2007-12-18 - .TEL Contractual Amendment

Kurt Pritz introduced the topic and noted that the Board has discussed the proposed amendment to the TELNIC contract at various stages. The proposed amendment was evaluated by staff in three ways - as a new registry service via the Registry Services Evaluation Policy also known as the Funnel process; as a request under the draft Procedure for Handling WHOIS Conflicts with Privacy Law; and as a contract amendment requiring public posting, opportunity for comment and Board approval. This process involved extensive community consultation including the UK GAC representative, the UK Information Commissioner's Office, the IP constituency, At-Large and other parts of the community. This resulted in a contract amendment that enabled TELNIC to move forward and an amendment that apparently complies with UK law and is also close to existing Whois contractual requirements. There have been three amendments proposed since the previous public posting of the Telnic proposal that are described in the accompanying documentation.

Susan Crawford noted that the reasoning for the amendments is very clear and she will support them. However, she noted the process for evaluating the amendment was unfair that she wanted her concerns about her view of the process that the proposed amendment underwent be made part of the record. Her comments, which she asked be added from an email that she sent to the Board were as follows:"There wasn't a predictable process from a registry operator's point of view, and this is the kind of ad hoc behavior on ICANN's part that triggered the VeriSign lawsuit. That lawsuit led to the institution of a registry services "funnel" - but what's the process for non-registry service amendments?

Here is the problem, as I see it. Based on advice it received from its national regulator, Telnic proposed in February or April of this year (the document bears both dates) that it (1) charge a small fee (as .NAME does) for (2) one-off access to personal information about natural person-registrants who (3) had not opted into (agreed affirmatively to) the public display of this personal information.

Now, several months later, after objections from the IP community, we have an amendment that says requestors can have (1) free (2) blanket (one-time assertion of need is enough) access to personal information about natural person-registrants who (3) have failed to opt *out* from the public display of private information (have failed to say that they want their information shielded from public view).

The problem is that Telnic probably had no idea that its proposed amendment to its contract with ICANN would be "unacceptable" and could not have predicted how long this would take. I don't see why the initial proposal couldn't have been accepted - it seems quite similar to what .name has. I don't understand why a registry operator can't charge a small fee for access to this data. The fee provides an additional speed bump to abuse that seems useful. I don't understand why "monitoring" businesses that want to ensure that their raw material is free get to require that ICANN ensure that this material is free. I also don't understand why the opt-in had to be changed to an opt-out.

More importantly, I don't see why a registry operator should have to go through this kind of ad hoc process for an element of its contract that is not a consensus policy. (Whois was made up and applied to the registries from the beginning; it was never subject to a consensus policy process, and indeed it appears that there is no consensus in support of whois in existence right now.)

As I say, I plan to vote for this amendment. But we have to fix the way these amendments are processed, and I expect this to change in the coming year."
The Chair noted for new Board members that they are able to have statements recorded in the minutes. He asked the Secretary and General Counsel to ensure the points from her email was incorporated in the minutes.

Jean-Jacques Subrenat advised that he shared Susan's concerns as did Steve Goldstein particularly in light of the introduction of new gTLDs and the prospect of coming up with special procedures every time.

The Chair noted that there was nothing in this process that will act as a precedent. This issue arose in an unusual context and at a time when the WHOIS conflicts with national law procedure was being considered.

Rita Rodin noted that she is TELNIC's counsel and that she would abstain from voting on this issue. Despite her noted conflict she did indicate on the record that she agreed with the sentiments raised regarding the process. She also noted that TELNIC had considered the WHOIS 'opt in' to be something that might be attractive to registrants from a business model perspective, while still providing parties who demonstrated a need for information with the ability to receive it. She hoped that in developing a process going forward, that there would be flexibility to take into account new business models for new TLDs. She also hoped that the current WHOIS national law process could be finalized as soon as possible so as to bring clarity to the process and community.

Paul Twomey sought clarification on what element of the process were noted as allegedly unfair. Susan Crawford advised that the original proposal contained a small fee for access to information for registrants not to opt out of having information presented, would have to affirmed information to be displayed for information to be available. Several months later the proposal is something opposite---the unfairness is TELNIC has no leverage to request from ICANN what is quite reasonable, WHOIS had not been a consensus policy when the terms were developed by DOC when setting up the contract. They should have been allowed with very little change and the process followed struck her as unfair.

