[ga] Michael Palage's Proposed Whois Task Force Recommendations

["Michael D. Palage" <michael@palage.com>]

On October 23rd I submitted my personal comments to the Whois Task Force,
see
http://www.dnso.org/dnso/dnsocomments/comments-whois/Arc01/msg00012.html.
Listed below are my personal recommendations for the Whois Task Force based
upon my earlier comments.

Any comments or suggestions would be greatly appreciated.

Best regards,

Michael D. Palage



Recommendations Preamble

The current Whois system fails to adequately meet the needs and concerns of
governments, intellectual property owners, domain name registration
authorities, as well as consumer and privacy advocacy groups. Although one
can attempt to solve certain aspects of the current problems in a piecemeal
fashion, only a comprehensive bottoms-up review and overhaul is likely to
succeed.

ICANN’s role in this and other potential global policy issues should be to
identify and bring to the table those individuals and parties potentially
impacted by its processes, particularly those in developing countries that
may not have their voices and concerns heard in the current structure, as
well as registration authorities that are signatories to bi-lateral
contracts with ICANN. ICANN’s role is not, nor should it be, to artificially
manufacture consensus under the auspices of Task Forces.

The ICANN Names Council Whois Task Force (Task Force) should be commended
for its pioneering efforts in starting a constructive dialogue on some of
the complex issues surrounding Whois.  However, the Task Force’s failure to
address certain fundamental issues directly bears upon the validity of the
Task Force’s ultimate recommendations. In light of these shortcomings, the
following recommendations are submitted.

Recommendation 1

Whereas, the Task Force has endeavored over the last twenty (20) months to
undertake an analysis of various Whois issues;

Whereas, the Task Force has published an interim report dated October 14,
2002 in which four (4) interim recommendations were put forth for public
comment;

Whereas, despite the best efforts undertaken by the Task Force volunteer
members, there are certain fundamental aspects that were not properly
addressed and which directly bear upon the validity of the Task Force’s
recommendations, including but not limited to, applicability of natural and
local law and their impact on registration authorities that are signatories
to bi-lateral contracts with ICANN; new market conditions (.NAME); evolving
technical standards (CRISP); international domain name considerations; and
ICANN’s Evolution and Reform  Committee calling for more input from the
public sector (governments).

Therefore, it is resolved that the Names Council:

Extend it heartfelt appreciation to the members of the Task Force for their
diligent and tireless efforts to date;

Immediately dissolve the Task Force;

Reject implementing the proposed recommendation at this time until further
review can be conducted incorporating those data points not properly
considered by the Task Force;

Respectfully submit to the ICANN Board that it create a Blue Ribbon Global
Whois Panel (Panel) to ensure that the viewpoints and concerns of all
Internet stakeholders are addressed, with such Panel ideally being composed
of the following representatives:

GAC Representative: This representative shall provide the Panel with the
various viewpoints (consensus if possible) regarding governmental positions
regarding access and accuracy of Whois data (i.e. data privacy, law
enforcement, consumer protection, etc.)

ITU Representative: Although the ITU is currently a participating member in
the GAC, their experience in two areas would be of particular value to the
Panel: (i) in the area of soliciting and representing the viewpoints of
emerging countries and economies that may not have a representative voice in
the current process and (ii) in the area of promoting the role of ITU Member
States in the internationalization of domain names and addresses of their
respective languages.

ICANN Registry Representative: This representative would be tasked with
soliciting input from all ICANN accredited registry operators to provide the
Panel with firsthand operational considerations.

ICANN Registrar Representative: This representative would be tasked with
soliciting input from all ICANN accredited registrars to provide the Panel
with a better understanding of the legal and technical dynamics of the
domain name registration marketplace.

ccTLD Registry Operator/Administrator: This representative would be tasked
with soliciting input from the ccTLD registry operator/administrator
regarding Whois policies and national laws.

Civil Libertarian: This representative would be tasked with representing the
interests of individual domain name registrants, specifically with regard to
a wide range of privacy issues.

IETF/IAB Technical Representative: This representative would be able to
provide the Panel with insight regarding standards efforts currently
underway in connection with Whois (CRISP) and international domain names.

Multi-National Business Representative: This individual would be tasked with
soliciting input from large multi-national businesses regarding concerns
about diverse and divergent Whois practices and the importance of Whois in
law enforcement and intellectual property rights.

SME Business Representative: This representative would be required to
solicit and provide the viewpoint of small and medium enterprises regarding
Whois considerations.

Respectfully submit to the ICANN Board that ICANN extend invitations to
potential Panel participants to prevent any partisan politics that may exist
within the various ICANN constituencies. In the alternative, ICANN should
also consider outsourcing the coordination of this Panel to a neutral third
party organization with expertise in this subject matter similar to the work
undertaken by the World Intellectual Property Organization in connection
with the initial draft of the Uniform Dispute Resolution Policy (UDRP). One
potential neutral third party with expertise in this area would be the
Organization for Economic Co-operation and Development (OECD).


