WHOIS TASK FORCE
November 20, 2002
Marilyn Cade – Task force Co-Chair
Thomas Roessler – GA
Kristy McKee – GA
Abel Wisman - GA
Steve Metalitz – IPC
Laurence Djolakian – IPC, Names Council
Karen Elizaga – GNR – gTLD Registry
Francis Coleman – GNR (to replace Karen Elizaga on the WHOIS TF)
Glen de St. Gery – DNSO Secretariat
OPERATOR: Conference ID, B like boy, M like Marilyn, C like Cade, 3955, host name Marilyn Cade.
Please excuse the interruption; I have added an analog recorder to your conference.
MARILYN CADE: Thank you operator.
OPERATOR: And I am unable to reach Mr. Harris. There is a busy signal.
CADE: OK, I will try Mr. Harris.
OPERATOR: And Mr. Abel Wisman (ph) has a answering device on his phone. Would you like me to leave word or will he be joining you at a later date?
THOMAS: Marilyn, can you give me Abel’s phone number? I will send him a short message through GM 3SM (ph) with the call details.
CADE: Abel’s phone number, hold on ...
THOMAS: The mobile phone.
OPERATOR: 011, is that the one I have?
OPERATOR: ... 44780 ...
THOMAS: 780, yes.
OPERATOR: ... 316 ...
OPERATOR: ... 3006.
THOMAS: 3006. Plus (ph) 447803163006, right?
THOMAS: Thank you.
OPERATOR: You’re welcome.
OPERATOR: Yes, ma’am?
CADE: And this will be a transcription, right?
OPERATOR: Yes, ma’am.
CADE: Thank you.
OPERATOR: You’re welcome.
GLYNN (ph): Marilyn?
GLEN (ph): Hi, Marilyn. It’s GLEN(ph), I’ve just joined.
CADE: Hi, Glynn (ph).
KAREN: It’s Karen, too.
CADE: Hi, Karen.
KAREN: Hi, how are you?
CADE: And Fran’s going to be joining us Karen?
KAREN: He will be, yes.
GLYNN (ph): Who will be joining us, Karen?
KAREN: Fran Coleman who will—who will be taking my place at GNR and also, hopefully, at—in the taskforce.
GLEN (ph): Oh. So, Karen, you are going?
GLEN (ph): Oh.
KAREN: I’m still going to be—I’m still working with GNR, but on a different ...
GLEN (ph): I see.
KAREN: ... consultancy basis.
GLEN (ph): Good.
CADE: And so, Glen, I if we can add Fran in ...
GLEN (ph): Yes, certainly. Fran, what is your e-mail address, please?
KAREN: He’s not on, yet.
KAREN: Yes. You know what I’ll do—Glen (ph), what’s your—what’s the best e-mail address to get you at because this ...
KAREN: OK. I’ll get him to e-mail you his alternate (ph) contact ...
GLYNN (ph): That would be wonderful. Thanks, Karen. And I’ll get him on the list as soon as ...
CADE: Karen I know the rest of the people joining us, but what I really want to do today is walk through your exceptions (ph).
CADE: And thank you so much. But, you know, I really am of the opinion that we have to be able to get to some consensus recommendations on this section.
CADE: And you went -- the press (ph) call, right?
CADE: Well, I’m—we’re going to have to push—we’re going to have to push to do that, but we have to do it.
CADE: Because it’s just not—and then we need to get through what are the other work items for those things. And my guidance from the Names Council Chair (ph) is he wants us to deliver some product.
CADE: And my message to everybody is he’s the Names Council Chair. The taskforces work for the Names Council and I think we’ve been given feedback from our boss, so to speak, as well as from the community, and I think we’re—we can do this. It’s—and we’re pretty close on the work that we did on Monday and so if we can do the same kind of project—product on this and where we—if we can’t show that we have consensus, then I want us to see if we can document that a majority of responses indicate the following and then think about what the work would have to be to get to consensus. But my view on this is really, we also are going to have to take a different approach to how we format the policy recommendation and then have a narrative below it and I’m thinking about a format that would—I’m trying to think this through in my mind, but I’m thinking about a format that would have policy recommendation in a box. And then underneath it, it would have the dialog that consensus exists, et cetera, and then we would—and that would be like, part of the executive summary.
CADE: And then—so you could read the executive summary and you could say, “Oh, so there were four issues they worked on, they decided they could get the consensus and make policy recommendations on two of the four, and in (INAUDIBLE) the two of the four, they got the policy recommendations on a. and b. but not c.”—I’m making this up—“not c. and d.”, right? And then it sort of stands alone and then you go into the rest of the detail in the body of the report.
CADE: And then that would—that means we would get to—we need to get to very crisp, high level policy statements and that is not—we have to think about is that language conveying, as well. And I know that’s really hard for us to get to.
Other people have joined us?
STEVE: This is ...
LAURENCE DJOLAKIAN (ph): ... joined.
CADE: Hi, Laurence Djolakian (ph).
STEVE: And this is Steve ...
CADE: Hi, Steve.
KRISTY MCKEE (ph): And this is Kristy McKee (ph).
CADE: Hey, Kristy. And Karen. And I need to try Tony because the operator’s getting a busy. He just left us, Glen (ph), right? So I will dig around here and ...
CADE: ... find his number and see if I can try him again and then we will go ahead and get started with walking through Kristy’s—excuse me, Karen’s document. Sorry Kristy.
KRISTY MCKEE (ph): No problem.
CADE: tell you there for a moment. Hi, who just joined us? Thomas was with us and went off to try to find Abel.
THOMAS: Sorry? I’m still here.
CADE: Oh, good.
THOMAS: I do …
THOMAS: ... hopefully his mobile if his number was right.
THOMAS: somewhere. Oh.
GLYNN (ph): That’s me, sorry.
THOMAS: Anyone being replaced by a robot.
CADE: OK. Guys, what I need to do is get us started and walking through Karen’s section. We are going to—real quickly, Karen, would you just—because we’re being transcribed, would you just explain that Fran will participate in the meantime?
KAREN: Sure. Fran will be participating with me on the taskforce calls but I will continue to participate. I’m leaving my full-time role at GNR on Friday the 29th, and there’s a chance that I will participate on the taskforce sort of following that, but I thought it would be a good idea to get Fran in the loop while I was still active. And the registry constituency also supports him kind of replacing me also on the taskforce.
CADE: So we’ve got continuity. I really appreciate that. I’m going to step up and try to find Tony. Are you—if we could start walking through interim 4.0, which everyone should have.
KAREN: Just a question. My e-mail’s being a little bit slow. Has everyone gotten the revised draft that I sent out about an hour ago?
UNIDENTIFIED PARTICIPANT: To where?
KAREN: To the—it was to the individual list rather than the Whois list.
UNIDENTIFIED PARTICIPANT: No, ma’am, I have not.
MARILYN: Would you go ahead and repost it to the Whois list ...
CADE: ... and I will dial Tony.
THOMAS: The one with new further recommendations, right? Because you want to reply to? Karen?
THOMAS: Which document you’re talking about.
KAREN: What’s ...
THOMAS: It’s Amsworth (ph) is a required (INAUDIBLE) if minimum standard is implemented by (INAUDIBLE) facts or such policy as (INAUDIBLE). It’s one of the new parts. Is that the right document?
KAREN: Yes, yes, that’s it.
THOMAS: OK, thank you.
KAREN: OK, I’ve just re-posted it to the Whois list.
SARAH ANDREWS: Good morning.
ANDREWS: Hi, this is Sarah.
KAREN: Good morning, Sarah.
CADE: Sorry, who just joined?
KAREN: I think that was Sarah Andrews who just joined.
ANDREWS: Yes, I just joined.
UNIDENTIFIED PARTICIPANT: Sarah, we’re waiting for a file to come from Karen to mailbox.
CADE: I think that Tony’s not going to be able to join us. We will—I know we’re waiting on this file from Karen. Let me do a couple of—just checking here in the meantime. Laurence Djolakian (ph), are you going to be at the Amsterdam meeting?
LAURENCE DJOLAKIAN (ph): I will try to be there.
CADE: Steve, do you know who else might be there? I know J. Scott’s not going to be there.
STEVE: I don’t know of anybody else who’s going to be there from the IP side (ph).
CADE: OK. There is likely to be a discussion, I hope there’s going to be a discussion that I’m trying to set up with Papa Pablo to ask to discuss the European data privacy directive and the forthcoming interpretation of the telecom -- communication directive. Haven’t got it confirmed yet but I’m hoping to do that and just kind of on an almost a catch as catch can, depending on his availability. Because the Commission’s picking up the (INAUDIBLE) secretariat, it’s not clear you’ll have time there, but it might work. So I just—I think, Abel, you’re going to be there?
