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Internet Corporation for Assigned Names and Numbers

Introduction

Whois data is an important resource to Internet users including registrants, registrars, businesses, ISPs, intellectual property holders, and governmental law enforcement and consumer protection agencies. The DNSO Names Council (now GNSO Council) established a Whois Task Force in February 2001 in order to study and, as appropriate, formulate recommendations on Whois policies.

On 20 February 2003, the GNSO Council accepted and forwarded to the ICANN Board a Final Report of the GNSO Council's Whois Task Force on Whois Data Accuracy and Bulk Access to Whois Data. (Other issues discussed by the Task Force, such as privacy protections for data subjects, will be presented in separate "issues reports" that will form the basis for further policy-development under the GNSO Council's direction. The issues reports will be published for discussion by the GNSO at the ICANN meetings in Rio de Janeiro.)

The Whois Task Force's Final Report on Accuracy and Bulk Access includes four new consensus-policy recommendations. Two of these recommendations are intended to enhance data accuracy, and two limit the uses that may be made of Whois data obtained under the bulk-access provisions of the registrar accreditation agreements:

1. At least annually, a registrar must present to the Registrant the current Whois information, and remind the registrant that provision of false Whois information can be grounds for cancellation of their domain name registration. Registrants must review their Whois data, and make any corrections.

2. When registrations are deleted on the basis of submission of false contact data or non-response to registrar inquiries, the redemption grace period – once implemented – should be applied. However, the redeemed domain name should be placed in registrar hold status until the registrant has provided updated Whois information to the registrar-of-record.

3. Use of bulk access Whois data for marketing should not be permitted. The Task Force therefore recommends that the obligations contained in the relevant provisions of the [Registrar Accreditation Agreement (RAA)] be modified to eliminate the use of bulk access Whois data for marketing purposes. The obligation currently expressed in section 3.3.6.3 of the RAA could, for instance, be changed to read as follows: "Registrar's access agreement shall require the third party to agree not to use the data to allow, enable, or otherwise support any marketing activities, regardless of the medium used. Such media include but are not limited to e-mail, telephone, facsimile, postal mail, SMS, and wireless alerts." The bulk-access provision contained in 3.3.6.6 of the RAA would then become inapplicable.

4. Section 3.3.6.5 of the Registrar Accreditation Agreement currently describes an optional clause of registrars' bulk access agreements, which disallows further resale or redistribution of bulk Whois data by data users. The use of this clause shall be made mandatory.

This paper summarizes the history that led to completion of the task force's Final Report on Accuracy and Bulk Access, and the issues for discussion at the Public Forum and consideration by the Board.

Written comments are invited. They should be submitted no later than Monday, 24 March 2003 by sending an e-mail to <whois-comments@icann.org>.

I. History

A. Task Force Actions and Reports

The Task Force undertook significant efforts to develop mechanisms to seek consultation with the broad community, which have included conducting a survey which received 3,035 responses; analyzing, publishing, and presenting the findings of the survey; presenting preliminary recommendations for public comment and at ICANN meetings for discussion by the Names Council and the community, and finally, undertaking further dialogue with interested parties to take additional comments on the draft recommendations which the Task Force developed.

Each stage of the Task Force's work has included publication and presentations. Comments have been received and taken into account as the next stage of work of the Task Force was developed.

The Whois Task Force produced an Issues report for public comment on 25 June 2002.

After an extensive comment period, it posted the first Interim Report of the Names Council's Whois Task Force on 14 October 2002. That report included recommendations regarding whether ICANN should seek to modify the Whois policy, inviting comment from the DNSO Constituencies, the General Assembly, and the public at large. The Interim Report primarily focused on recommendations which were identified in the Final Report on the Survey, presented at the ICANN meetings in Bucharest in June 2002.

The Interim Report identified some specific policy recommendations as well as outlined ideas for undertaking further work on the Whois issues. Four key areas were identified and given interim policy recommendations:

1. Accuracy of the data contained in the Whois database.

2. Uniformity of data formats and elements across various TLDs and registrars, including ccTLDs.

3. Better searchability.

4. Better protection of data subjects from marketing use of the data contained in the Whois database.

In the Interim Report, the Task Force proposed that the focus of short-term policy development should be on accuracy (area 1) and protection of data subjects (area 4). On some aspects of these two areas, the Task Force concluded that consensus and support could be identified relatively easily and quickly, while recognizing that some longer-term work activities would be appropriate. In contrast, the Task Force concluded that uniformity (area 2) and searchability (area 3) called for mid-term and long-term work to identify points of consensus.

After extensive public discussions, the Task Force posted a Final Report called Policy Report of the Names Council's Whois Task Force – Accuracy and Bulk Access for comments on 30 November 2002 that pursued the short-term priorities envisioned in the Interim Report. The 30 November 2002 Final Report was discussed by the DNSO's Names Council at its Amsterdam meeting in December 2002. At that meeting, the Names Council reopened the report for further comment by constituencies and the Internet community. In addition, the Council established a Whois Implementation Committee consisting of registrars, registry operators, two members of the Whois Task Force, and a representative from the non-commercial users constituency.

