Hello All, I have updated the consensus recommendation proposal that I posted on 25 June 2005 (following a GNSO Council meeting) based on feedback received from members of the IP constituency and registrars. (1) I have added an explicit reference to RAA Clause 3.7.7.5 as requested by Niklas Lagergren in the GNSO Council meeting in Luxembourg (at the end of the (I) Background). (2) In the (II) Problem statement (second paragraph after ICANN mission and values) - I have made the language a bit more neutral regarding the expectations of registrants regarding public access to information - without implying that registrants at some locations may behave differently from those at other locations with different laws. I have also improved the wording of the following paragraph to make it clearer that a registrant may provide a range of information to a registrar, but that the registrant should be clear as to which pieces of data will be made public. (3) In (III) the Proposed Consensus Recommendation, I have clarified that ICANN will provide information on best practices for making the WHOIS requirements clear in the registration agreement. Regards, Bruce Tonkin (I) Background =============== The obligations of a registrar are governed by the Registrar Accreditation Agreement (RAA) (http://www.icann.org/registrars/ra-agreement-17may01.htm) and ICANN consensus policies (http://www.icann.org/general/consensus-policies.htm). The obligations of a Registered Name Holder (Registrant) is governed by an electronic or paper registration agreement with the Registrar. Each Registrar's agreement is different, and Registered Name Holders (or their agents) should review each agreement when making their choice of Registrar. A registrar is obligated by the RAA to require a Registered Name Holder to agree to provide to the registrar accurate and reliable contact details and promptly correct and update them during the term of the Registered Name registration (clause 3.7.7.1 of the RAA). A registrar is obligated by the RAA to, at its expense, provide an interactive web page and a port 43 Whois service providing free public query-based access to up-to-date (i.e., updated at least daily) data concerning all active Registered Names sponsored by the Registrar (clause 3.3.1 of the RAA). In addition a Registrar must provide third-party bulk access to the data (clause 3.3.6 of the RAA). A registrar is obligated by the RAA (clause 3.7.7.4) to provide notice in the registration agreement with the Registered Name Holder stating: (a) The purposes for which any Personal Data collected from the applicant are intended; (b) The intended recipients or categories of recipients of the data (including the Registry Operator and others who will receive the data from Registry Operator); (c) Which data are obligatory and which data, if any, are voluntary; and (d) How the Registered Name Holder or data subject can access and, if necessary, rectify the data held about them. A registrar is also obligated by the RAA (clause 3.7.7.5) to obtain consent from the registrant to the data processing described above (clause 3.7.7.4). (II) Problem statement with respect to ICANN's mission and Core Values =====================================================================

From Article 1, Section 1 of the ICANN Bylaws (http://www.icann.org/general/bylaws.htm#I ):

"The mission of The Internet Corporation for Assigned Names and Numbers ("ICANN") is to coordinate, at the overall level, the global Internet's systems of unique identifiers, and in particular to ensure the stable and secure operation of the Internet's unique identifier systems. In particular, ICANN: 1. Coordinates the allocation and assignment of the three sets of unique identifiers for the Internet, which are a. Domain names (forming a system referred to as "DNS"); b. Internet protocol ("IP") addresses and autonomous system ("AS") numbers; and c. Protocol port and parameter numbers. 2. Coordinates the operation and evolution of the DNS root name server system. 3. Coordinates policy development reasonably and appropriately related to these technical functions." In addition one of ICANN's core values is: "Preserving and enhancing the operational stability, reliability, security, and global interoperability of the Internet." (Core value 1, from Article 1, section 2) The problem with the current system is that although registrars are required to include information in the registration agreement on the purposes for which data is collected and the intended recipients of the data, the information is often hard to find in long agreements, and often the information does not explicitly explain that personal data is freely available to third parties via the WHOIS service (for example sometimes a registrar makes a general statement such as that the information is provided to third parties in accordance with ICANN policies). Some registrants would not expect their personal data to be used for anything other than the registration and renewal of a domain name, and the authentication of an entity claiming to be the registrant. Where data is made public, registrants may expect to be able to opt-out of public display of the information. The lack of knowledge amongst Registered Name Holders can lead to security problems for domain names. Registered Name Holders may provide Personal information to companies that can be used by those companies for authentication (for example home billing address), and separately provide public information (such as post office box and business telephone number, typically via websites, whitepages and yellow pages services) suitable for third parties to contact the Registered Name Holders. Without an understanding of which information will be made public via the WHOIS service, a Registered Name Holder may be inadvertently releasing information to the public normally used for authentication. If a Registered Name Holder inadvertently provides information to a registrar for public display, this may assist domain name hijackers (and those using stolen credit cards) to pretend to be the Registered Name Holder. An improved understanding by Registered Name Holders of the purpose of WHOIS and the data elements displayed in the WHOIS service may improve the security and stability of the DNS. Thus the problem falls under the ICANN mission, and in particular the first core value. (III) Proposed Consensus Recommendation ======================================= (1) Registrars must provide notice in the registration agreement with the Registered Name Holder that is easy to find, clear, and conspicuous within the registration agreement stating: (a) The purposes of the WHOIS service, which consists of the provision of an interactive web page and a port 43 Whois service providing free public query-based access to up-to-date (i.e., updated at least daily) data concerning all active Registered Names sponsored by the Registrar. In addition the WHOIS service includes the provision of third-party bulk access to the data. (b) The purposes of the Registered Name Holder, technical, and administrative contacts (c) Which of the contact data in (b) will be made public via the WHOIS service in (a). (2) ICANN must provide on its website information on industry best practice to meet the obligation in (1) above. The proposed recommendation will help ensure that Registered Name Holders are more fully informed about registrar data handling practices and obligations, and that they provide current and accurate contact information that is appropriate for public access and sufficient for third parties to contact them in accordance with the purposes of the WHOIS service. The purposes will be refined as part of the current WHOIS task force work. Information (which may include Personal Data) that can be used for authentication and billing purposes may be separately provided to registrars.