June 2005 - council - lists.icann.org

WHOIS discussion - Largest ICANN Registrars
by Alick Wilson June 23, 2005

June 23, 2005

Largest ICANN Registrars <http://www.webhosting.info/registrars/top-registrars/global/> http://www.webhosting.info/registrars/top-registrars/global/ records top 10 registrars as having 64% market share.

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Current registrar obligation with respect to WHOIS notification and its shortfall
by Bruce Tonkin June 23, 2005

June 23, 2005

Hello All, I have been reviewing the data collected by Maria on the various terms and conditions of each domain name agreement offered by registrars. It is important to note that registrars don't actually "sell" domain names. Registrars enter into an agreement with Registered Name Holders, where the registrar provides a service to register a domain name in a registry, and the Registered Name Holder has a right to use that name for a period of time. The Registered Name Holder is effectively paying for a service rather than a name. Thus all Registered Name Holders should choose the right "service" for their needs, and the service is defined by the terms and conditions of the agreement. The terms and conditions of the agreement may allow a registrar to sell the personal data for a profit. So: (1) A registrar MUST provide a WHOIS service where personal data that is collected is public displayed. (2) A registrar has an obligation to collect certain information from the registrant. (3) A Registered Name Holder must provide accurate and reliable contact details. (4) A Registrar must inform the Registered Name Holder the purposes for which Personal Data is collected (clause 3.7.7.4.1) , as well as the intended recipients of the data (clause 3.7.7.4.3). There is a relationship between the above requirements, but note that a Registrar may collect data for purposes OTHER THAN defined in (1) and (2) above. When you look at the terms and conditions of the registrar agreements with respect to requirement (4), the existance of (1) is often not specifically defined - and in some cases is not included at all. E,.g a registrar may say that they collect the data for purposes of contacting the Registered Name Holder with respect to eh Name, but not mention that all the data is made publicly available via the WHOIS service. It would seem that at least with respect to requirements (1) and (2) above, that item (4) should require the registrar to explicitly include information on (1) and (2). Some registrars do explicitly mention the WHOIS service in their terms and conditions (this is typically the larger registrars), E.g "ICANN requires "registrar" to make certain information available to the public. This information is made public via an interactive web pages and a "port-43" WHOIS service. but others are more general or even wrong- e.g "registrar will not share information with a third party either for free or by selling it" I note that the proposed recommendation 1 of the WHOIS task force recommendation is roughly equivalent to the existing 3.7.7.4.2. An improvement may be to change it to read: "Registrars must ensure that discloses regarding the availability of personal data via the WHOIS service for public access be presented to registrants during the registration process." This makes it much more explicit that information may be available for free public access via WHOIS. In some of terms and conditions collected by Maria this is not clear. Regards Bruce

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New gTLD Strategy Implementation - Draft staff paper on "New TLD Questions"
by Bruce Tonkin June 23, 2005

June 23, 2005

________________________________ From: Olof Nordling [mailto:olof.nordling@icann.org] Sent: Tuesday, 21 June 2005 11:31 AM To: 'Hans Petter Holen'; Bruce Tonkin; ceo(a)auda.org.au; sharil(a)cmc.gov.my; steve(a)shinkuro.com; junsec(a)wide.ad.jp; vb(a)bertola.eu.org Cc: 'Kurt Pritz'; 'Paul Verhoef'; 'Paul Twomey'; jeffrey(a)icann.org; 'Tina Dam' Subject: New gTLD Strategy Implementation - Draft staff paper on "New TLD Questions" To: ICANN SO and AC chairs Following the "New gTLD Strategy Implementation", as posted on the ICANN website at: http://www.icann.org/topics/gtld-strategy-area.html ICANN staff has drafted the attached document for review by the ICANN SOs and ACs. The paper provides an augmented list of questions needing firm answers for the implementation process and describes the foreseen consultative process. The very first step is now to verify the completeness of the list of questions. Is the list adequate and sufficiently complete to inform the implementation process in practice? Comments on that aspect are welcome by 22 July, i.e. a week after the end of the ICANN meeting in Luxemburg. Best regards Olof ____________________________________ Olof Nordling Manager, Policy Development Coordination ICANN 6 Rond Point Schuman, Bt.5 B-1040 Brussels, Belgium Tel.: +32.2.234 7870 Fax: +32.2.234 7848 www.icann.org <http://www.icann.org>

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RE: [council] voting proxy to Ross Rader
by Bruce Tonkin June 23, 2005

