS database, registries and registrars
> would
> completely control that data with no restrictions other than
> national
> law.  Control of WHOIS data equals financial benefit. 
> 
> Maybe I am misunderstanding something, please enlighten me if
> so.  
> 
> Ross please should be precise ASAP about the contract
> provisions he
> proposes Council to suggest be eliminated.  And please advise
> when and
> where this outcome was ever discussed in an ICANN public
> forum.  
> 
> Otherwise I think it is inappropriate for us to consider this
> motion,
> since the presented solution -- to a very important and long
> debated
> issue -- has not been debated substantially by the wider
> community,
> including several Working Groups designed to discuss the
> issues.  To
> consider such a solution at Council would discredit the
> premise that
> ICANN is a bottom-up organization focused on consensus-based
> policymaking.  
> 
> We should focus on the incremental consensus that has been
> reached, and
> next steps to an implementable Consensus Policy. 
> 
> Mike Rodenbaugh
> 
> -----Original Message-----
> From: Gomes, Chuck [mailto:cgomes at verisign.com] 
> Sent: Thursday, August 30, 2007 5:20 PM
> To: Mike Rodenbaugh; ross at tucows.com
> Cc: Council GNSO
> Subject: RE: [council] Proposed amendment to BCUC motion
> 
> Mike,
> 
> To what are you referring when you say, "your proposal is also
> of
> financial benefit to Registries"?
> 
> Chuck Gomes
>  
> "This message is intended for the use of the individual or
> entity to
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>  
> 
> > -----Original Message-----
> > From: owner-council at gnso.icann.org
> > [mailto:owner-council at gnso.icann.org] On Behalf Of Mike
> Rodenbaugh
> > Sent: Thursday, August 30, 2007 1:34 PM
> > To: ross at tucows.com
> > Cc: Council GNSO
> > Subject: RE: [council] Proposed amendment to BCUC motion
> > 
> > What else do the Registrars not like in their contracts?  
> > Maybe you could propose a PDP to examine them for awhile,
> obstruct and
> 
> > obfuscate the process so that there is no consensus as to
> continued 
> > viability of those provisions, and so argue that they too
> should be 
> > removed.  If you are successful with this on WHOIS, what
> will be next?
> > 
> > Of course, your proposal is also of financial benefit to
> Registries, 
> > and satisfies the NCUC completely.  So it is surprising they
> have 
> > never to date advocated it, but will not be surprising if
> they agree 
> > with it now.
> > I cannot imagine the other three Constituencies supporting
> it.  So we 
> > will have a deeply divided Council on this issue, obviously.
> > 
> > So the answer then ought to be to work and discuss further
> to try to 
> > reach consensus.  The WG found consensus on several
> fundamental 
> > points, even as to a general OPoC policy that was not
> supported by 3 
> > Constituencies.  The WG also several factual points of
> contention 
> > that, if resolved, could lead to consensus policy.  We
> should not 
> > throw away all the work that has gone into this, and decide
> on a 
> > radical solution that has never previously been proposed or
> discussed.
> > 
> > The existing contractual provisions are certainly not
> 'unsupported' 
> > and obviously were the product of consensus among not only
> the 
> > contracting parties but also the rest of the community. 
> Everyone or 
> > at least 'almost everyone' should agree on any change to
> that status 
> > quo, including of course any proposal to eliminate it.
> > 
> > Mike Rodenbaugh
> > 
> > 
> > -----Original Message-----
> > From: Ross Rader [mailto:ross at tucows.com]
> > Sent: Thursday, August 30, 2007 10:11 AM
> > To: Mike Rodenbaugh
> > Cc: Council GNSO
> > Subject: Re: [council] Proposed amendment to BCUC motion
> > 
> > Mike Rodenbaugh wrote:
> >  > Ross, you cannot honestly call this a 'proposed
> amendment' 
> > to our  > motion.  It has nothing to do with our motion.
> > 
> > Shall I assume then that you don't view this as a friendly
> amendment?
