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

[Tim Ruiz]

The motion has been amended to include Bruce's clarification in the second
paragraph following the first quoted recommendation. A couple of typos were
also cleaned up.

NOTE: We still need one more endorsement.

Tim

<MOTION>
The Registrar Constituency position is that these recommendations are
over-reaching, unrealistic and inappropriate.

Specifically...

RE: 1. Registrars must ensure that disclosures regarding availability and
third-party access to personal data associated with domain names actually be
presented to registrants during the registration process. Linking to an
external web page is not sufficient.

It is inappropriate to view the registration exercise as a policy education
process. It is a registration process and should be as simple,
straightforward and unburdened as possible for registrants to conclude. The
current trend to "cram" all sorts of notices, and prescribe the method of
notification, into the registration process interferes with the potential
simplicity of this process.

Furthermore, presenting anything to the registrant other than the Domain
Name Registration Agreement (or Terms and Conditions) during the
registration process is an entirely new obligation that would require many
registrars to completely re-establish their method of registration. For
wholesale registrars, this represents a highly onerous burden.

Lastly, this recommendation is highly unclear. What is a disclosure
regarding availability? Availability of what? This should be defined.

This recommendation would be acceptable in the following form (with the
potential to include a reference to "availability" if agreeable
clarification is forthcoming);

1. Registrars must ensure that disclosures regarding availability and
third-party access to personal data associated with domain names actually be
AVAILABLE to registrants during the registration process.

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 my legal agreements with my registrants is
inappropriate and without precedent under current agreements. This entire
clause should be removed from the recommendations.

RE: 3. Registrars must obtain a separate acknowledgement from registrars
that they have read and understand these disclosures.  This provision does
not affect registrars' existing obligations to obtain registrant consent to
the use of their contact information in the WHOIS system.

Presumably, this was intended to read "acknowledgement from Registrants
that...", nonetheless requiring separate acknowledgement is an unworkable
condition that cannot be practically implemented in the current environment.
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.
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>