This response is for a targeted question,Avri, specific to language that I used in the BC recommendation regarding how a notice should be presented. There is now a different question. Related, but different. In my view, the TF has more work to do to agree on whether they have a question, and then define a question -- that is well defined enough to take up Council's time and then legal counsel's time. I think that the TF has to be focused itself on whether there is agreement on what a question(s) is that would address the present debate/question that has been raised by one member, and now concurred with by a few more, with to hers not in agreement.Thus, the TF needs to do its work. They will undoubtedly decide if they are bringing a request for legal guidance into the Council shortly. Regards, Marilyn -----Original Message----- From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Avri Doria Sent: Thursday, August 11, 2005 11:28 PM To: council@gnso.icann.org Subject: Re: [council] Response from Deputy General Counsel on "clear and conspicuous" Hi, I don't understand this response. Or rather I see that they approve the phrase but no indication that it does not in any way limit a registrant privacy rights. Since I think it is important that privacy rights not be further eroded by any new WHOIS policies, I do agree that we should have a complete understanding of the consequences of the wording. thanks a. On 11 aug 2005, at 21.35, Bruce Tonkin wrote:
-----Original Message----- From: Daniel Halloran [mailto:daniel.halloran@icann.org] Sent: Friday, 12 August 2005 4:02 AM To: Bruce Tonkin Cc: Whois TF mailing list Subject: Re: [gnso-dow123] Note to council on Notice recommendation
Bruce,
As we discussed, this will confirm that John Jeffrey and I have reviewed and approved the use of the phrase "clear and conspicuous" in the "Updated consensus recommendation on improving notification to Registered Name Holders of the public access to contact data via the WHOIS service" <http://www.gnso.icann.org/mailing-lists/archives/ council/msg01159.html>.
We'll stand by to review any possible questions the task force might develop on the "waiver" issue discussed below.
I hope this will be helpful. Please let me know if I can be of any other assistance.
Best regards, Daniel Halloran Deputy General Counsel ICANN
On Aug 9, 2005, at 18:44 PM, Bruce Tonkin wrote:
Hello Jordyn,
I did receive a call from Dan Halloran of the ICANN General Counsel's office with respect to the WHOIS recommendation. I expect a response from him shortly on the "clear and conspicuous" notice terminology.
Is it possible for the task force to frame a specific question on the concern about the impact of the proposed recommendation on privacy rights? I can then send this to the General Counsel's office for advice.
Perhaps a member of the task force can set out the reasons for the concern on the WHOIS mailing list.
The intent of the current recommendation is to better inform registrants of a current obligation.
As I understand the current obligation, registrars are required to publish some information via the WHOIS service (clause 3.3 of the RAA), registrars are required to provide notice to registrants of the purposes for which the data is intended and the internet recipients of
that data (clause 3.7.7.4 of the RAA), and registrars are required to get registrants to agree to this (clause 3.7.7.5 of the RAA). If the recommendation waives any existing rights of the registrant then this needs to be considered carefully.
With reference to: http://www.icann.org/registrars/ra-agreement-17may01.htm#3
Note that with respect to clause 3.7.7.4 - "shall provide notice", Dan did inform me that having this information in a privacy policy, or
sent via email, or displayed at the time of registration, would meet that requirement. It is not currently necessary to include the "notice" within the terms and conditions. Registrars have significant flexibility on how they choose to meet this obligation in the RAA. It seems prudent not to actually interfere with this flexibility with respect to clause 3.7.7.4. Thus the new WHOIS recommendation should be read in the context of a separate clause within 3.7.7.
Regards, Bruce Tonkin Chair, GNSO
On 09/08/2005 6:29 PM Jordyn A. Buchanan noted that;
As we discussed on today's call, a concern has been raised that the recommendation on Notice to registrants, currently before the Council, may be viewed as some kind of waiver of
registrant's privacy rights.
This was not the intent of the recommendation, and not
something that
we had originally considered within the task force. As a
result, we
agreed on today's call that I would send a note to Bruce and the Council requesting further consideration of this issue.
Here's the request I propose to send. Please let me know
(quickly)
if anyone believes this doesn't correctly reflect our
agreement from
the call today:
Dear Bruce:
In discussions of the Whois TF this week, a concern was
raised that
the current proposal relating to improving notice to registrants regarding the use of their contact details in the Whois
system may be
viewed as a waiver of registrants privacy rights. It was not the intent of the task force that the recommendation act as any
sort of
waiver, but this was not an issue that we considered during
the work of the task force.
We do believe that this is an important issue, however,
and believe
that it would be premature for the Council to adopt the policy recommendations without considering it. As a result, I am
writing to
request that the Council either:
a) Refer the recommendation back to the Task Force for further consideration of this specific issue; alternatively, the
Council may
want to consider this specific issue itself, or
b) Delay adoption of this recommendation until such time as
the full
range of issues currently being considered by the task force have resulted in a broader set of recommendations that may render this issue moot.
Thanks,
Jordyn A. Buchanan Chair, Whois TF