Do I have Abel yet? No? Thomas?
THOMAS: From all conference calls I attempt before Amsterdam so that’s likely (INAUDIBLE) and I’ll actually be able to go there. I don’t know yet.
THOMAS: Actually I’m wondering if you’re going to establish something with the European Commission. Is there any chance we can get an opportunity for that ...
CADE: It’s to be, it’s—yes, this is not going to be a substantive discussion, it’s going to be an effort to plan for a substantive discussion.
CADE: I just wanted to include whoever was going to be there in my little scheduling endeavor. I agree with you, I don’t want to do a substantive discussion without the taskforce there. But I want to—I’ve been trying to encourage him to work on scheduling.
CADE: And it will take more people by the way. There’s several people back at the EC Ranch that we’d want to join us.
LAURENCE DJOLAKIAN (ph): You know Whois going there from the European Commission apart from Papa Pablo?
CADE: I do. I don’t have my notes in front of me. It’s a couple of more people. Let me see if I can wrap that up and e-mail it to you.
LAURENCE DJOLAKIAN (ph): Yes. OK, alright.
CADE: OK. Did anyone else join us? Do we have Karen’s file yet?
UNIDENTIFIED PARTICIPANT: No.
CADE: OK. But it’s posted to the list, right?
KAREN: It’s posted both to the list and individually. I think—Thomas, did you get it earlier today?
THOMAS: I got it about half an hour before the call.
KAREN: Will you send it to the list, Thomas?
THOMAS: I’m offline.
CADE: I will. Hold on.
KAREN: I know our mail server’s OK and we just ...
THOMAS: I will be ...
KAREN: Did anyone else ...
THOMAS: I’m off for a short moment.
CADE: Yes, well, I got it. The traffic between the …
STEVE: No, I got it. And I just forwarded it to Kristy.
KRISTY MCKEE (ph): Thank you.
STEVE: Did anybody else on the call not get it?
KRISTY MCKEE (ph): Thanks, Steve.
STEVE: You got it now?
CADE: Yes, and then we’ve got a lot of input on the revised—the previous revised document, which I'm very aware of that we have. And we want to figure out how to address that because we’ve gotten a good dialog in several places. There’s some—we’ve also recently gotten input from Elana Broitman (ph) that I have not had a complete chance to read—I was more effective when I had more reading time, here—but I started scanning it. I’ve asked a couple of other registrars who tell me they have comments to work against her document—that is, give us the topics, and realize that we are really running out of time to be taking signifICANNt further input. So I’m—I have no idea. I also did ask for feedback on whether or not there was going to be input from registrar constituency based on the fact that there was a ballot floating around. I received—I don’t know if Ken has joined us.
RAM MOHAN (ph): This is Ram Mohan (ph) who just joined.
CADE: Hi, Ram. So I don’t have current—the feedback I have right now is, it’s unclear whether or not we will get anything from the registrar constituency as a whole because it’s not clear what the status of the ballot is. But I need to go back to the adman, or the exec con, and ask them what the deal is, on whether we’re going to get something or not. We’ve not been formally notified at the taskforce, but of course, we are aware from feedback from our representatives from that constituency that they ballot out there. We can’t really take it as input until it is received, but if it is received after a reasonable time—and we’re getting well into the past or reasonable time—I’m not sure how we would be able to incorporate or to address it other than to include it in note, “Continued effort made to received input”, the date that we received it, et cetera. It would probably have to be taken into account literally after we post our final report.
We have Laurence Djolakian (ph), Kristy, Karen, RAM, Thomas and Steve, right?
ANDREWS: I’m Sarah.
CADE: And Sara. Great Sarah. I have apologies from Tony who is in a board meeting and not able to join us and has asked that we go ahead.
KAREN ELIZAGA: Marilyn, Fran has also joined us.
CADE: Great. Welcome, Fran.
FRAN COLEMAN: Thank you.
CADE: Fran is a well-seasoned participant, having now attended his first ICANN (ph) meeting in Shanghai and we’re throwing you into the deep end of the ocean here in a taskforce moving at full speed, Fran, but welcome.
COLEMAN: Thank you very much. Nice to be part of that.
CADE: Karen, I’m going to ask you to go ahead and—will people—if we run into a problem as Karen walks through this, I’m hoping, Kristy, that you can -- momentarily?
KRISTY MCKEE (ph): I have it. Steve forwarded it to me. I was not on the recipient list.
CADE: Ah. OK. So, Karen?
KAREN: What I’ve done here, and again, I did not—in the interest of time, I didn’t solicit the feedback of the other members of working group 4.
THOMAS: I’m sorry for interrupting, just an infrastructure point. Marilyn, I’ve got a new number for Abel.
THOMAS: 4 ...
CADE: And Abel, no doubt, would like for me to call him. What’s his number?
THOMAS: 44 18 95 635 413.
CADE: I will call him, Thomas. He’ll be bridged on for the length of time I will be on the call, which will only be until 12 o’clock. I’m going to drop off now and call him, thanks.
THOMAS: OK. Sorry for interrupting you, Karen.
KAREN: That’s OK. So again, what I did was I just tried to call through the comments that we got and I tried to just incorporate them to the extent that I felt they were kind of broadly-held views or were practical recommendations based on, you know, the experiences of the registrars in particular. So if we can just go to the draft ...
CADE: OK, Abel has joined us. Welcome, Abel.
CADE: Abel, just real quickly for you, we have a new colleague joining us because our colleague Karen is going to be changing roles at Dot Name (ph) and a colleague of hers from Dot Name (ph)—and we’ll give you other details—but for right now it’s Fran, a gentleman who will be picking up for her and he’s on the call with her, so when you hear a new voice, that’s who it is.
ABEL: OK, thanks.
CADE: OK, that’s it.
KAREN: OK. So on page 2, I added this little paragraph that says—sort of—let me back up for a second. I agree with you Marilyn. I think we should, you know, this format of this document should be changed so that there is kind of a general overview and executive summary at the top, because these are kind of, you know, the policy recommendations and the following discussion, which is what exists here I think, is the basis on which we make these recommendations. So on page 2 I thought the point that my collage made about the national laws and local stakeholder perspectives made sense in terms of these are things that we need to take into account—or ICANN (ph) needs to take into account where we’re making a new policy. Now, I don’t think that the taskforce is in a position—and I think, Steve, you pointed this out pretty early on—I don’t think that we’re in the position of actually reviewing all of the privacy laws in the various jurisdictions around the world so, but I do think that ICANN (ph) needs to be cognizant of, you know, the different requirement restrictions. And, you know, ...
STEVE: Karen, when you refer here to local stakeholder perspectives?
STEVE: Who are you referring to? Because I think this just—this section I think just talks—is just applicable to GTLDs.
CADE: Actually ...
STEVE: Or is it? Because it’s all discussion of the registrar accreditation.
CADE: Yes, but—Karen, I shouldn’t answer for you, but I have a question to Steve. Excuse me.
KAREN: No, that’s fine. I was thinking about a sort of registrant locally based, but I think it’s probably more relevant to stick to national law and what is required by the different sort of privacy or data protection directives.
CADE: Yes, let me—let me, Steve, let me raise a question that has been raised with me in the last couple of days along this particular line. That is whether countries will start following suit to apply to the data—right now there is no clarification that the European data privacy directive is being extended to Whois that is being gathered—data that is being gathered by a registrar that is not in their country, or even necessarily a GTLD registrar that is in their country. I think what you’re saying here, Karen, is that any ICANN (ph) policy regarding—and I might even suggest that we’re talking about bulk access here—but I think it may be a higher level principle, but it may be a recommendation from the taskforce as opposed to demonstrating that we have consensus on this particular issue. But it would be something like ICANN (ph) policies regarding marketing and resale and to just—and bulk access—take into account any national law—laws which are determined to be applicable. Right now not all laws are determined to be applicable.
STEVE: I think that’s a good suggestion, but I don’t—and I think you—so you weren’t, Marilyn, responding to the question about local stakeholder?
CADE: No, I was actually going to take it up a level than, Karen, than how you did it just because this is getting—this is actually maybe particular to the physical location of registrar or registry. And I think we need to try to be general in our principles, or in our—and this is going to be an area of, I think, a lot of future work for the taskforce or a follow-on group to the taskforce. I’m not suggesting, by the way, that we might (INAUDIBLE) in further discussion, as you’ve done here, as an example of why it would be important, but I was trying to think (INAUDIBLE) a level so that we could stay, you know, supported by these concerns about privacy or, to some extent, supported by the survey, but not in any—but not in a signifICANNt manner. At the same time, the taskforce has heard, in a variety of outreach sessions, questions about privacy and what problems exist. And what risks exist. There is no—today is no—there’s lots of speculation—I don’t (ph) want to get into a debate on this call—there’s a lot of speculation about the fact that there may be problems related to privacy, but there is actually not—and I’m not—there’s not a significant amount of understanding of what the risks are, what the laws are, et cetera.
