[nc-impwhois] Response from Louis Touton regarding the 15 day period

["Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au>]

It would appear from below that the 15 days is not a hard limit, and that the implementation committee proposal with regard to 30 days does not transgress the current contracts.

Regards,
Bruce Tonkin


-----Original Message-----
From: Louis Touton [mailto:touton@icann.org]
Sent: Friday, January 31, 2003 4:02 PM
To: nc-whois@dnso.org
Cc: Dan Halloran; Bruce Tonkin; roessler@does-not-exist.org
Subject: [RE: [nc-whois] FYI - ALAC discussions on 15 days issue]


Marilyn,

In our recent telephone conversation, we discussed that it might be
useful to the Whois-policy-development process to summarize the
currently effective requirements concerning what has been referred to as
the "15-day period."  Some of the comments about the requirements
indicate that the current requirements are misunderstood, even by
sophisticated analysts.  (Compare, for example, Bret Fausett's 8 January
2002 comment on the Task Force's Whois report at
<http://dnso.dnso.org/dnso/dnsocomments/comments-whois/Arc02/msg00021.html>
with his 11 January correction to that comment, noting that he had
confused two different 15-day periods.  The correction is copied at the
bottom of this message.)  Perhaps some level of confusion is inevitable
concerning agreements that have many provisions with complex
interworkings.  A clear understanding of the current requirements,
however, should be helpful in assessing the merits of various suggested
policy changes.

Subsection 3.7.7.2 of the current (May 2001) registrar accreditation
agreement requires that registrars include in the registration
agreements they enter with their customers a provision that *permits*
the registrar to cancel a domain-name registration in either of three
circumstances:

    1.  The customer's "willful provision of inaccurate or unreliable
    information";

    2.  The customer's "willful failure promptly to update information
    provided to" the registrar; or

    3.  The customer's "failure to respond for over fifteen calendar days
    to inquiries by Registrar concerning the accuracy of contact
    details".

Condition (3) above, it should be noted, is only triggered when the
customer fails to respond to an inquiry; it is not triggered when the
customer responds to the inquiry but does not complete any corrections
to inaccurate or out-of-date Whois data within 15 days.  Unlike
conditions (1) and (2), which require willful transgressions on the part
of the customer, condition (3) is triggered without a specific showing
that the customer's failure to respond is willful, in recognition that
the ability to prove willfulness tends to be frustrated by a customer's
refusal to engage in dialog with the registrar.

Subsection 3.7.7.2 of the registrar accreditation agreement does not
*require* a registrar to cancel a registration in the event a customer
fails to respond within 15 days.  The current contractual structure of
requiring the registrar to retain the *right* to cancel if the customer
fails to respond in 15 days, but not requiring the registrar to
*exercise that right* is intended to give the registrar the flexibility
to use good judgment to determine what action should be taken upon a
customer's failure to respond to an inquiry about a Whois inaccuracy.
According to the theory of the current registrar accreditation
agreement, the appropriate course of conduct for a registrar varies
depending on a variety of factors--including the materiality and
severity of the inaccuracy, the customer's past conduct with respect to
correcting inaccuracies, the extent of harm to third parties, etc.
Where an inaccuracy is minor (e.g., an incorrect postal code), appears
inadvertent (e.g., transposed digits), and harms no third party (e.g.,
readily available means of contacting and locating the customer are
provided by the data that is given), the case for immediate action is
weak.  The contractual design is that in such cases the registrar, which
after all is motivated to promote good relations with its customer, will
not act precipitously. Where, on the other hand, it appears that a
customer has deliberately provided severely false Whois data and third
parties are being significantly harmed by the maintenance of the
registration with the inaccurate data, prompt action by the registrar is
appropriate.  Under the theory of the current registrar accreditation
agreement, the registrar is given discretion to act as appropriate in
the particular circumstance of the particular case.

The provision of the registrar accreditation agreement limiting the
registrar's discretion is subsection 3.7.8, which states in part:

   Registrar shall, upon notification by any person of an inaccuracy in
   the contact information associated with a Registered Name sponsored by
   Registrar, take reasonable steps to investigate that claimed
   inaccuracy. In the event Registrar learns of inaccurate contact
   information associated with a Registered Name it sponsors, it shall
   take reasonable steps to correct that inaccuracy.

This requirement that registrars "take reasonable steps" is intended to
reinforce the flexibility afforded to registrars that do not receive
responses from their customers.  As noted above, the time that a
registrar should wait for a response from its customer varies according
to the nature of the inaccuracy and the circumstances from which it
arose.  The current provision is based on the conclusion that a
requirement of reasonable action by the registrar is better than a fixed
timetable, while assuring that the registrar has the ability to cancel
after 15 days of no response in very serious cases.