Recommendation 2

Whereas, the Task Force has endeavored over the last twenty (20) months to
undertake an analysis of various Whois issues;

Whereas, the Task Force has published an interim report dated October 14,
2002 in which four (4) interim recommendation were put forth for public
comment;

Whereas, despite the best efforts undertaken by the Task Force volunteer
members, there are certain fundamental aspects that were not properly
addressed and which directly bear upon the validity of the Task Force’s
recommendations, including but not limited to, applicability of natural and
local law and their impact on registration authorities that are signatories
to bi-lateral contracts with ICANN; new market conditions (.NAME); evolving
technical standards (CRISP); international domain name considerations; and
ICANN Evolution and Reform  Committee calling for more input from the public
sector.
Whereas, notwithstanding the aforementioned shortcoming of the Task Force’s
efforts, there were several concepts would could be implemented in the short
term that would increase the accuracy of the Whois data.

Therefore, it is resolved that the Names Council respectfully request that
the ICANN Board take the following actions:

ICANN approve a standardize Whois Accuracy Inquiry Notice (WAIN) prepared by
ICANN accredited registrars in consultation with domain name representatives
regarding inquires about false or inaccurate Whois data;

ICANN assist in translating the WAIN into as many languages as possible;

ICANN require that registrars shall send the standardized WAIN to their
domain name registrant after receiving a notification of potentially false
or inaccurate Whois data from ICANN’s Internic.net whois portal (or
equivalent);

ICANN accredited registrars shall be required to send any WAIN in the
language(s) of the registration agreement, along with links to translations
of the WAIN in other languages;

The current 15 day time frame for registrants to respond to inquiries
regarding the accuracy of the Whois data shall be extended to 30 days to
provide the registrant and registrar adequate time to investigate and
respond to inquiries;

Registrars shall be required to comply with ICANN instructions regarding the
docketing software maintained in connection with the Internic.net whois
portal (or equivalent);

Registrars that are unable to verify the accuracy of the Whois data or fail
to receive instructions from the registrant within thirty (30) days shall
place the domain name of hold (i.e. the name is removed from the zone file
and it will not resolve) indefinitely;

Registrar shall not remove the domain name from hold status or renew the
domain name until registrant has provided documented proof which the
registrar shall be required to retain;

In the situation where the registrar receives a secondary inquiry regarding
the accuracy of Whois data for a specific domain name, the Registrar shall
require documented proof from the domain name registrant within the 30 day
time frame or have the domain name places on indefinite hold in accordance
with the process described above;

ICANN shall immediately modify the Internic.net Whois portal to require
third parties submitting Whois accuracy inquiries to acknowledge that the
submission is not intended to interfere with the lawful operations of the
domain name registrant or registrar;

ICANN shall immediately modify the Internic.net Whois portal to require that
third parties provide additional contact information to allow the domain
name registrant or registrar to initiate legal action against the third
party if such submission was designed to tortuously interfere with their
legal activity.

ICANN’s General Counsel and Staff are instructed to move forward with
implementation of the above referenced recommendations as follows:

Option 1:

A bi-lateral amendment to the ICANN Registrar Accreditation Agreement (RAA)
executed by ICANN and every accredited registrar. However, if one or more
registrars fail to execute this bi-lateral amendment proceed to Option 2
below.

Option 2:

Establish a dialog with the registrar community to see if consensus exists
among the accredited registrars about adopting the above referenced
recommendations within the context of a Code of Conduct. If there is
consensus among the registrars about adopting this proposal as a Code of
Conduct, this Code of Conduct would then be unilaterally enforced against
all ICANN accredited registrars in accordance with the terms of the RAA. If
the registrars refuse or are unable to adopt a Code of Conduct, then proceed
to Option 3 below.

Option 3:

If ICANN is unable to implement the above referenced recommendations under
either Option 1 or 2, ICANN General Counsel and Staff are instructed to
enter into individual bi-lateral amendments to the RAA with registrars
incorporating these procedures.

For those registrars that execute the bi-lateral amendment to the RAA, ICANN
will provide that domain name registrar and its registrants with an extend
time window (30 days total) to investigate and respond to Whois data
accuracy inquires. ICANN also agrees to not publicly disclose any
statistical information on that registrar’s compliance with Internic,net
Whois portal inquiries.

For those registrars that refuse not to enter into a bi-lateral amendment to
the RAA, ICANN will continue to enforce the shorter 15 notice and deletion
policy instead of the more flexible 30 day notice and hold policy.
Additionally, ICANN will publicly disclose statistical information on that
registrars’ compliance with Internic.net Whois portal inquiries.












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