June 23, 2005

Hello Robin, > I will not be able to participate in the GNSO policy council > mtg today because I will be on a flight from Geneva to SFO. > > As it appears that none of the other NCUC council members are > able to participate, I give my voting proxy to Ross Rader. > Thanks for advising on your proxy. Given that there will be a vote on the recent WHOIS policy recommendation, please ensure you convey voting instructions to your proxy. Regards Bruce Tonkin

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voting proxy to Ross Rader
by Robin Gross June 23, 2005

June 23, 2005

Hello Glenn, I will not be able to participate in the GNSO policy council mtg today because I will be on a flight from Geneva to SFO. As it appears that none of the other NCUC council members are able to participate, I give my voting proxy to Ross Rader. Thank you, Robin -- Robin D. Gross, Attorney @ Law 1192 Haight Street, San Francisco, California 94117 Phone: (415) 462-6440 Fax: (415) 462-6451 Email: robin(a)robingross.com

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RE: GNSO Council teleconf
by Marilyn Cade June 22, 2005

June 22, 2005

Dear Bruce and fellow Councilors I wish to suggest a couple of topics for the agenda under AOB, to discuss how the Council and the gNSO can best advance its perspectives and concerns related to the several items, including StratPlan, Operational Plan/Budget processes. Strategic Plan/Operational Plan: There was extensive outreach in MdP, supported in large measure by leadership of the Council informally, through several of its members, and working with others in the community. The effort on establishing a more iterative and ongoing process of engagement with the SO, and other SOs, has been evolving, but is still unclear at this point, but is critical to the SO's leadership. Kurt will be on our call, I think, and can perhaps update us further on the development of both when the Board is expected to vote to approve the StratPlan, and how the operational plan/budget consultations will take place at the ICANN meeting. Several councilors are following this closely, and I think we should continue to do so, and to encourage other SOs to continue to work with us on the consultative involvement of the SOs and the ALAC. Preparation of gTLD Strategy as an example: I am uncomfortable with the way that this has developed. I have concerns about process, and with some of the content of the report Council has been given. We will discuss the paper itself tomorrow. However, of greater need for focus by the Council, is the role of the gNSO Council in issues that have cross cutting implications. I think we haven't fully examined and reached agreement with ICANN on this overall topic. I believe there is consensus within the Council on this topic, but that discussion is also worthwhile. And, I'd like to discuss if we should request a working session with ICANN's leadership to further explore this general topic. That will enable us to better fulfill our responsibilities overall. On administrative topics: I have been in touch with ICANN on meeting logistics. Some details are still evolving. I will try to reach ICANN later today and have an update on the logistics and meeting arrangements as they have been firmed up to date. I can report on what is known to date on the call tomorrow. However, this has brought an idea to mind regarding meeting planning/scheduling. The fluidity of when Constituency Day is turns out to be a little difficult to manage. However, there are now many many competing requests for meeting slots. We have had WSIS forums taking up a 2-3 hour slot; those should end with Vancover; however, we now have ongoing public forums on the Strategic Plan and Operational Plan to take into account. I suggest that some of the Council/chair meet with other SOs/ALAC to discuss common needs. We could do that before everyone leaves Luxembourg.

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Call for constituency statements on Tasks 1&2 of WHOIS tf Terms of Reference
by GNSO.SECRETARIAT＠GNSO.ICANN.ORG June 22, 2005

June 22, 2005

[To: council[at]gnso.icann.org; liaison6c[at]gnso.icann.org] [To:gnso-dow123[at]gnso.icann.org] Dear Councillors, Just a reminder that the GNSO Constituencies should prepare their constituency statements on: Tasks 1 and 2 from the Terms of Reference for the combined WHOIS Task Force. http://gnso.icann.org/policies/terms-of-reference.html (see below for full text) Constituency statements are required by 21 JULY 2005. http://www.gnso.icann.org/calendar/#july Councillors should forward this request to their constituencies, and may wish to encourage development of these statements during the meetings in Luxembourg. Please take note of the ICANN bylaws detailing the GNSO policy development process which outline the essential elements of a constituency statement. These requirements are included at the bottom of this email. Kind regards, Glen (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." ******************************************************************** The constituency statements should ideally be consistent with the ICANN bylaws - GNSO Policy-Development Process. http://www.icann.org/general/archive-bylaws/bylaws-08apr05.htm#AnnexA Section 7, d. Collection of Information. 1. Constituency Statements. The Representatives will each be responsible for soliciting the position of their constituencies, at a minimum, and other comments as each Representative deems appropriate, regarding the issue under consideration. This position and other comments, as applicable, should be submitted in a formal statement to the task force chair (each, a "Constituency Statement") within thirty-five (35) calendar days after initiation of the PDP. Every Constituency Statement shall include at least the following: (i) If a Supermajority Vote was reached, a clear statement of the constituency's position on the issue; (ii) If a Supermajority Vote was not reached, a clear statement of all positions espoused by constituency members; (iii) A clear statement of how the constituency arrived at its position(s). Specifically, the statement should detail specific constituency meetings, teleconferences, or other means of deliberating an issue, and a list of all members who participated or otherwise submitted their views; (iv) An analysis of how the issue would affect the constituency, including any financial impact on the constituency; and (v) An analysis of the period of time that would likely be necessary to implement the policy. Glen de Saint Géry GNSO Secretariat - ICANN gnso.secretariat[at]gnso.icann.org http://gnso.icann.org