The Chair posed the question: "you don't think the process of negotiation and consultation regarding the different position was fair"?

Susan Crawford responded that she was not sure much flexibility in what to agree with, was available to the registry.

Paul Twomey noted that Telnic put forward positions which were published for public comment in accordance with Board public comment principles, comments received sought clarification of the UK Information Commissioner's Office advice and that clarification resulted in the proposal presently in front of the Board which has TELNIC's support.

Wendy Seltzer noted that she also has concerns with process and would also categorize it as unfair as early comments provided on the issue were not reflected in latter communications.

The Chair reflected that there was no objection to the outcome but given the concerns about the process it would be best to discuss these concerns in the context of the agenda item relating to WHOIS and national laws.

Rajasekhar Ramaraj moved and Bruce Tonkin seconded the following resolution:

• Whereas, Telnic has submitted an amendment to Appendix 1, Appendix 5 and Appendix S, part VI to limit the public display of Whois information for .TEL registrants.
• Whereas, ICANN has evaluated the proposed amendment in three ways: 1) as a new registry service via the Registry Services Evaluation Policy; 2) as a request under the draft Procedure for Handling Conflicts with Whois and Privacy Law; and 3) as a contract amendment requiring public comment and Board approval.
• Whereas, the evaluation under the threshold test of the Registry Services Evaluation Policy found no likelihood of security and stability or competition issues associated with the proposal.
• Whereas, ICANN consulted with the UK GAC representative and the UK Information Commissioner's Office as the relevant national government authority for advice on the request for derogation from ICANN gTLD Whois policy.
• Whereas, ICANN staff conducted good-faith negotiations with Telnic to modify the proposed amendments in accordance with its procedures and based on public comments raised by the ICANN community.
• It is hereby resolved (__.2007) that the .TEL amendment is approved, and the President and General Counsel are authorized to take such actions as appropriate to implement the amendment.

Dennis Jennings sought clarification on what was being proposed.

Kurt Pritz advised that the Board is voting whether to approve a new appendix S that revises TELNIC's WHOIS obligations from the current agreement.

Paul Twomey questioned whether it would be useful to consider some amendment to the resolution language, that throughout this negotiation which has been asking for a deviation from an existing policy that we have been clear with the applicant that this is a standalone request that comes from their jurisdiction, unique circumstance to date and ask the General Counsel to draft something to this effect.

The Chair agreed it would be useful to make this clear. John Jeffrey provided proposed wording from the .NAME agreement. Susan Crawford and Rita Rodin requested that the language not be drafted at his moment and that time be allowed to consider drafting. There was additional discussion over the proposed language. The additional proposed language was circulated and was further amended following questions and discussion by the Chair, Bruce Tonkin, John Jeffrey, and Susan Crawford.

Rajasekhar Ramaraj moved and Bruce Tonkin seconded the following resolution:

• Whereas, Telnic has submitted an amendment to Appendix 1, Appendix 5 and Appendix S, part VI to limit the public display of Whois information for .TEL registrants.
• Whereas, ICANN has evaluated the proposed amendment in three ways: 1) as a new registry service via the Registry Services Evaluation Policy; 2) as a request under the draft Procedure for Handling Conflicts with Whois and Privacy Law; and 3) as a contract amendment requiring public comment and Board approval.
• Whereas, the evaluation under the threshold test of the Registry Services Evaluation Policy found no likelihood of security and stability or competition issues associated with the proposal.
• Whereas, ICANN consulted with the UK GAC representative and the UK Information Commissioner's Office as the relevant national government authority for advice on the request for derogation from ICANN gTLD Whois policy.
• Whereas, ICANN staff conducted good-faith negotiations with Telnic to modify the proposed amendments in accordance with its procedures and based on public comments raised by the ICANN community.
• Whereas, the Board concludes that the requested modifications are justified by the unique business and legal circumstances of the .TEL top-level domain, and the approval of these modifications should not be viewed as establishing a precedent that applies to other circumstances;
• It is hereby resolved (__.2007) that the .TEL amendment is approved, and the President and General Counsel are authorized to take such actions as appropriate to implement the amendment.

A voice vote was taken of all Board Members present and the Board Members present approved the motion by a vote of 13 to 0. Rita Rodin abstained from voting as she acts as TELNIC's counsel.