> > 
> > > You are proposing that ICANN remove all existing
> contractual
> > provisions
> > > regarding WHOIS, on the basis that a consensus WHOIS
> policy has not
> > been
> > > achieved to date.  That is the first time I have ever
> heard someone 
> > > suggest that lack of consensus as to policy to change the
> > status quo,
> > > would lead to elimination of the status quo -- and thus in
> this
> > matter,
> > > elimination of an open and accessible WHOIS database.  I
> am quite 
> > > surprised to read such a proposal for the first time
> today, and 
> > > surprised that you did not even mention it for discussion
> > on our GNSO
> > > call today, nor in the past 7 years of debate as far as I
> know.
> > 
> > In reviewing this proposal today, I said that the matter
> before 
> > council is to test consensus on the issue of Whois policy. I
> was very 
> > clear about this when I reviewed this motion on the call
> today. If 
> > council conducts this test and cannot find consensus, how
> does it 
> > stand that the
> > 
> > status quo should be the default position? This might
> benefit your 
> > constituency, so I find your reaction understandable, but I
> don't 
> > understand your reasoning that a lack of consensus
> concerning whois 
> > policy means that the unsupported, non-consensus based
> contractual 
> > conditions should continue to prevail.
> > 
> > And for what its worth, I am not the first to advance this
> reasoning, 
> > although I do believe that it is a proper way to proceed in
> the event 
> > that there is no consensus regarding how Whois should be
> managed and 
> > maintained.
> > 
> > > 
> > > I recall you stating at our GNSO Council meeting that
> > kicked off this
> > > WG, that you would see lack of consensus as meaning we
> carry on with
> > the
> > > status quo.  Apparently your statements were disingenuous
> or your 
> > > thinking has changed dramatically since.
> > 
> > My thinking has changed, yes. My apologies for taking a less
> than 
> > dogmatic approach.
> > 
> > > It now seems clear that your
> > > long and hard battling on this issue has been designed to
> eliminate
> > ANY
> > > cost or obligation among registrars re WHOIS, rather than
> > to mitigate
> > > any 'increased' cost above the status quo, as you have so
> frequently
> > > argued.    
> > 
> > Actually both characterizations are incorrect. My policy
> object has 
> > always been to improve the privacy of individuals as it
> relates to 
> > Whois
> > 
> > such that my organization can reasonably defend its business
> practice 
> > to
> > 
> > its customers in a meaningful way consistent with Canadian
> law. There 
> > was also a time when I thought that supposed industry
> leaders might 
> > take
> > 
> > a similarly enlightened view. Too bad that protecting your
> trademarks 
> > in
> > 
> > 14 languages has to take precedent over making the internet
> a slightly
> 
> > better place, although I understand why a large publicly
> traded 
> > company might get its priorities mixed up once in a while.
> > 
> > > 
> > > These contractual provisions have existed for a very long
> time, for
> > very
> > > good reasons, and should not be considered for potential
> elimination
> 
> > > without a PDP designed to analyze that potential outcome.
> > As far as I
> > > know, it simply has never been proposed or discussed that
> we would 
> > > eliminate WHOIS altogether, so it would be ridiculous for
> Council to
> 
> > > consider that as an option now.
> > 
> > PDP stands for Policy Development Process. If you'd like to
> propose 
> > that
> > 
> > Council undertake a study to understand the implications of
> enacting, 
> > or
> > 
> > redacting a policy, your proposal might make some sense. In
> the 
> > meantime, I've made a proposal that council support the
> elimination of
> 
> > contractual terms for registrars on the basis that there is
> no 
> > consensus
> > 
> > policy to support these terms, nor any basis for consensus
> to be 
> > achieved in this area. It also leaves the door open such
> that if 
> > consensus policy on Whois services is developed in the
> future, than 
> > these consensus policies would be implemented just like any
> other 
> > consensus policy (i.e. Transfers, Data Reminder Policy,
> etc.)
> > 
> > --
> > Regards,
> > 
> > Ross Rader
> > Director, Retail Services
> > Tucows Inc.
> > 
> > http://www.domaindirect.com
> > t. 416.538.5492
> > 
> > 
> 
>