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Call for constituency statements: WHOIS Consensus Policy & Procedure for conflicts with national law
by GNSO.SECRETARIAT＠GNSO.ICANN.ORG June 22, 2005

June 22, 2005

Dear Councillors, Just a reminder that the GNSO Constituencies should prepare their constituency statements on: 1. WHOIS COMBINED TASK FORCE Consensus Policy/Advice Recommendation 2 on conflicts between national privacy laws and registries' or registrars' contractual obligations to ICANN. (see the text below) Constituency statements are required by 21 JULY 2005. http://www.gnso.icann.org/calendar/#july Council members should forward this request to their constituencies, and may wish to encourage development of these statements during the meetings in Luxembourg. Please take note of the ICANN bylaws detailing the GNSO policy development process which outline the essential elements of a constituency statement. These requirements are included at the bottom of this email. Kind regards, Glen WHOIS COMBINED TASK FORCE Policy/Advice Recommendation 2 on conflicts between national privacy laws and registries' or registrars' contractual obligations to ICANN. Preamble: Task Force 2 spent over a year collecting data and working on the conflict between a registrar/registry’s legal obligations under privacy laws and their contractual obligations to ICANN. Its report included the statement: “The Task Force believes that there is an ongoing risk of conflict between a registrar’s or registry’s legal obligations under local privacy laws and their contractual obligations to ICANN. TF2 Report, Section 2.3, http://www.gnso.icann.org/issues/whois-privacy/Whois-tf2-preliminary.html. By vote of the Task Force, now merged, on May 24, 2005, the work of Task Force 2 is hereby divided into a recommendation for “consensus policy” accompanied by “well-developed advice for a procedure.” I. Task Force Policy for WHOIS Conflicts with Privacy Law CONSENSUS POLICY RECOMMENDATION In order to facilitate reconciliation of any conflicts between local/national mandatory privacy laws or regulations and applicable provisions of the ICANN contract regarding the collection, display and distribution of personal data via Whois, ICANN should: 1. Develop and publicly document a procedure for dealing with the situation in which a registrar or registry can credibly demonstrate that it is legally prevented by local/national privacy laws or regulations from fully complying with applicable provisions of its ICANN contract regarding the collection, display and distribution of personal data via WHOIS. 2. Create goals for the procedure which include: a. Ensuring that ICANN staff is informed of a conflict at the earliest appropriate juncture; b. Resolving the conflict, if possible, in a manner conducive to ICANN’s Mission, applicable Core Values and the stability and uniformity of the Whois system; c. Providing a mechanism for the recognition, if appropriate, in circumstances where the conflict cannot be otherwise resolved, of an exception to contractual obligations with regard to collection, display and distribution of personally identifiable data via Whois; and d. Preserving sufficient flexibility for ICANN staff to respond to particular factual situations as they arise. II. Text of Recommended Procedure WELL-DEVELOPED ADVICE ON A PROCEDURE FOR HANDLING WHOIS CONFLICTS WITH PRIVACY LAW Based on extensive research and negotiation among Task Force 2 together with the merged Task Force and ICANN staff, the following procedure for handling the policy recommendation set out in Section I above is set out as a Recommended Step-by-Step Procedure for Resolution of WHOIS Conflicts with Privacy Law. We encourage ICANN staff to use this Recommended Procedure as a starting point for developing the procedure called for in the Consensus Policy Recommendation above. Step One: Notification of Initiation of Action Once receiving notification of an investigation, litigation, regulatory proceeding or other government or civil action that might affect its compliance with the provisions of the RAA or other contractual agreement with ICANN dealing with the collection, display or distribution of personally identifiable data via Whois (“Whois Proceeding”), a Registrar/ Registry must within thirty (30) days provide ICANN’s General Counsel (or other staff member as designated by ICANN) with the following information: • Summary description of the nature and status of the action (e.g., inquiry, investigation, litigation, threat of sanctions, etc.) • Contact information for the responsible official of the registrar/registry for resolving the problem. • Contact information for the responsible territorial government agency or other claimant and a statement from the registrar/registry authorizing ICANN to communicate with those officials or claimants on the matter. If the registrar/registry is prevented by applicable law from granting such authorization, the notification should document this. • The text of the applicable law or regulations upon which the local government or other claimant is basing its action or investigation, if such information has been indicated by the government or other claimant. Meeting the notification requirement permits Registrars/Registries to participate in investigations and respond to court orders, regulations, or enforcement authorities in a manner and course deemed best by their counsel. Depending on the specific circumstances of the Whois Proceeding, the Registrar/Registry may request that ICANN keep all correspondence between the parties confidential pending the outcome of the Whois Proceeding. It is recommended that ICANN respond favorably to such requests to the extent that they can be accommodated with other legal responsibilities and basic principles of transparency applicable to ICANN operations. Step Two: Consultation Unless impractical under the circumstances, we recommend that the ICANN General Counsel, upon receipt and review of the notification and, where appropriate, dialogue with the registrar/registry, consider beginning a process of consultation with the local/national enforcement authorities or other claimant together with the registrar/registry. The goal of the consultation process should be to seek to resolve the problem in a manner that preserves the ability of the registrar/registry to comply with its contractual obligations to the