STEVE: I mean—Marilyn, I agree, I think that your formulation is a good one, that it should be taken into account to the extent those laws are determined to be applicable and it’s really—I agree, it’s not up to the taskforce to figure out. It’s a very complicated area.
MARILYN: And right ...
STEVE: To figure out what laws are applicable and how they would apply, it’s just that this is part of the landscape that ICANN (ph) needs to be very aware of.
CADE: And then, Karen, you might go (INAUDIBLE) to add in, as an example, an ICANN (ph) cross-contracting party; i.e. a registry or a registrar could be determined to be subject to jurisdiction of national law, even though—do you see what I mean?
CADE: Is everyone else OK with that? It fits the message in there?
KRISTY MCKEE (ph): Marilyn, Kristy. I think it’s really important that we somehow find a way to let people know that we are aware that any problems that we have with netizens (ph) on the Internet, there’s already applicable law written to deal with them.
CADE: Good point, OK.
KRISTY MCKEE (ph): So, for example, with privacy and—what is it when people hang outside your house and kind of try to scope you out?
KRISTY MCKEE (ph): Stalking, yes. There’s privacy in stalking, you know, although—I have some girlfriends that do the plinko.net (ph) site and they received all kinds of funky stalkers and mail and all that, but the police were able to take care of it.
CADE: You know, I think that’s actually a really good comment to make, that while, you know, while the taskforce did not examine this area in detail, we—it is our belief that applicable laws exist to deal with most, if not all of the problems, but that more worked (ph) it will obviously be needed, but that this is—these are areas the taskforce recommends for the work-in and then go—and then point people to where we describe what that further work might be, like this workshop we’ve talked about, et cetera.
CADE: Steve, are you—I’m sorry, Thomas wanted to comment and then I wanted to ask Steve a question. Yes, Thomas?
THOMAS: I think what we should make clear in this particular part, or other part, is that there can’t be an expectation that RAA (ph) policy, or contract language, which is in conflict with national law, applicable to (INAUDIBLE) part. It is actually enforced against the (INAUDIBLE) in any way by ICANN (ph). That’s ...
CADE: Wait, wait, wait just a minute. I need to understand what you’re saying because you think the accreditation agreement ...
THOMAS: I’m talking about the accreditation agreement ...
THOMAS: Which may say—makes this kind of data available, period.
THOMAS: There may be applicable national law which says you must not make the data available. And I do believe that we should make very clear that there is no expectation that compliance of a registrar with applicable national law is considered to be a breach of the RAA (ph) leading to the accreditation, plans (ph), whatever.
CADE: OK. Let me try it in a slightly different way with—so in order to ensure that there are exceptions—when national law has been determined to be applicable and establishes certain limitations, then exceptions in RAA (ph)—because I don’t—I think, Thomas, you’ll have difficulty convincing everybody on the call that the RAA (ph) should be written for the exceptions. Do you see what I mean? But we could—we could recommend ...
THOMAS: That’s why I talked about enforcement of the RAA (ph), not about the RAA (ph) ...
CADE: Well, ...
STEVE: Marilyn, can I get in the queue on this?
CADE: Sure. Yes, why don’t you go ahead, Steve?
STEVE: I think Thomas’ formulation is much broader than we should be getting into and I think Marilyn’s formulation that says that you have to take this into account is preferable because I don’t think that as a—I mean, if you get outside of the Whois area, you can come up with a lot of examples of situations where that might not be true. There might be registrars in some jurisdictions whose laws just make it impossible for them to serve as registrars and you can’t just say, “Well, in that case, never mind, you don’t have to live up to these obligations of the agreement.” So you can’t say that as a blanket matter. In some cases, there may be a situation between complying with the agreement and—between serving as a registrar or registry or whatever it is, and being subject to the jurisdiction of a particular law. So it’s—I don’t think you can make that blanket statement, but I think it is important to flag, as Marilyn’s formulation does and I understand it, but this is part of the landscape and it has to be taken into account to the extent it’s applicable. And to the extent it’s applicable is our reference to a very complicated set of issues about when the law is even applicable, much less what it says in a particular circumstance.
LAURENCE DJOLAKIAN (ph): Yes, it’s Laurence Djolakian (ph). I would (INAUDIBLE) support the formulation of letting in—I mean it’s not our job, I think, here in ICANN (ph) to go into the—well, it would be impossible to analyze all the national laws on privacy. However, recognizing that they are part of the landscape and that if they are applicable, I mean, if a registrar is submitted to the jurisdiction of one law, then of course, it is applicable, but this is—this is the rule. I mean, it’s—it would—I mean, even if we—we can write a sentence here, we can not write it, it will, in any case, apply. But I think, Marilyn, it suggests we would clarify things.
CADE: Let me give it a try, but let me also suggest that we act—that we need to apply ourselves somewhere to acknowledging that some of—that this learning abut the risks—and I’m not going to say risks, if any, I’m just going to say the learning about the risks and the issues and the applicability is work that needs to be done and that I think we need to try to do in the three months between January and March and propose this workshop that we would jointly do in Rio that would begin to get into learning about it. At a, really, a meta-level, not studying the laws, but learning more about it.
THOMAS: I’d like, Marilyn ...
THOMAS: I’d like to ask you to repeat what suggested language we have on this now because I’m not sure if a (INAUDIBLE) I should make, I need to hear it again, please.
CADE: What I’ve done is just taken some notes that’ll be on the transcription, but the transcription’s not available for five days, so I said, in addition to these concerns, it is critical that ICANN (ph) policy regarding marketing, resale and bulk access take into account national laws which are determined to be applicable. And then, in addition, I suggested that Karen would keep some formulation of—for example, a ICANN (ph) contracting party, i.e. a registry or registrar, Whois located in a country—in a particular country—may be determined to be subject to jurisdiction of particular national law, which would have implications for what they do. Just something of that nature.
THOMAS: I think we should (INAUDIBLE) into that language you have proposed while saying, because right now you’re just—we are talking about what policy should be taken into account.
THOMAS: It means we are making a general statement mostly applicable on the mid to long-term level.
THOMAS: And I think that we should add an additional cautionary note that (INAUDIBLE) future policy development, but also enforcement of ICANN (ph) policies. It needs to take this possible conflict into account.
CADE: I’m happy to go there in a minute, but could I ask you something? Are you observing a problem right now?
THOMAS: I’ve been told by some registrars in Shanghai that they are currently not making bypasses (ph) due to national law concerns.
THOMAS: Then what happens when (INAUDIBLE) goes to ICANN (ph) (INAUDIBLE) please enforce the agreement.
LAURENCE DJOLAKIAN (ph): But, Thomas, do you speak about cc TLDs or gTLDs?
THOMAS: I’m talking about a large gTLD (ph) registrar.
CADE: Some of the gTLD (ph) registrars who are located in Europe, Laurence Djolakian (ph).
STEVE: Well, this isn’t just a European—I mean, there’s another issue which I hope we will get to when we get back to talking about Karen’s document and ..
STEVE: ... and whether we should be talking about enforcement of the existing bulk access provisions, or as modified, because the fact is there are a number of registrars not based on what they think European law is ...
STEVE: ... and they’re simply refusing to make bulk access available.
CADE: Right. So, let’s—can we—I’m not exactly tabling what you have said, Thomas. I think we need to go into this discussion. Let’s go back to Karen’s document. Let’s go into this issue of are we talking about (INAUDIBLE) existing document, or as modified and I believe, my hope would be, that we would talk about as modified. We might need to say as the taskforce, in the meantime, until these modifications are implemented, the taskforce recommends forbearance or something of that nature, but let’s see where we are. Does that speak—is that OK?
THOMAS: I have a problem with understanding what you are saying. Are you talking about the modifications we are proposing on the short-term? Or are you talking about modifications possibly made after a long study of all possibly applicable law? Because it’s a more general problem, I think, and we can’t—most likely we can’t expect that the policy we come up with will really re-comply with all kinds of applicable national law. So there may be need for a compromise in enforcement in the future, too.
CADE: I think that’s what I was saying.
THOMAS: Oh, OK.
CADE: There may need to be forbearance in enforcement in the meantime.
THOMAS: Yes, the problem I have is, in the meantime, or shouldn’t we be realistic and expect that have a problem to persist for a long time.
