This case poses a very clear question, which, to my knowledge, remains entirely unexamined in the foundational debates of ICANN: When does a demonstrably broad public interest outweigh an intellectual property interest?

What's unique about this case is that the public interest can be quantified. Outbound access for these 630,000 accounts shouldn't be a problem, as long as AT&T Broadband handles the technical transition well (heh...good luck). However, inbound traffic is a different kettle of fish: mail and web requests directed at 630,000 MediaOne users across the U.S. are jeopardized -- that is, are rendered unstable and insecure -- by this legal settlement.

And the payoff? None. None whatsoever. This Midwestern advertising company is going to need a world-class network infrastructure just to serve up all the SMTP 550 ("User unknown") and HTTP 404 ("Page not found") error messages once this domain is finally transferred. The only thing the domain will be "good for" -- for years, I'd wager -- is serving up porn-banner web pages.

Granted, the legal case that led to this settlement seems to be shrouded in mystery (the only mentions I know of are the Boston Globe story and the cryptic letter AT&T Broadband sent out to the affected users [this page, scroll down]). But one can only wonder where ICANN was while this legal fiasco was unfolding. After all, staff went out of their way to file an amicus curiae memorandum in Register.com, Inc. v. Verio Inc. case, which mainly involved spam. So why no memorandum in this case, given that the consequences pose a much more serious and direct threat to privacy than whois data? If indeed ICANN is concerned about security and stability, well, here's a real-live case. None of this anti-"populist" hoodoo "about any old terrorist around the globe getting to vote on how to run the DNS"; this is the real McCoy. So where was ICANN?

The answer seems clear enough. When Verio wanted to use register.com's whois data to spam people, they were jeopardizing ICANN's M.O. of parlaying whois policy into political support from the "intellectual property" taliban; ICANN couldn't risk that, so staff stepped into the court proceedings. But when an "intellectual property" interest smashes head-on into the privacy, security, and addressing stability of 630,000 users, ICANN is silent. Who cares if there are 630,000 of you? Merely admitting the possibility that your 630,000 interests might trump IPR claims could set a "populist" precedent.

Get the picture?

Anyway, the WHOIS figures in this in another important respect. If I desire presently registered domain names that may expire, I mine WHOIS looking for *@mediaone.net contacts. After their email starts bouncing there will be a lot of folks unaware their registrations are expiring so their domain names are more likely to subsequently become available than a random sampling.

With the continuing failure of email providers (EG: @HOME) for any number of reasons, this is a great opportunity for those who snap up expiring names (EG: see my XXX-piring namespace submission). The $napNames/Veri$ign WLS, and SFAICT all other, proposals do nothing to address this issue. We'll see (eventually, one presumes) what ICANN makes of the fuzzy moral-right claims of those having their domain names dropjacked, if I may coin a term. -g