greatest extent possible. If the Whois proceeding ends without requiring any changes and/or the required changes in registrar/registry practice do not, in the opinion of the General Counsel, constitute a deviation from the R.A.A. or other contractual obligation , then the General Counsel and the registrar/registry need to take no further action. If the registrar/registry is required by local law enforcement authorities or a court to make changes in its practices affecting compliance with Whois-related contractual obligations before any consultation process can occur, the registrar/registry shall promptly notify the General Counsel of the changes made and the law/regulation upon which the action was based. The Registrar/Registry may request that ICANN keep all correspondence between the parties confidential pending the outcome of the Whois Proceeding. It is recommended that ICANN respond favorably to such requests to the extent that they can be accommodated with other legal responsibilities and basic principles of transparency applicable to ICANN operations. Step Three: General Counsel analysis and recommendation If the local/national government requires changes (whether before, during or after the consultation process described above) that, in the opinion of the General Counsel, prevent full compliance with contractual WHOIS obligations, ICANN should consider the following alternative to the normal enforcement procedure. Under this alternative, ICANN would refrain, on a provisional basis, from taking enforcement action against the registrar/registry for non-compliance, while the General Counsel prepares a report and recommendation and submits it to the ICANN Board for a decision. Such a report may contain: i. A summary of the law or regulation involved in the conflict; ii. Specification of the part of the registry or registrar’s contractual WHOIS obligations with which full compliance if being prevented; iii. Summary of the consultation process if any under step two; and iv. Recommendation of how the issue should be resolved, which may include whether ICANN should provide an exception for the registrar/registry from one or more identified WHOIS contractual provisions. The report should include a detailed justification of its recommendation, including the anticipated impact on the operational stability, reliability, security, or global interoperability of the Internet's unique identifier systems if the recommendation were to be approved or denied . The registrar/registry should be provided a copy of the report and provided a reasonable opportunity to comment on it to the Board. The Registrar/Registry may request that ICANN keep such report confidential prior to any resolution of the Board. It is recommended that ICANN respond favorably to such requests to the extent that they can be accommodated with other legal responsibilities and basic principles of transparency applicable to ICANN operations. Step Four: Resolution Keeping in the mind the anticipated impact on the operational stability, reliability, security, or global interoperability of the Internet's unique identifier systems, the Board should consider and take appropriate action on the recommendations contained in the General Counsel’s report as soon as practicable. Actions could include, but are not limited to: • Approving or rejecting the report’s recommendations, with or without modifications; • Scheduling a public comment period on the report; or • Referring the report to GNSO for its review and comment by a date certain. Step Five: Public Notice The Board’s resolution of the issue, together with the General Counsel’s report, should ordinarily be made public, along with the reasons for it, and be archived on a public website (along with other related materials) for future research. Prior to release of such information to the public, the Registry/Registrar may request that certain information (including, but not limited to, communications between the Registry/Registrar and ICANN, or other privileged/confidential information) be redacted from the public notice. In the event that such redactions make it difficult to convey to the public the nature of the actions being taken by the Registry/Registrar, the General Counsel should work with the Registry/Registrar on an appropriate notice to the public describing the actions being taken and the justification for such actions. Unless the Board decides otherwise, if the result of its resolution of the issue is that data elements in the registrar’s Whois output will be removed or made less accessible, ICANN should issue an appropriate notice to the public of the resolution and of the reasons for ICANN’s forbearance from enforcement of full compliance with the contractual provision in question. ******************************************************************** The constituency statements should be consistent with the ICANN bylaws detailing the GNSO Policy-Development Process. http://www.icann.org/general/archive-bylaws/bylaws-08apr05.htm#AnnexA "Section 7, d. Collection of Information. 1. Constituency Statements. The Representatives will each be responsible for soliciting the position of their constituencies, at a minimum, and other comments as each Representative deems appropriate, regarding the issue under consideration. This position and other comments, as applicable, should be submitted in a formal statement to the task force chair (each, a "Constituency Statement") within thirty-five (35) calendar days after initiation of the PDP. Every Constituency Statement shall include at least the following: (i) If a Supermajority Vote was reached, a clear statement of the constituency's position on the issue; (ii) If a Supermajority Vote was not reached, a clear statement of all positions espoused by constituency members; (iii) A clear statement of how the constituency arrived at its position(s). Specifically, the statement should detail specific constituency meetings, teleconferences, or other means of deliberating an issue, and a list of all members who participated or otherwise submitted their views; (iv) An analysis of how the issue would affect the constituency, including any financial impact on the constituency; and (v) An analysis of the period of time that would likely be necessary to implement the policy." Glen de Saint Géry GNSO Secretariat - ICANN gnso.secretariat[at]gnso.icann.org http://gnso.icann.org