These features of the registrar accreditation agreement are discussed in
the 10 May 2002 "Registrar Advisory Concerning Whois Data Accuracy",
posted at <http://www.icann.org/announcements/advisory-10may02.htm>,
which states in part:

   Once a registrar receives notification of an inaccuracy, Subsection
   3.7.8 requires the registrar to take "reasonable steps" to investigate
   and correct the reported inaccuracy. The term "reasonable steps" is
   not defined within the agreement; precisely what constitutes
   reasonable steps to investigate and correct a reported inaccuracy will
   vary depending on the circumstances (e.g., accepting unverified
   "corrected" data from a registrant that has already deliberately
   provided incorrect data may not be appropriate). At a minimum,
   "reasonable steps" to investigate a reported inaccuracy should include
   promptly transmitting to the registrant the "inquiries" concerning the
   accuracy of the data that are suggested by RAA Subsection 3.7.7.2. The
   inquiries should be conducted by all commercially practicable means
   available to the registrar: by telephone, e-mail, and postal mail.

Under this guidance, ICANN reviews registrar compliance based on a
standard of reasonable conduct by the registrar in the circumstances.
Where, for example, a registrar appears to "to routinely ignore reports
of inaccurate and incomplete contact data in its Whois database", ICANN
has taken enforcement action by presenting the registrar a formal notice
of breach.  See Letter from Louis Touton to Bruce Beckwith (3 september
2002)
<http://www.icann.org/correspondence/touton-letter-to-beckwith-03sep02.htm>.
Where such a notice of breach is presented, subsection 5.3.4 of the
Registrar Accreditation Agreement gives the registrar 15 working days to
cure the breach before proceedings to terminate the accreditation can
proceed.  This 15-working-day period, however, is a different one than
the 15-calendar-day period after which cancellation of a registration
becomes possible under a registration agreement due to a customer's
failure to respond to the registrar's inquiry about Whois inaccuracies.

I hope the above is helpful to the Task Force's review and development
of recommendations for Whois policy improvements.

Best regards,

Louis Touton
General Counsel

-------- Original Message --------
Subject: RE: [nc-whois] FYI - ALAC discussions on 15 days issue
Date: Thu, 30 Jan 2003 22:16:27 -0500
From: "Cade,Marilyn S - LGCRP" <mcade@att.com>
To: "Thomas Roessler" <roessler@does-not-exist.org>, <nc-whois@dnso.org>
CC: "Louis Touton (E-mail)" <touton@icann.org>,   "Bruce Tonkin
(E-mail)" <bruce.tonkin@melbourneit.com.au>

A new data point.

I think that we may be misintrepreting wht the present requirement is.

Let's get the ICANN staff to tell us what the present obligation is..

I've cc'd Louie and if he can just online explain what the present
obligation is, we can work from there.

Thanks, all.

-------- Original Message --------
Subject: Re: Comment on 15 Day Response Requirement
Date: Sat, 11 Jan 2003 07:42:46 -0800
From: Bret Fausett <fausett@lextext.com>
To: <comments-whois@dnso.org>

I'd like to make a brief follow-up comment and clarification to the post
I submitted earlier this week:

http://www.dnso.org/dnso/dnsocomments/comments-whois/Arc02/msg00021.html

First, I understand that there are two provisions of the Registrar
Accreditation Agreement that provide fifteen (15) day response periods
for different actions. Section 3.7.7.2 requires registrars to include in
their registration agreements with registrants a response requirement
for queries about data accuracy. Section 5.3.4 provides registrars
fifteen (15) days to respond to notices of breach from ICANN. In my
original comment, I implied that Section 5.3.4 (which ICANN invoked in
September, 2002 to cure whois problems at Verisign Registrar) was what
was driving short response deadlines from registrars to registrants.

While I appreciate that the correct section for registrant response
deadlines is Section 3.7.7.2, the interplay between the two sections may
still be a cause of some registrars asking their registrants to respond
to registrar queries in a shorter time frame. At least my registrar
viewed the requirement of Section 3.7.7.2 as a maximum response time,
leaving it free to set a short time for my response. Possible solutions
might be (a) to provide registrar a longer response time under Section
5.3.4 (so they didn't feel required to make response time from their
registrants even shorter) or (b) to set a minimum response time for
registrants under Section 3.7.7.2, so registrars so longer have
discretion to set a shorter time.

Second, in my original post I wrote that it was my understanding that
ICANN logged only the IP address of the complainant. I now understand
that ICANN not only requires the name and e-mail address of the
complainant but that it also already utilizes the kind of confirming
methodology that I suggested. That's good news. At the same time,
additional steps should be taken to discourage fraudulent complaints. On
some level, fairness would indicate that some sort of symmetry should
apply between the sort of data that a registrant must provide for the
whois database and what a complainant must provide to make a complaint.
Similarly, it wouldn't be unreasonable to require the complainant to
provide as much authentication to the given registrar about his or her
identity as the registrant would have to provide to confirm his or hers
in responding to the complaint.

I also encourage ICANN and members of the Whois task force to think
further about ways to discourage fraud, not only in the whois database,
but also in complaints about the whois database.

Thank you.

Bret Fausett