[Rt4-whois] Questions on Recommendation 17

[Seth M Reiss]

I am not sure why the AoC could not trump Consensus Policy if that is what
ICANN intended when it signed the AoC.  I am not saying this is a desirable
result on this issue - that the AoC intended to set aside the Whois
Marketing Restricting Policy - I suspect most of us would want that policy
retained; but the question of whether the AoC can be construed to require
changes to policies, agreements and the like is probably a question
implicating the interaction of contract and corporate law in this instance.
One cannot simply say that the AoC is subservient to all policy created to
date.  We do not question that the AoC potentially implicates changes to the
RAA, for example.  So why could it not also implicate changes to a consensus
policy?  How we get there without running afoul of the ICANN articles and
bylaws is probably a separate question.

 

Seth  

 

From: rt4-whois-bounces at icann.org [mailto:rt4-whois-bounces at icann.org] On
Behalf Of Kathy Kleiman
Sent: Wednesday, February 08, 2012 7:57 AM
To: Lutz Donnerhacke
Cc: rt4-whois at icann.org
Subject: Re: [Rt4-whois] Questions on Recommendation 17

 

Lutz wrote:



Yes, that's the reasoning behind the proposal: The AoC urges ICANN to
provide such an unrestricted access. Unfortunly many registries does rate
limit the access or does not provide all the required data.

Hi Lutz,  
Yes, the registrars and registries rate limit because they feel required to.
It is part of the Whois Marketing Restriction Policy of 2004 -- one of the
few bright spots of the type of consensus from the GNSO we have been looking
for -- that bars registries and registrars from allowing data mining of the
Whois databases for spam, other forms of unwanted advertising, profiling,
etc.  (Quote from our draft report, chapter 3, is below.)  Rate limiting is
a tried and true way of preventing data mining, as you know.

So here's a followup question: Are we saying, somehow, that the language of
the AOC trumps and takes precedence over this Consensus Policy?  If so, I
think we really need to spell it out for the community and the GNSO.  

But somehow, I don't think we meant to overturn this marketing restriction
policy.  As I have mentioned, I think we should be very carefully of
recommended specific technical fixes -- but lay out the problem, and the
need for a solution, and allow the Community to find it.

Chapter 3 Excerpt: 
"WHOIS Marketing Restriction Policy: This policy, a combination of two
distinct GNSO policy recommendations, creates two policy changes to the
Registrar Accreditation Agreement:
a. Registrars must require third parties "to agree not to use the [Whois]
data to allow, enable, or otherwise support any marketing activities."
b. Registrars must "agree not to sell or redistribute the [Whois] data"
(with some exceptions). http://www.icann.org/en/registrars/wmrp.htm"

Best, 
Kathy




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