Current registrar obligation with respect to WHOIS notification and its shortfall
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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Bruce Tonkin