The Whois Implementation Committee Report stated that some of the recommendations were not implementable in their current form and recommended some changes that were consistent with the intent to improve accuracy and reduce the use of bulk Whois for marketing. Taking the implementation report into account, the Whois Task Force revised its 30 November 2002 report. The resulting report (amended on 19 February 2003), incorporates an analysis of the Whois implementation committee report, and addresses further public comments received since the December 2002 meeting in Amsterdam.

B. GNSO Council Action on 20 February 2003

The GNSO Council (which replaced the DNSO Names Council when the New Bylaws became effective on 15 December 2002) considered the Final Report of the Whois Task Force, with its analysis of implementation methods and impacts as well as the additional public and registrars constituency comments, at its telnce on 20 February 2003. At that meeting, the GNSO Council accepted the Final Report by 21 votes in favor and 3 votes against (all three opposing votes were cast representatives of the Non-Commercial Users Constituency) and decided that it should be forwarded to the ICANN Board as a consensus-policy recommendation.

(Note: the Interim At-Large Advisory Committee submitted a statement to the GNSO Council shortly before the meeting. It appears in the minutes of the GNSO Council meeting.)

II. Board Consideration

Under the ICANN Bylaws, the GNSO is responsible for developing and recommending to the ICANN Board substantive policies relating to gTLDs.

The GNSO is intended to follow the Policy Development Process (GNSO-PDP) that appears as Annex A to the New Bylaws that became effective on 15 December 2002, but the transition to that process is still underway. Because consideration of the Whois issue occurred in large part before 15 December 2002, those procedures were not available during most of the task force's work.

A. Requirements of the GNSO-PDP

Nonetheless, the basic requirements of item 11 of GNSO-PDP can be applied to GNSO Council Reports to the Board recommending adoption of policies. GNSO-PDP item 11 lists the following report elements:

a. A clear statement of any Supermajority Vote recommendation of the Council;

b. If a Supermajority Vote was not reached, a clear statement of all positions held by Council members. Each statement should clearly indicate (i) the reasons underlying each position and (ii) the constituency(ies) that held the position;

c. An analysis of how the issue would affect each constituency, including any financial impact on the constituency;

d. An analysis of the period of time that would likely be necessary to implement the policy;

e. The advice of any outside advisors relied upon, which should be accompanied by a detailed statement of the advisor's (i) qualifications and relevant experience; and (ii) potential conflicts of interest;

f. The Final Report submitted to the Council; and

g. A copy of the minutes of the Council deliberation on the policy issue, including the all opinions expressed during such deliberation, accompanied by a description of who expressed such opinions.

B. Compliance with the GNSO-PDP Requirements

The GNSO Council Report contains the following elements in line with item 11 of the GNSO-PDP:

a. The recommendations of the Final Report of the Whois Task Force were approved by the GNSO Council with 21 votes in favor and 3 votes against. This meets the GNSO-PDP's definition of a Supermajority Vote.

b. Since the report was approved by a Supermajority vote, Item 11(b) (a statement of all council member positions) is not applicable.

c. The task force's Final Report includes impact analysis statements from two constituencies. The Whois Implementation Committee, consisting of registrars, registries, two members of the Whois Task Force, and a representative from the Non-Commercial Users Constituency, also analyzed and reported on the impact of the recommendations. Each constituency is invited to provide its own analysis of the expected impact for consideration by the ICANN Board and community in advance of the ICANN meetings in Rio de Janeiro.

d. The Whois Task Force and the Implementation Committee considered the question of implementation time periods in the course of their discussions. The report does not envision any technical changes that would take significant time to implement. Policy and legal implementation details and timelines will be discussed in a forthcoming staff report to the Board.

e. No outside advisors were relied on in preparing the comments provided in the Final Report.

f. The Final Report of the Whois Task Force approved by the GNSO Council on 20 February 2003 is posted on the ICANN website, and

g. The minutes of the GNSO Council's deliberation prior to approving the Transfers report are available at <http://www.dnso.org/dnso/notes/20030220.GNSOteleconf-minutes.html>.

III. Board Actions

The Task Force's Final Report contains four "Consensus Policies" concerning accuracy and bulk access to Whois data. It also contains "Recommendations to ICANN and Registrars" addressing the four issues areas, which are not proposed to be adopted as consensus policies.

Because the report was supported by a Supermajority Vote of the GNSO Council, the provision of item 13 of the GNSO-PDP applies. That provision states that "the Board shall adopt the policy according to the Council Supermajority Vote recommendation unless by a vote of more than sixty-six (66%) percent of the Board determines that such policy is not in the best interests of the ICANN community or ICANN." In the event that the Board determines not to approve the recommendations, it must return to the GNSO Council a "Board Statement" articulating the reasons for its determination. The GNSO-PDP then establishes a process for consultation between the Board and GNSO Council to resolve any differences.

In the event that the recommendations are adopted by the Board as policy, the Board will give ICANN staff appropriate direction for implementation.

IV. Public Comment Invited

Comments are invited from all concerned on the Final Report and Recommendations of the GNSO Council's Whois Task Force Final Report, on the GNSO Council's recommendations, and on the actions that the Board should take. Comments may be submitted electronically until Monday, 24 March 2003, by sending them to <whois-comments@icann.org>. Submissions will be archived at <http://forum.icann.org/whois-comments/>.

In addition, a portion of the ICANN Public Forum on Wednesday, 26 March 2003, in Rio de Janeiro, Brazil, will be devoted to public discussion of the Whois issues.