STEVE: Marilyn, I would be more comfortable kind of flipping it the other way to say that once these changes are made, you know, we would observe that basically, the existing bulk access provisions are not being enforced and we would hope that, or we recommend that, once they’ve been improved, as we recommended, that they be enforced, subject, you know—I don’t have any problem making a reference to a, you know, law, national law that might be applicable there, but I think it is important to stress that there should be enforcement because there isn’t today. I mean, just, it seems to be a fact.
CADE: I hear you, Steve. I think we actually need to have a debate—sorry, a conversation within the taskforce about whether the taskforce supports the continuation of availability of bulk access. I think our recommendations ...
STEVE: Yes, we need to get to that part ...
CADE: Yes, yes. So, Thomas, I’m going to actually table this, come back to it, because we need to get to this discussion that will answer your question, I believe.
CADE: Karen, we’re back to you.
KAREN: OK. The next substantive change that I made—I took out all the questions and then I took out the discussion that we had on the annual fee not to exceed $10 thousand because I think what we said here was—I think that the feedback that we got from the registrars was that $10 thousand was not a financial incentive for them to actually go out and sell this actively. I personally didn’t think it was a huge issue and—but I would be curious to hear what everyone else thinks.
CADE: Of whether it’s a threshold, meaning people will sell it because they want the money, or it’s not enough to encourage them to sell it or?
KAREN: Either. So the question is, is the provision fine as is where the ...
CADE: Let me say something about this. I believe that our recommendation, as I understand it, is that in some situations, bulk access should still be available. I do think that there needs to be a cap on that if—in the development of third-party services, legitimate third-party services, that are built on bulk access that are not being used for spamming and other sorts of things—let’s say we cross that hurdle of what the legitimate service definition is. I think there’s a problem with the idea that it costs $10 thousand for a list of 500 registrations or a hundred thousand, and it also costs $10 thousand for 30 million. I think it’s very difficult for entrepreneurs to build reliable third-party services if they—if they could be charged $100 thousand and held hostage in certain circumstances. And this—if it’s not revenue-producing and it is a legitimate service that’s being built on it, wouldn’t we want there to be—I’m just asking—would we want there to be a ceiling?
KAREN: Well, isn’t there a ceiling now? I mean, now there’s a $10 thousand ceiling.
KAREN: So the question is do we just recommend that that provision kind of stays as it is?
CADE: You know, the really interesting thing is that it’s an annual fee of 10 thousand, so it’s not a per incident fee.
CADE: which a lot of people miss.
KRISTY MCKEE (ph): I missed that. I thought it was a per incident fee. This is Kristy.
CADE: I, you know—let’s ask somebody who knows.
STEVE: Well, it says it’s an annual fee, not (INAUDIBLE) $10 thousand.
CADE: Right. So ...
STEVE: One of our recommendations was that—or at least one of the questions went to this question of relating it to the cost, which I think from my—my impression was that got a pretty negative reaction, but I don’t know whether that was from people who didn’t like that idea, from people who didn’t want to give bulk access anyway and, therefore, seized upon this as one reason for objecting to it. I just don’t know the answer.
KAREN: I think the costs will vary, obviously, across registrars, depending on resources, depending on the size of the database, as, Marilyn, you pointed out. And I think the objection to providing at-cost services was the idea that people would be divulging their internal costs to the general public. Which people seem to object.
CADE: If the internal cost is—I hear that—if we’re talking, I think, media costs here, but ...
KRISTY MCKEE (ph): We’re talking negligible. You’re talking about, like 15 minutes worth of somebody’s time or an hour of a network administrator’s time, if ...
CADE: And the cost of whatever the medium.
KRISTY MCKEE (ph): Yes, the cost of the bandwidth or the cost of the medium or, you know, I can’t’ see how it would be that expensive.
CADE: But ...
KRISTY MCKEE (ph): Or taxing, for that matter.
CADE: Yes. But, why don’t we just struggle for a minute here with what we want to recommend and then we can come back to this issue of cost. Because I see why you took it out, but I'm not sure—maybe we have—maybe we make a comment, Karen, that from the feedback we received, blah, blah, blah. You know, look, a registrar making a complete electronic copy of the data at least one time per week for download by third-parties, it’s conceivable that that is a $10 thousand work item for a registrar over a year’s period of time.
KRISTY MCKEE (ph): Yes.
CADE: Maybe it’s more, depending on how—I mean, it could be if it’s—if you have a lot of third-parties who want it. But maybe we just have a discussion about cost in that we heard some comments that there was not actually enough discussion about what a reasonable reimbursement cost should be, but the taskforce, in general, does not agree—does not believe that this should be viewed as a revenue producer, but should instead be viewed as a cost recovered. Is that—am I right?
KRISTY MCKEE (ph): Yes. It should be a cost recovery. So there should be no incentive—this is Kristy—there should be no incentive for them to resell the book, you know, book access to the data.
THOMAS: Why should it just be cost recovery?
CADE: Because, Thomas, I think the taskforce generally, in the past, has had a discussion that if you mark it up, you’re incenting registrars to look at this as a revenue source and, therefore, they will be incented to market it and to try to—and that’s the whole point, we’re trying to actually manage access to bulk access to only services that are legitimate. That’s part of the recommendation ...
THOMAS: I mean, but I kind of—I kind of buy this argument. On the other hand, I get something like a pain in my stomach when I see that one service, which is subscription-based, which is clearly something which happens as revenue, gets a key component, raw materials so to speak, at a regulated cost. I have a problem with that economic ...
CADE: Because it—you—look, look, we need to focus on what the taskforce has heard so far and the input we’ve taken and then the value-added we can add to it. So I just want to capture what we’ve heard so far and what the discussion has been and if you end up, you know, having additional data or views from your group that object to that, then we need to accommodate that, either in a minority statement about that particular section or by editing the report because there’s broad enough support for it. So right now we’ve got to capture what ever (ph) we heard so far and that’s what I tried to do. If I didn’t capture it correctly, then let’s edit what I said.
COLEMAN: Marilyn, this is Fran …
CADE: Is that Fran?
COLEMAN: Yes. Two thoughts. First of all, my own sense is that ...
THOMAS: I hardly ...
CADE: Fran, could you speak up?
COLEMAN: Sorry. My own sense is that if we were to impose a cost-based test here, it would become a cottage industry for efforts to justify and seek relevant supporting documentation, which I don’t think anybody would relish.
CADE: We already—Fran, I’m sorry, but we already have a cost-based approach.
COLEMAN: You do?
CADE: The registrar may charge an annual fee not more than $10 thousand.
COLEMAN: Right, but he doesn’t have to justify the cost to anyone, does he?
CADE: We’re not—I’m not suggesting we do that, I’m just noting that so far, the input we have received—that the taskforce is not making a specific comment about what the charge can be, but we—but in general, we believe it should be “a cost recovery approach rather than a revenue producer”.
COLEMAN: I completely agree with that. The second thought is that whether it’s possible to read the language that I’m looking at, as we say an annual fee not to exceed U.S. 10 thousand, but could that be read to mean a series of charges which together do not exceed 10 thousand annually? In other words, the annual fee could be a composite of lesser fees which, when assembled at the end of the year, don’t exceed 10 thousand.
CADE: Does anybody on the call know what the registrars are doing now? OK, I will e-mail several and ask register.com and 2cows to—and godaddy to tell us if they will—on the list, what they do. And can we just flag Fran’s question? That could be viewed as a clarification to existing policy.
STEVE: There’s ...
RAM MOHAN (ph): This is Ram.
STEVE: ... because most of those registrars do not provide bulk access.
CADE: Oh, I’m sorry then, Steve, I need better guidance. You have to ...
UNIDENTIFIED PARTICIPANT: Ah ...
CADE: And I’m—Steve, I mean I just—we’ll have to figure out who does, then. Sorry. Yes, Rom?
RAM MOHAN (ph): I want to make a comment. I wonder why the taskforce wants to comment on registrar business practices. I think we’ve tried to do that in the past and registrars has not taken kindly to it, as have other folks. I mean, there are folks have come out on various lists saying that it’s completely out of our jurisdiction ...
CADE: Ah ...
RAM MOHAN (ph): ... and I wonder whether our saying, you know, stating it ought to, registrar business practice ought to go a certain way, helps the actual point we’re trying to make, I’d like to suggest that it does not.
CADE: OK. Let me be clear about something. We’re talking about existing policy. OK? Right?
RAM MOHAN (ph): Right.
CADE: OK, we’re talking about existing policy. We can edit what it is—how we’re trying to say this, but it is the job of this taskforce to comment on existing policy. So we are, therefore, commenting on existing registrar practices. Right? Now maybe we need to say it as a, “The discussion of the taskforce indicated the following”, but that’s our job, is to comment on existing policy and to propose revising it, editing it, changing it—sorry, and I got revising it—or proposing new.
