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

[Jordyn A. Buchanan]

One other quick thought in response to Champ's note:

Given that NSI, and perhaps other registrars, are already implementing 
some of these recommendations, perhaps the constituency statement could 
reflect that we understand the concerns of the task force, but given 
the difficulties of implementation, we do not believe that 
recommendation #2 is  practical and should not be adopted as consensus 
policy.  Instead, the constituency could encourage registrars to 
improve notification to registrants on a voluntary basis.

Jordyn

On Jan 21, 2005, at 1:59 PM, Mitchell, Champ wrote:

> Tim and Jordyn,
>
> You are both right. I agree with everything Tim says and agree with
> Jordyn that we probably would be better to not reinforce that no one
> reads shrink wrap agreements (which I am not sure is always true, but
> the other side will pound that in).
>
> Having said that, Tim is absolutely right that it is impractical as 
> well
> as inappropriate to try to require:
>
> 	" 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."
>
>
> Network Solutions actually does what is suggested by the first two
> sentences in our purchase flow. However, as times change and "hot
> topics" change we all need the flexibility to respond. One thing in 
> this
> world that is not quickly responsive to change is ICANN and its policy
> process. Also, as you point out Jordyn, this is a bit of opening
> Pandora's box. Today we must "set aside" one provision because it is a
> hot issue. Tomorrow it will be another, and then another, and then
> another....
>
> However, the biggest argument of all against both the "setting
> aside"/"separateness" and the "uniform wording where feasible" is that
> none of these noble suggestions take into consideration the national
> laws of the various jurisdictions where registrars operate. Whenever
> ICANN tries to get too specific, it will always end up putting in a
> requirement that violates some nation's law. First, that places an
> unfair burden on registrars and registries. Second, ICANN should be
> especially sensitive to this right now given its imbroglio with WSIS.
>
> While I am not an unvarnished believer that the free market corrects 
> all
> faults, 17 years of practicing law and dealing with the political 
> issues
> of the world's second largest tobacco company in over 160 countries 
> tell
> me at a gut level that this proposal is a fool's errand on its best 
> day,
> and dangerous and destructive on all of the others. The truth is, Paul
> Twomey and his staff would have to be idiotic to support this in the
> present climate, and we should not ask people to do something
> self-destructive.
>
> W. G. Champion Mitchell
> Chairman & CEO
> Network Solutions Inc.
> -----Original Message-----
> From: owner-registrars at gnso.icann.org
> [mailto:owner-registrars at gnso.icann.org] On Behalf Of Jordyn A. 
> Buchanan
> Sent: Friday, January 21, 2005 11:05 AM
> To: Tim Ruiz
> Cc: registrars at dnso.org; Robert F. Connelly
> Subject: Re: [registrars] RE: Call for Constituency statements on Whois
> tf 1/2 recommendations
>
> I'm going to make a quick comment on the statement purely in my
> capacity as the co-chair of the Task Force, albiet with some sympathy
> for some concerns raised by Tim as a member of the constituency:
>
> First, on this portion of the statement:
>
>> 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 registrars legal agreements with its
>> registrants is
>> inappropriate and without precedent under current agreements. This
>> entire
>> clause should be removed from the recommendations.
>
> The statement only seems responsive to the final sentence of the
> recommendation, and it's a little unclear if the intent is to strike
> that sentence, or the entire second point.
>
> Also, it seems that the current section 3.7.7 of the RAA is all about
> specifying the "form and scope" of the registrars legal agreements with
> registrants.  Maybe this should be changed to something about
> prescribing the manner in which legal agreements are presented to
> registrants is without precedent?
>
> (However, I'm still not sure that "without precedent" seems like a
> wonderful argument in any case--a lot of new policy is without
> precedent.  Shouldn't there be some substantive reason why the change
> is harmful in and of itself other than the mere fact that it's not been
> done before?)
>
>> 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.
>
> This is the very point that led the Task Force to make these
> recommendations.  Affirming it only provides further ammunition to
> those who argue that changes in the way that registrars are notified of
> (and consent to the use of) the use of their contact information in the
> WHOIS system.
>
> The driving force behind these recommendations is that registrants
> DON'T read shrink wrap agreements and hence will not know that their
> contact information is being made publicly available through WHOIS.
> Hence, they should be explicitly made aware of this fact separate from
> the agreement that they're not going to read.
>
> Perhaps the discussion of the difficulty of implementing this should be
> expanded (with some further explanation as to why it's difficult).  It
> might also be reasonable to argue that there are other, equally or more
> important, elements of the registration agreement that are not
> specifically highlighted for the registrant and that it would become
> trying for registrars to separate each of these provisions from the
> main agreement.
>
> Overall, it seems that the statement as it currently stand reiterates
> the problem (that registrants don't read the current agreement so
> aren't aware of the use of their data) but seems to say "but we're not
> willing to do anything to fix it".  I'm not sure that this is a view
> that is likely to carry a lot of weight within the task force, and it
> may be difficult to find the support of any of the other
> constituencies.
>
> Jordyn
>
>
>
>> 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>
>>
>
>
>