Letter from J. Beckwith Burr to Louis Touton Regarding Amendment to Whois Provisions of .name Registry Agreement
(9 November 2002)
November 9, 2002
VIA E-MAIL AND FEDERAL EXPRESS
Louis Touton, General Counsel
Re: Request to Amend Registry Contract
I am writing on behalf of my client, Global Name Registry Limited, which operates the .name top-level domain (TLD) under an agreement with ICANN dated August 1, 2001 (the Registry Agreement). The Registry Agreement, and Appendix O thereto, obligate Global Name Registry to provide access to certain personal information about .name registrants (Registry Data). This letter constitutes Global Name Registry's formal request to amend Appendix O to the Registry Agreement, and to make conforming agreements in Appendix F and Appendix G.
Reason for Request
As you know, Global Name Registry's operation of the .name TLD is subject to the laws of the United Kingdom, including the Data Protection Act 1998 (the Act). Adopted to protect fundamental privacy rights long recognized in Europe, the Act limits the manner in which Global Name Registry is permitted to process Registry Data and restricts Global Name Registry's ability to transfer (including by making data available on the public Internet) such information to countries outside of the European Economic Area (excluding Hungary, Switzerland, and Canada, which have received adequacy determinations from the European Commission). The changes sought by Global Name Registry are intended to ensure that its operation of .name complies with the Act. The proposed changes are also intended to respond to increasing worldwide consumer concerns about personal privacy, which are especially relevant in .name, a TLD exclusively designed for use by individuals.
Proposed Contract Amendments
Global Name Registry proposes to replace the existing text of Appendix O to the Registry Agreement with the text set forth in Attachment 1 of this letter. In accordance with the revised text, Global Name Registry proposes to continue to provide four levels of access to Registry Data. The most significant changes are to the way the two most detailed levels, known as "Detailed" and "Extensive," are defined:
The access levels are described in greater detail in the attached documentation.
Requested Amendments Are Consistent with Existing ICANN Policy.
The Registry Agreement requires Global Name Registry to provide "free public query-based access to up-to-date information about domain-name and nameserver registrations maintained by Registry Operator in connection with the Registry TLD." (Registry Agreement §3.10.1.). The proposed amendments do not change this requirement: Any searcher willing to sign an agreement with Global Name Registry that (1) identifies a permissible purpose for which access is sought, and (2) enables Global Name Registry to hold searchers accountable for misuse of Registry Data, will receive a password to access the database.
Nor does Global Name Registry seek to further limit the purposes for which Registry Data may be used: ICANN's generic registry agreement specifically permits registry operators to prohibit the use of Registry Data for marketing, and it goes without saying that ICANN permits registry operators to forbid illegal uses of personal information about registrants in the top level domain they operate.
The modifications to Appendix O sought by Global Name Registry do not change ICANN policy and need not be the subject of an ICANN's consensus policy development process. While other top-level domains might make the same argument, we submit that .name is unique among top-level domains. The consequences of misuse of personal information can be particularly damaging to individuals, the only permitted registrants in .name.
ICANN has the Authority to Approve the Proposed Amendments.
Although the initial specifications for the data elements reported, format of responses to queries, data update frequency, query types supported, and protocols through which Global Name Registry provides access to Registry Data are contained in Appendix O, the Registry Agreement permits changes to such specifications with the "mutual written consent of ICANN and Registry Operator" or in connection with ICANN policy development. (Registry Agreement §3.10.1.) As Global Name Registry's proposed contract modifications are consistent with existing ICANN policy, the ICANN board has the necessary authority to accept the amendments.
The Proposed Amendments Reflect Public Input.
Notwithstanding the fact that ICANN has the authority to approve the modifications proposed by Global Name Registry in the ordinary course of contract management, the proposed amendments reflect considerable input from relevant stakeholders both inside and outside the ICANN community. Beginning in February of this year, Global Name Registry has discussed the proposed changes with members of the law enforcement community, intellectual property holders, privacy advocates, registry operators, registrars, and members of the technical community. Global Name Registry informally and formally briefed the Names Council's Whois Task Force, and met with the business, intellectual property, registry, and registrar constituencies of the DNSO. Global Name Registry has listened carefully to these stakeholders, and has modified its proposal to respond to concerns raised in these consultations. ICANN has received e-mails from the Registry constituency and the IP constituency regarding our request.
Most recently, in Shanghai, a registrar expressed concern about the proposed $2 fee for use of the "Detailed" search service, on the grounds that Global Name Registry should not profit from Whois searches related to customers of registrars. Global Name Registry does not expect the $2 fee to become a revenue source for the registry; rather, the fee is intended to discourage data mining by marketers and other casual and potentially criminal users. Nonetheless, Global Name Registry understands the concern, and has modified its proposed revisions to Appendix O to include the following provision:
In addition, Global Name Registry has made various revisions and included specific text on the basis of suggestions from interested stakeholders.
Global Name Registry now seeks the Board's prompt approval for the proposed contract modifications, and we request that this matter be placed on the agenda for the next telephonic meeting of the Board. In order to make our requested changes clear to the Board, we have attached (1) the proposed substitute Appendix O; (2) a description of the proposed changes; and (3) the text of the proposed "Extensive Agreement" to be used by Global Name Registry.
Global Name Registry appreciates your efforts to bring this matter to the Board in the very near future. Please contact me if you have any questions regarding the attached materials.
J. Beckwith Burr
cc: Francis Coleman, Vice President and General Counsel
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