KRISTY MCKEE (ph): Can I make a suggestion?
CADE: Yes. Let me just finish with Rom, make sure I understand. So given that, Ram, how do—how do—how would you like to address this particular point?
ROM: I guess my point is that there is a difference between making a comment versus making a prescription. And it sounds to me like what we’re trying to say here is a comment that is disguised as a prescription. And maybe we should simply stop with the comment. Right now we’re saying it ought to be—it ought to be this, and I’m awful concerned that we’re going to have all of these business owners who are going to come back and say, “That’s my prerogative.”
CADE: We’ve got—let me take you back to enforcement of existing contracts. One of your taskforce members, at least, has noted that the existing contractual obligations are not being enforced. Right?
RAM MOHAN (ph): Right.
CADE: So one outcome could be that this taskforce says that I can’t enforce the provision of bulk access and keep “The registrar may not—may charge an annual fee not more than U.S. 10 thousand.”
RAM MOHAN (ph): Right.
CADE: What we’ve tried to do, based on our learning, is to modify bulk access because of other feedback we’ve gotten.
RAM MOHAN (ph): Right.
CADE: Help me understand how I fulfill the responsibilities of the taskforce without commenting on the existing policy? And we can think about wording, but we have existing policy and we’re trying to edit it.
RAM MOHAN (ph): But we’re trying to say what the policy ought to be changed to. We're trying to say it shouldn’t be legitimate use, that’s it’s reasonably accessible, up with a cap of $10 thousand. We’re trying to say it should be only cost-based.
CADE: I’m—look ...
RAM MOHAN (ph): I hear what you’re saying; you’re looking to me for a recommendation of what it should be. I haven’t gotten there yet myself, Marilyn. Where I am really, is trying to make sure that as a taskforce, we don’t step into a place that is hard to get out of.
CADE: I understand, but you’re going—we are all going to have to pay attention to the language. We’ve got a section that we’re trying to edit, we’ve got one proposal on the table that may or may not work, which is, ”The general discussion of the taskforce addressed this.” Then our recommendation could be that we recommend keeping, when bulk access is determined to fit the other criteria we’re talking about, we could recommend just keeping the existing policy statement. Of that particular policy element.
RAM MOHAN (ph): OK. Well, let me—let me make a suggestion. If Karen is—or Karen and Fran are amenable to that, maybe we can come up with, you know, somewhat different language that addresses the meat of what we’re trying to get across without trying to be descriptive. So if that’s OK, you know, we’ll come back to the taskforce with a different proposal shortly.
CADE: OK, it’s got to be on the list and it’s got to be done now, right?
RAM MOHAN (ph): I understand, I just can’t do it right now.
CADE: No, I know, but ...
RAM MOHAN (ph): But it’ll be done very shortly.
CADE: Right. Great, great, great.
RAM MOHAN (ph): And it’s contingent on, you know, Karen/Fran saying yes.
CADE: I’m sure Karen will take this friendly edit. Right, Karen?
CADE: And then not ...
KAREN: But ...
CADE: ... it’ll—I mean, you’ll dialog with him about what to do here.
KAREN: Yes. I think the point that I—I mean, I hear what Ram’s saying, I hear what people are saying about, you know, sort of access to—bulk access for legitimate purposes. I think that, you know, maybe our statement really is boiled down—boiled down to something simple, which is—which is that access, to the extent that a person or a searcher is doing it for a legitimate purpose, should be made available in a—in a sort of inexpensive way. Whether the registrar does it based on cost or not, I mean, they’re still subject to a cap.
CADE: OK, if you guys would work through that and I think there’s a key point here that sort of wants determined; whatever legitimate purpose is here, right? The definition of what a legitimate purpose is?
KAREN: Yes, I set it as kind of a further review by the taskforce because I think we haven’t had enough discussion within the taskforce, nor has the community sort of given us feedback as to what a legitimate purpose should be. Clearly, a legitimate purpose, I think, does not include marketing.
CADE: Let’s try the taskforce out on that. My ...
ANDREWS: Marilyn, this is Sarah.
ANDREWS: Just on that point, I think that we should really be focusing on the legitimate purpose because the cost, if you’re (INAUDIBLE) from a privacy perspective, can go both ways. You either have a low cost and that allows a lot of people to get access to the data, or you have a high cost and that’s mainly an incentive for registrars to be selling this stuff. But if we’re going to—I mean, are we going to try and work through the legitimate purpose (INAUDIBLE) this draft, are we going to try and come up with a definition for it?
CADE: OK, guys. Let me bring you back to what you have done so far and what you can do. If we have not put a—the discussion of a legitimate purpose out for comment so far, and if we haven’t had the debate so far within the taskforce, given the timeframe before us, I believe what we would have to do is to note that establishing what the “legitimate purpose” definition is, is further work. But what the taskforce can note is consensus that it is not marketing.
KRISTY MCKEE (ph): I agree with what you said, Marilyn.
KRISTY MCKEE (ph): Kristy.
CADE: That just captures what you said, right?
STEVE: Yes, I agree with that and, in fact, I think if we get on to 188.8.131.52 we can ...
CADE: OK. So you guys are OK and if anybody—you can redraft this and that means you call for further work, Karen, on how we explore how to determine what legitimate purpose is, but we know what it’s not?
THOMAS: One more point, maybe, about one of the arguments about 184.108.40.206 ...
CADE: Wait, wait, wait, hold on. I’ve just got to—are you—are we all on the same place right now?
KRISTY MCKEE (ph): Yes.
CADE: OK. Go ahead, Thomas.
THOMAS: We were talking about incentives. Incentives only make sense when there is a degree of freedom to enforcement ...
CADE: 220.127.116.11 is gone.
THOMAS: I’m sorry?
CADE: Karen, is this up-struck (ph)?
KAREN: 18.104.22.168 was what we were just talking about and the fact that I had struck it.
KAREN: So now I’ll put that back in.
CADE: And then—and it ...
KAREN: With the comments that we’ve just had.
CADE: Go ahead. Go ahead, Thomas. I was just ...
THOMAS: The argument of—the argument about possibly (INAUDIBLE) being an incentive to actually make that available, of course, only makes sense if there is no strict enforcement. If there is, however, a degree of freedom to (INAUDIBLE) national law—besides national law—to whether or not registrars make it available, in that case, the argument has merit. But if, really, we say wherever it is legally possible, like action should be enforced, then registrars don’t have a choice so we don’t have to incentivize (ph) that.
CADE: Well, we would say, though, wherever ...
THOMAS: ... matters.
CADE: ... it is legally available and consistent with a determination of legitimate use.
THOMAS: Yes. If we really do this in a strict matter, then we won’t get more bulk access because the price is higher. (INAUDIBLE) I’m really just speaking right now to this incentive argument about capping or not capping ...
CADE: Thomas, I really will have to turn to the registrars for the practicalities of what they do because, you know, we’re kind of flying blind without input from the registrars and, you know, sort of my speculation on what will drive their behavior. The ones I’ve talked to resist bulk access because they do not either—some of them because they’re very concerned about spam, others because they are very concerned about their competition back (ph) marketing to their registrant.
CADE: And, you know, I think motivating behavior—I have not heard any of them say—I’ve heard one of them say that the $10 thousand fee could be a motivator, but, for other reasons, they haven’t chosen—that they are resistive to bulk access, or opposed to it. So I haven’t gotten a lot of comments from registrars that I’ve talked to that this is—that the—that this—that there is—that the money is an incentive.
THOMAS: And what I’ve heard from most registrars on other lists and talks is that they would just as well get rid of it as keep it because it is, at the moment, certainly with the cap of 10 thousand for the larger registrars, a cost instead of anything else.
CADE: Can you come back, Thomas, whenever you see the revised section that Karen’s going to put back in and see where your comment would fit?
THOMAS: Yes. I will provide some re-planning (ph).
CADE: OK. 3.3.6 sub 3?
KAREN: Here I made the point that there seems to be consensus that there’s no support of bulk access for marketing purposes.
KAREN: So this 22.214.171.124 really shows you marketing by third parties, you know, for their own existing customers for the last -- marketing to their customers who are—who are not customers of the registrar who’s making the list available. So my recommendation would be to remove this provision.
STEVE: Karen, does that actually accomplish what you’re talking about or should we just be looking at removing the last eight words of the provision? The provision says, “Third party has to agree not to use the data to do marketing”—paraphrasing obviously—“and other than such third party’s own existing customers.” If we just said ...
KAREN: Yes, that’s true. That’s true. We could just delete the last ...
CADE: Actually ...
THOMAS: I think the ...
STEVE: ... solicitations.
