Forgive a personal opinion here, but I would imagine on the "portal" model which I think we're proposing that the underlying data would be subject to whatever rate limits are in place with the registrar of record. You're just going in to the Port 43, grabbing the data, and displaying it in an easy to understand way. Tons of sites already do this. They may place their own rate limits there - to prevent WHOIS abuse, and spammer harvesting type activity. I don't see this recommendation as requiring a wholesale rethink of current policies. On 8 February 2012 18:31, Seth M Reiss <seth.reiss@lex-ip.com> wrote:

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.****

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Seth ****

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*From:* rt4-whois-bounces@icann.org [mailto:rt4-whois-bounces@icann.org] *On Behalf Of *Kathy Kleiman *Sent:* Wednesday, February 08, 2012 7:57 AM

*To:* Lutz Donnerhacke *Cc:* rt4-whois@icann.org *Subject:* Re: [Rt4-whois] Questions on Recommendation 17****

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Lutz wrote:

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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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