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Whois Notice and Disclosure Proposal
by Ross Rader June 22, 2005

June 22, 2005

-----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 All, After discussion of the current Whois proposal (Notice and Disclosure) I would like to present an amendment to the current recommendations for discussion during tomorrow's Council call. The Registrar Constituency representatives are fully prepared to support an amended version of the proposal that allows registrars flexibility in how they disclose the WHOIS requirements, based on common practice across Internet ecommerce transactions, the expectations of their customers, and the national laws within which different registrars operate. In order to accomplish this, changes to the current recommendations are required. These changes are: - - removal of second sentence from the first recommendation that prevents a link to an external web page - - removal of the third recommendation that requires separate acknowledgement The amended recommendations would read as follows: 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. 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. - -- Regards, -rwr "Every contrivance of man, every tool, every instrument, every utensil, every article designed for use, of each and every kind, evolved from very simple beginnings." - Robert Collier Got Blog? http://www.blogware.com My Blogware: http://www.byte.org -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.2.3-nr1 (Windows XP) iD8DBQFCuXU46sL06XjirooRAhtpAJ4tHABxXwjVYhBiNl8gmQvqghKHNwCfZSPI 5+iDEFDLL814IY6f23xYPFM= =6v+c -----END PGP SIGNATURE-----

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times for TF meeting in Luxembourg
by Marilyn Cade June 22, 2005

June 22, 2005

Paul, I am responding because I'm working on this for the Council/and doing logistics coordination. We mentioned this on a recent TF call, but it wasn't discussed on the last call because I wasn't on the call. Here's the update. It is the intent to have a meeting of the Council and TF in Luxembourg. I have left Jordyn a message or two about possible times. Sunday isn't available, if you recall. The TF has been invited, via the Council to join the Council in attending the GAC closed meeting on Sunday,from 2-6. Thus, no, this working session between the Council and the TF cannot happen on Sunday. There is probably need for two meetings: one: preparatory for the gnso public forum which includes WHOIS as a major topic. Two: the working session between Council and TF: I have proposed Thursday afternoon to Bruce and Jordyn, and the ICANN staff in order to get a suitable meeting room. This isn't the only working session being scheduled for Thursday. Recognizing that the Registrars have extensive two days of meetings, we still have to work around others competing meetings. :-) I will give Jordyn for the TF possible times for a preparatory meeting before the Wednesday public forum. It is possible you may have to do that early one morning, or later one afternoon. It is also possible that you might chose to do that during the GAC open forum on Tuesday or just after it. -------- Original Message -------- Subject: whois TF Date: Tue, 21 Jun 2005 15:18:41 -0700 From: Paul Stahura <stahura(a)enom.com> To: GNSO.SECRETARIAT(a)GNSO.ICANN.ORG <gnso.secretariat(a)gnso.icann.org> CC: <Bruce.Tonkin(a)melbourneit.com.au>, "Jordyn A. Buchanan" <jordyn(a)confusion.net> Bruce and Jordyn, Are we going to have a whois TF meeting in LUX? If so what day? I don't want to have to change my plans around like last time :>) Hopefully it wont be scheduled for Sunday again. How about any day other than the days of the registrar's meeting? Paul -- Glen de Saint Géry ICANN glen[at]icann.org http://www.icann.org

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