CADE: Actually, you know, there is a problem with the—with this, Steve. It allows a loophole for—which I find very odd. This says, “e-mail, telephone or facsimile”, right? Or solicitations? This has actually allowed a loophole for selling of the list for direct marketing.
STEVE: Direct mailing.
KRISTY MCKEE (ph): Or if you could ...
CADE: So maybe there we—it should say, “for third-party marketing regardless of the medium used”?
THOMAS: Are we—on the what front are operating? Are we operating under the assumption that we can sort out legitimate use or are we operating under the assumption that we can’t?
CADE: Thomas ...
STEVE: I think we’re operating under the assumption that this marketing is not a legitimate use and, therefore, should be prohibited.
THOMAS: In that case, we don’t need to prohibit and (INAUDIBLE) of marketing, I think.
CADE: Let me—let me just be clear about something. The reason the language is written this way is that it was a very tough negotiation within a large party and the broader definition was struck in the negotiations with that party. The original language proposed by the industry going into the Department of Commerce was the broad language that I just gave you.
KRISTY MCKEE (ph): Marilynn? This is Kristy. Could we just add postal to the list and remove the last eight words? Is that—can we do that? Can we make that recommendation? I would be happy with that.
KRISTY MCKEE (ph): Sorry, it’s Kristy.
CADE: I know, I know. Sarah?
ANDREWS: I think I would be fine with that, too.
CADE: I’m happy with that. I was just going to say, “third-party marketing, regardless of the medium used”?
UNIDENTIFIED PARTICIPANT: Yes.
CADE: And then put in these other things, “for example”, so I can’t imagine what we—maybe we forgot smoke signals, but one of those two approaches.
GLYNN (ph): Well, we might be forgetting about S&S (ph).
CADE: Oh, you know, we are forgetting about S&S (ph). So how about if we use, “for third-party marketing, regardless of the medium used”, and then in parentheses we say “for example—for example ...
KAREN: Marilyn, you could say, “for example, copper wire”, and then comma, you know, what else we can think of, wireless transmissions.
CADE: Maybe we could just say ...
STEVE: Over the wires.
CADE: Yes. Maybe we could just say, “for example, a non-inclusive list follows”. But do something of that nature, guys, and let’s see how that works? And, Sarah, can you come back and advise on that?
KAREN: But I think we could use the definitions that are in the new—the EU Electronic Communications Directive, but we’d also want to put in the thing about direct ...
KAREN: ... direct snail mail.
CADE: Yes. So then you will also then edit the—under the edit you added here, Karen, which says, “The (INAUDIBLE) attached which recommended this provision be removed” and instead you will say, “The taskforce recommends—has recommended modifications to 126.96.36.199” and put the new language there? Right? Or something like that?
THOMAS: I’m sorry. I still have a question.
CADE: Oh, sure.
THOMAS: Under the assumption that bulk access is only made available for legitimate purposes and that marketing is not a legitimate purpose, we would strike this one as regulating the (INAUDIBLE), right?
CADE: Can I—excuse me just a minute. Steve?
STEVE: Yes, I think as a practical matter it makes sense to keep this in because if—let’s assume our recommendations were adopted instantly.
STEVE: It would ...
THOMAS: So ...
STEVE: ... say legitimate purposes, but it wouldn’t have a list, and then we would want to have something that rules out marketing uses, so I think it may—this may be a transitional ...
STEVE: ... measure, but I think it’s worth having it in.
THOMAS: Maybe we should add some (INAUDIBLE) that we have so just in case you forget another loophole it’s not staying (ph) in the future.
THOMAS: Because if we end up with some language which on one hand says, “lot (ph) marketing is not legitimate” and then comes back to “marketing may be”—some (INAUDIBLE) guy comes up with an interpretation which says, “Oh, marketing is allowed for the employees (ph)”, so I would really suggest that we mark it as transitional.
CADE: Would you take over chairing for me, please?
CADE: I have to drop off. And Abel, I’m going to put you on hold. You will not have music on hold on my phone.
CADE: And hopefully when you hang up it will disconnect. Actually – can I get someone else to call Abel back?
ABEL: Give me the number, I’ll call it. That’s—I’m give—the reason I want you to call me is when I’m not in the office ...
CADE: Oh, OK.
ABEL: ... because when I’m not in the office I pay about a dollar a minute.
ABEL: Which is in two hour conversations, it gets kind of expensive.
CADE: Expensive and I know you love being on the phone with me, but that’s even too expensive for your blood, huh?
CADE: Can somebody give him the number, guys. Oh, here it is, I'm sorry. It’s 954 ...
ABEL: 954 ...
CADE: ... 797 ...
ABEL: ... 797 ...
CADE: ... 5363 ...
ABEL: ... 5363 ...
CADE: ... and the code is 142135.
ABEL: ... 142135. OK. I’ll ...
CADE: Thank you …
ABEL: ... just ...
CADE: Steve, here would be my suggestion; you guys can continue going through this and then, to the extent that you could, you can work on the comments you’ve already gotten, I think it’s quite clear we need another conference call to try to consolidate our work.
STEVE: We have one scheduled for Monday, right?
CADE: Well, I actually am going to be in the air on Monday and I was going to ask about rescheduling that. Wait a minute, our call’s at 11. I think I can do that. Let me check and see if I can still do 11. I have to be on a plane at some point, but I may still be able to do 11. If I can’t do 11—if I can’t do 11, can people do Tuesday? At that time?
UNIDENTIFIED PARTICIPANT: 26th.
STEVE: I could do it for an hour then.
CADE: OK. We’re going to need to really consolidate as much as we can over the weekend and I will be trying to get something out to folks, but to the extent you can, work through the changes that people have been incorporating. And then Rom and Kristy, maybe you guys and I ought to have a separate call to talk about how you could try to formulate your sections?
KRISTY MCKEE (ph): Yes, please.
THOMAS: Don’t forget that you have—that you had announced that you would do some drafting on the 15 days, if you’re right (ph)?
CADE: Yes, thanks.
THOMAS: Just as a reminder.
CADE: Yes, yes. So I could do a call tomorrow with Ram and Kristy and I’ll post some times when I could do it. If the two of you could come back to me and then anyone who wants to join us, can.
KRISTY MCKEE (ph): Like Abel?
ABEL: And this is very dependent on the time. I’m—and again, if you can call me, it depends on where I am.
ABEL: I don’t know what time it is. If it’s later in the day, then I have no problem because it’ll be evening here. But if it’s during the day, I’m somewhat stressed at the moment in work.
ABEL: Like I have two days to finish eight days of work.
CADE: Yes, I will post to you and Ram and, Abel, it’ll probably be about 4 today.
ABEL: Yes, that’s OK.
CADE: And I’ve got several hour slots tomorrow.
ABEL: OK, perfect.
CADE: Thank you, everyone.
ABEL: Thank you, Marilyn.
KAREN: Thanks, Marilyn.
STEVE: OK. Are we done with 188.8.131.52?
KRISTY MCKEE (ph): I hope so.
STEVE: OK. 184.108.40.206?
KRISTY MCKEE (ph): Sorry.
KAREN: 220.127.116.11 I didn’t find anything to kind of add to the draft other than someone pointed out that enforceability could be a problem and if there’s, you know, if there’s—you know, if this provision is not particularly enforceable, then, you know, sort of what is the point? So question’s in the taskforce, what do we do with a provision such as this one?
STEVE: Well, I think you’re—what you’ve done, which is to note that it’s needed, but difficult to enforce, is probably the best way to handle it at this point because there’s a lot of enforcement problems here.
THOMAS: Oh, yes.
KAREN: Yes, this—yes.
THOMAS: Maybe we should add a general note that enforceability of this whole provision is a problem and maybe one of the things to review in detail in the future.
STEVE: Well, I, I mean, I think if we can come to agreement on what the provision should be and then say, “There must be an effort made to enforce them”, because there’s a difference between enforceability and enforcement and I don’t think any effort has been made to enforce the existing rules. If those rules are flawed, then they need to be fixed and then there should be enforcement going forward, I think should be our—at least I would suggest that would be our focus. But that does apply specifically to this provision.
THOMAS: I think ...
KAREN: I don’t—I don’t particularly have an issue with the provision as it is. ‘
KAREN: You know the question’s really just there to enforceability. You know, how does a registrar require that a third party, you know, agree to do this.
THOMAS: Most likely it’s most useful if you catch the third party adding (ph) these processes so they are at least in breach of their contract.
ABEL: Come again?
STEVE: It says—I’m sorry.
ABEL: Sorry, Thomas. Can you repeat that?
THOMAS: I’m sorry. I said most likely the only kind of use this actually has is if you catch a third party doing that kind of processes, you at least have them breach of a contract.
