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The report ignores the obvious fact that
ICANN has ALREADY "developed policy concerning all
those issues."
Its registrar accreditation and
registry contracts impose upon suppliers and users
complete and accurate contact data, upon penalty of
losing one's registration; they require bulk access
to WHOIS data and permit free harvesting of WHOIS
data from port 43. Both users and registrars are
screaming about clear abuses of these requirements.
If these aspects of ICANN's contractual reginme are
not within its scope, what is?
Perhaps the author of the report simply is afraid of
taking a stand on an issue that divides the
Council and has great significance. Perhaps timidity
and CYA is the explanation of this report, rather
than deviousness. Still, one must be aware of what
the report accomplishes. By taking a microscopic
approach to the issues and inflating a list of
discrete issues into an obfuscating recipe, the report makes the task of change seem daunting. The effect is to create a powerful
bias toward keeping the current policy in place.
Unless the registries and registrars take initiative, the generally supine GNSO Council will almost certainly follow the staff's recommendation and initiate another 2-year process of inconclusive "fact-finding."
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WHOIS Privacy Issues Report Smokescreens Problem
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I was amused to see that one of the primary references used by the report was the Whois Issues Paper by the Whois task force [icann.org].
It is an axiom of privacy policy worldwide that personal data should be used only for the purpose for which the person disclosed his or her information.
In terms of DNS registrations, the purpose that a person discloses his/her information is simply to obtain a registration for a domain name. A person registering for a name is not doing so for the purpose of facilitating trademark vigilantes or overhyped sales efforts.
Yet that report is confused - it lists the existing set of data miners as if those groups were, in fact, the purpose for which the personal data was disclosed.
The report errs in simply assuming that those existing uses are justified. And thus the report simply skips over the big hard question of whether there is enough social gain in any of those uses, taken individually, to use the personal information for a purpose different from that for which it was disclosed.
There were many good works on privacy written during the 1970s in the US and in Europe. See, for instance http://www.cavebear.com/nsf-dns/pa_history.htm [cavebear.com], and http://www.cavebear.com/nsf-dns/senate_report.htm [cavebear.com] ICANN ought to start with principles enumerated there and elsewhere. Facile justification of the status quo will only further erode ICANN's credibility.
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[ Reply to This | Parent
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All of the discussion concerning what ICANN will do to make sure registrants of domains have given accurate information in their whois records is not going to matter since United States Federal Legislation protects the right of registrants to anonymity in the use of incorrect whois information.
This protection is given through the - in rem - provision of the acpa act of 1999.
The - in rem - provision of the acpa act of 1999 was specifically designed, as explained by Orin Hatch, author of the bill, along with Patrick Leahy, for two reasons.
To allow trademark owners to recover domain names through a court action when the owner of the domain cannot be located.
In addition, the second reason being, to protect the anonymity of "dissidents."
The government recognizes "dissidents and others who are online incognito for legitimate reasons might give false information to protect themselves."
These are the words of Orin Hatch explaining the - in rem - provision of the acpa act of 1999 to the United States Senate Committee on the Judiciary, on June 29, 1999.
He further explains.
"Additionally, some have suggested that dissidents and others who are online incognito for legitimate reasons might give false information to protect themselves and have suggested the need to preserve a degree of anonymity on the Internet particularly for this reason. Allowing a trademark owner to proceed against the domain names themselves, provided they are, in fact, infringing or diluting under the Trademark Act, decreases the need for trademark owners to join the hunt to chase down and root out these dissidents or others seeking anonymity on the Net. The approach in the substitute is a good compromise, which provides meaningful protection to trademark owners while balancing the interests of privacy and anonymity on the Internet."
If ICANN were to instruct any registrar in any country to take away a domain name from any registrant because of inaccurate whois information they would be liable for denying the Civil Rights of free expression guranteed by the US Constitution of that individual.
Since ICANN is in the US they are bound by US law and cannot override that with the proposed regulations that would take away a domain name from someone because of inaccurte whois information.
The entire statemnet can be seen at address
http://judiciary.senate.gov/oldsite/72999oh3.htm
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WHOIS Privacy Issues Report Smokescreens Problem