THOMAS: May put you in better leader (ph) position somewhere ...
THOMAS: ... value to this.
KRISTY MCKEE (ph): Yes, but how do you catch that party?
THOMAS: Local IP addresses?
KRISTY MCKEE (ph): Yes ...
ABEL: Stupidity and luck, OK.
STEVE: ... to enforcement. Can we move on to 18.104.22.168?
KRISTY MCKEE (ph): Yes, I think with 22.214.171.124 we just need to say that this is something to be focused on, you know, later, when we have a better understanding of what we can do. For 126.96.36.199.
STEVE: OK. Karen, 188.8.131.52? Is there anything ...
KAREN: Ah ...
STEVE: ... here?
KAREN: OK, I didn’t have anything here.
STEVE: So basically our recommendation remains that the “may” should change to “shall” and that the access agreement has to require the third party not to sell or redistribute the data except as a value added product or service.
THOMAS: I suppose we should add a sentence, that and similar—a sentence on enforcement on that one as well because we have heard communities (ph) that it is unenforceable, in fact.
THOMAS: We should acknowledge that.
KAREN: In 184.108.40.206, let me just look at what I’ve added here. What I said here—I think what I did here was I just emphasized the fact that the opt out—you know, the requirement of an opt out policy is really a minimum standard because I think there are—there may be jurisdictions where people—where registrars need to implement opt ins. So the requirement of an opt out does not preclude opt in. And then the second thing that was noted was that opt out policies, to the extent that they’re implemented, should be, you know, very clear to the user rather than sort of subsumed into all the, you know, the language of a—of the terms and conditions between a registrar and the registrant.
THOMAS: Ah ...
KRISTY MCKEE (ph): Karen, this is Kristy. I have a question.
KRISTY MCKEE (ph): Did we not just agree that we were not going to support any form of marketing for bulk access and now, in 3.3.6 we’re saying, “Well, people can opt out of marketing for bulk access some, maybe some service way”, you know? That doesn’t’ make sense to me. I think we either say, “No marketing” or “Yes marketing”.
THOMAS: Kristy? It’s the same objection I made about 220.127.116.11 you were just making. It’s a transitional thing once again, basically, I think. Provided we can get rid of marketing altogether then we can, of course, get rid of the safeguard. But the low-hanging category, the really low-hanging category, we have to get something out.
KAREN: What ...
KRISTY MCKEE (ph): Well, I think what I’d like to see, Karen, with 18.104.22.168, is an acknowledgement that all of the statistics that we have show that people would prefer opt in over opt out, but we understand that opt in is going to be a lot harder and more expensive to implement so we are—you know, why we’re recommending opt out. I remember that language being somewhere before.
KAREN: Yes, I think it’s still in there, I didn’t delete it.
KRISTY MCKEE (ph): OK.
KAREN: The other thing—the other thing that I would suggest, maybe, is just making the point again that there is consensus that marketing is not a legitimate use.
KRISTY MCKEE (ph): Right.
KAREN: However, if it’s determined, somehow, that marketing is a legitimate use, then this is the recommendation that we would make.
STEVE: OK, and does that mean, presumably, that if marketing were ruled out as a legitimate use and we’re clearly barred by the agreement, that this provision would fall out, too?
KAREN: I would think so.
STEVE: Yes, I would think so, too.
KRISTY MCKEE (ph): OK, thank you.
THOMAS: OK, now the question is what do we suggest in the transition period? Do we just say they have to make an opt out available? Do we say they minimally have to make opt out available, but make a …
STEVE: Well, my concern is a practical one that—again, I’m not concerned about for marketing purposes because I’m—I think there should be marketing uses, but the way this—this has been the problem, the way it’s been administered. Some registrars have automatically opted to pull out, which is kind of contrary to what opt out (INAUDIBLE) I think. So I would be concerned about giving people—about basically the sentence you’ve added to the first paragraph here, about opt in, because if the database has value for legitimate purposes, then opt in could compromise that value. Now this might be an area where we’d get back to Thomas—one of Thomas’ -- maybe instead of saying, “particularly where such a policy is required”, maybe if we said, “if such a policy is required by applicable national or local laws.”
THOMAS: Ah ...
STEVE: So that if there were—I mean, this is an area where I think Thomas’ general rule probably does apply, that if you can’t—if you can’t live up to the contract without violating your local law, the local law probably should give way. Excuse me, the contract should, contractual obligation ...
KAREN: I don’t have a problem pertaining particularly to f. I mean, I think the point that I was trying—just trying to make here is that there are different laws that affect the people providing bulk access.
STEVE: That’s true. And I think if we said “if” and also use the word “applicable”, which is what we talked about using in the other part of this section. “National or local laws determined to be applicable.”
STEVE: Because again, that’s a very thorny question about which law’s applicable.
THOMAS: Actually we have one objection against that from our friends at twocows that was a comment about—which I noted that I found it confusing in the summary and—was about what precisely he is trying to say there and that’s some exchange of e-mails. And it was done to offset. They don’t believe that distinct (INAUDIBLE) are economically viable. And also they do not currently offer the opt out at all, on the basis of two concerns they have. Those concerns tend to revolve around enforceability of things. First one is they can’t reasonably distinguish individual registrants from anything else, but the current policy only give opt out drives (ph) to individual registrars. So (INAUDIBLE) they have a problem with the policy.
The second point they—the second problem they say they have is they cannot reliably distinguish marketing and non-marketing users. They seem to have been trying to do that in the past and I think it was something along the lines of that people were obfuscating things when asked about the details of the use of the data. So they don’t believe they cannot—they can implement this. So what do we do about it?
LAURENCE DJOLAKIAN (ph): I don’t think—I don’t think their statement is very clear, first.
KRISTY MCKEE (ph): No.
LAURENCE DJOLAKIAN (ph): And secondly, I think that it’s really a prime (ph) of enforcement of the rules, I mean ...
THOMAS: Well, Laurence Djolakian (ph), what I said was not a statement (INAUDIBLE), it was a summary of an exchange of e-mails.
LAURENCE DJOLAKIAN (ph): Yes, yes, yes, OK. But, still, I think what this say it’s not so clear to me, so.
THOMAS: Well, what they say basically, really, we can’t—we can’t implement it, we can’t distinguish who has the right to opt out and we can’t distinguish to whom we should give what kind of data. And besides that, it’s expensive to us.
STEVE: Well, this is coming from a registrar that doesn’t provide bulk access at all now, so of course they wouldn’t ...
THOMAS: They don’t provide it anymore?
STEVE: They would see it as difficult to do anything, but what—I’m not sure what you’re suggesting that we do here, Thomas.
THOMAS: I’m not sure about the conclusion, I’m just ...
THOMAS: ... putting the fact (ph) onto the table ...
THOMAS: ... we have.
STEVE: Well, does anybody have a suggestion about how to incorporate that?
KRISTY MCKEE (ph): Well, they’re saying it’s difficult to identify or differentiate between individual registrants who may have the right to opt in or opt out of marketing, and businesses who should not have the right to do that. They don’t know how to identify which is which, I guess is what they’re trying to say. Is that correct, Thomas?
THOMAS: that’s one of the two objections. So this could actually be fixed by removing the words “who are individuals” in the first line of Karen’s printout of 22.214.171.124.
STEVE: Well, nominet (ph) thinks it can do it.
THOMAS: I’m sorry?
STEVE: Nominet (ph) thinks it can do it.
THOMAS: Who ...
STEVE: And that’s ...
ABEL: They think, but ...
STEVE: ... but they may be wrong about that.
ABEL: They are already threatened with some legal action so they will probably be wrong (ph) with that.
KAREN: Well, it’s ...
STEVE: Well, is—should we note there that this issue has been raised? To the extent it’s—it deals with that question of whether you’re an individual and entitled to opt out. That’s a question of whether the current policy makes sense. I think we should note it, but again, if we think this is a transitional provision then, hopefully, it will go away once a tighter prohibition on marketing uses is in place.
LAURENCE DJOLAKIAN (ph): Absolutely.
STEVE: So maybe just a sentence there that notes this problem and says, hopefully, will be solved once this is ...
THOMAS: Maybe we could ...
STEVE: ... is discarded.
THOMAS: Maybe we could, once again, try to place some sort of enforcement card (ph) and say, “OK, we noted it in there. We know it is difficult to implement and so maybe registrars should err on the side of providing opt out.”
STEVE: I’m not comfortable with that outcome, but I think if we said that if, you know, if all of our changes were adopted, then this problem would go away and it would be that enforcement obstacle would be eliminated. I think that—maybe that’s a point.
THOMAS: I’m not ...
KRISTY MCKEE (ph): I have a question ...
THOMAS: I’m not talking about long-term at that point, I’m really talking about the short-term part to it and that would be to, maybe to guess that if they can’t implement it, I mean—yes, if they cannot implement a transitional version, we may use the (INAUDIBLE). Then, because of this “individual” phrase, then they should rather opt—said they should rather err on the side of providing opt outs to too many entities instead of erring on the side of not providing opt out at all.
KRISTY MCKEE (ph): I have an idea. This is Kristy.
THOMAS: Go ahead.
STEVE: Go ahead.
KRISTY MCKEE (ph): OK. In the U.S.—and I don’t know about other countries—in the U.S. if you are a business, you have a tax identification number that identifies you as a business. And this is something that we could add into the registration process, you know, the identifier. OK? For the business. If you don’t have one of those, then you are an individual or you are an individual pretending to be a business. OK?
THOMAS: OK. …
KRISTY MCKEE (ph): Do you see where I’m going with this? So the individuals who are pretending to be businesses no longer have the benefit of the mask of the Internet because they have to prove they’re a business in order to be accounted as one and that helps consumers—but this is a thought, I have not thought through this. But can you see where I’m going?
THOMAS: I think it’s possible.
UNIDENTIFIED PARTICIPANT: Yes, this was discussed at ...
STEVE: Yes, I mean, there was a lot of discussion about this at the time of the roll-out at dot bids (ph) and how were they going to figure out who was a business. They thought there would be huge problems with this and one, of course, is that some countries don’t have the same system.
KRISTY MCKEE (ph): Yes.
STEVE: So I would hesitate to inject that issue into—into this report at, you know, this stage of the game.
KRISTY MCKEE (ph): Well, that’s why I brought it up. Find out where it fits, or if it doesn’t.
KAREN: Well, I think the other issue is that a business could always, you know, withhold that information, saying, “I don’t have a tax identification number, and therefore I can opt out.”
KRISTY MCKEE (ph): Right, but then if—then say they want to, you know, have an e-commerce certificate and they’re not a business. I mean, there are different ways that we can affect them.
THOMAS: Well, Kristy ...
KRISTY MCKEE (ph): OK, well, you’re not a business, how can you qualify to have this great ..
STEVE: But Kristy ...
THOMAS: Kristy, you’re ...
ABEL: Kristy, works great ...
KRISTY MCKEE (ph): So you see where—I mean, I’m going in a weird direction, but you can see where I’m going.
THOMAS: You’re on something like a 10 to 20 year time scale, I think.
STEVE: Yes, you’re going in a good direction, but it’s not one that we can really proceed down, I think is what ...
KRISTY MCKEE (ph): Alright, fair. I’ll stop going in that direction then.
STEVE: Yes. Is there anything else on this 126.96.36.199 that people want to raise?
THOMAS: So wait a moment. Right now we are not proposing a change to the wording of the policy, right?
STEVE: Of the policy?
KAREN: For 3 ...
THOMAS: For 188.8.131.52.
TOMAS: Which is—which has a reservation as being subject to change, is my concern with policy?
STEVE: Well I thought we were ...
KAREN: We’re saying that ...
STEVE: ... recommending that ...
KAREN: ... want to change it to that we’re requiring a registrar to implement opt out ...
KAREN: ... rather than giving them the option of.
STEVE: Right, and then we’re also saying that if taken in the total context, we think this provision can be eliminated ...
STEVE: ... when marketing uses are ruled out because it’s basically only dealing with marketing.
THOMAS: So if there’s requirement to implement an opt out policy, or at least an opt out policy, would that be something we would have to bring to the Mains (ph) Council as a consensus policy?
STEVE: I think everything we’ve talked about today probably fits in that category because it would require a change in the agreement.
THOMAS: I’m sorry, would be what? I didn’t understand.
STEVE: Would fit in that category, would be required changing consensus—new consensus policy, wouldn’t it?
STEVE: I think.
THOMAS: The short-term.
STEVE: Yes. The policy, yes.
KRISTY MCKEE (ph): I’m comfortable with those two edits and modifications to this and then moving forward.
STEVE: OK. Karen, are you OK with that?
STEVE: Alright. And then you have further recommendations. Do you want to walk us through this?
KAREN: The first one is something that I will address above, as well.
KAREN: Which is that, you know, we have to look further as to what legitimate uses are, but clearly, the consensus is that marketing is not a legitimate use.
THOMAS: Would you add a sentence there or?
KAREN: Well, yes, I would probably add a sentence there, but I’m also going to add something to the body of the draft, as well, sort of further above where we discuss legitimate use.
The second point—and this is not made that clear in what I’ve actually drafted—but we talk about once we make a determination of these legitimate uses, we should—or there should be a determination of whether those legitimate uses -- way -- privacy interests of registrants. Because I think there has been—well, there has been discussion, certainly, that, you know, bulk access should not exist or whatever because of the privacy—the privacy considerations. However, we have not had enough time or enough feedback to be able to make that determination. And certainly have not determined what legitimate uses are.
Third, I think this is a comment from twocows that the bulk license is usually—usually people try to gain access to a bulk license in order to affect illegitimate uses and so maybe there needs to be more of a study with the registrars to see what kinds of uses are actually being affected through bulk licenses. And if those uses are not legitimate, and the majority of uses are not legitimate, then maybe there is a further argument for simply eliminating bulk access.
And then finally, I talk about the opt out minimum standard. Steve, this is a conversation that you and I had had a while back, you know. I think the survey said, you know, either opt in or no marketing uses at all, but I think we agreed that this—that was sort of a reaction to the lack of any standard.
KAREN: So the idea was to implement opt out first, and then to see whether that was sufficient to deter non-legitimate use. And if it wasn’t sufficient, then you know, the question is do we implement opt in? Or should the standard be opt in?
KRISTY MCKEE (ph): This is Kristy, and I'm going to say the standard’s got to be opt in and I just can’t agree that opt out should ever be put forward as a suggestion. It’s going to be hard to get consensus with me on the opt out.
THOMAS: Well, I think, Kristy, to the extent that opt out is a minimum standard, giving the option to registrars to change over to opt in, that would add some way to—give them some way to distinguish their services in the marketplace. I could imagine that in the current (INAUDIBLE) atmosphere, that would—could actually make a difference, what kind of policies these guys are offering. I think on the consensus, stronger problems I would expect is one—the problems I would expect would come mostly, actually, I think from two sources. One, the registrar’s constituency where we have had some comments which are saying a differentiated approach is not feasible and we currently don’t offer opt out, where we have some registrars who don’t offer bulk access at all presently, it seems. And the other one is actually, I’m somewhat looking at Karen for that, were detail (ph) the registrees (ph) constituency, I think, at their command submitted in response to the interim report, also contained a number of objections and concerns about the proposed changes to the bulk access policies. I would be curious to learn how that’s looking right now, Karen.
STEVE: Karen, do you have any comments on that?
KAREN: Ah ...
STEVE: About the registry constituency comment?
KAREN: Ah, hold on one second.
STEVE: While she’s looking for that, I think this discussion emphasizes, for me, that the way this is presented, I think we should—it should be presented to make it clear that our—we think the best policy is no marketing use of bulk access data.
STEVE: Because if that were firmly in place and everybody were satisfied that it worked, that it is firmly in place, then a lot of these—you know, then the opt in/opt out issue kind of goes away and so do some of these other issues. And rather than, you know, try to twist everyone’s arm about what should be the consensus policy on opt in or opt out, if we can get to a point where that use is just not allowed, then maybe we’ve accomplished everybody’s goal here. I agree with Thomas that some of the—it’s not going to satisfy some in the registrar constituency who just want there to be no bulk access requirement at all. But aside from that, I think it would be, you know, I think there would probably be—certainly in terms of the survey ...
THOMAS: Well, if there was no bulk access, there would not be a problem of marketing either, would there?
STEVE: That’s true, too. But you would also be throwing the baby out with the bathwater and the legitimate uses would be gone.
THOMAS: Well, if the—again, we have not yet determined what legitimate use stands for (INAUDIBLE) and actually, the concern I have is that a recommendation from us, just some little changes to the policy, may be a non-starter (ph) as concerns this policy to—some lack of concern from these ...
STEVE: I wouldn’t characterize this as a little change, I mean, I think right now, marketing uses, at least some marketing uses, are allowed for bulk data. And I don’t think the registrar has the power to rule them out. Whereas if ...
THOMAS: Steve, we’re talking about different changes. I was talking abut the small changes to 184.108.40.206 and things like that. You’re apparently talking about the change to eligibility, which will be ...
STEVE: Yes, the—I’m sorry; I’m talking about our recommendations as a whole. But that’s why I think we need to emphasize and maybe in the executive summary in this section, or whatever it’s called, that our first ...
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