kathrynkl@aol.com writes "Yesterday, the House Financial Services Committee held a hearing on Whois titled “ICANN and the Whois Database: Providing Access to Protect Consumers from Phishing." NTIA, FTC, Electronic Privacy Information Center (EPIC), the Financial Services Roundtable and the Software and Information Industry Assoc. (SIIA) all testified. I am very happy to say that the privacy issues got a great airing – and not just from EPIC.

On the first panel sat John M. R. Kneuer, Acting Assistant Secretary for Communications and Information, and he read the traditional USG position: “The Department of Commerce strongly supports continued, timely access to accurate and publicly available WHOIS data contained in the databases of information identifying registrants of domain names.” (all quotes are from the written testimony).

What came as more of a surprise is that the Federal Trade Commission broke ranks with the rest of US Government. Eileen Harrington, Deputy Director of the Bureau of Consumer Protection, said: “The FTC, as the primary enforcement agency for U.S. consumer privacy and data security laws, is very concerned about protecting consumers’ privacy. Thus, the Commission has always recognized that registrants engaged in non-commercial activity may require some privacy protection from public access to their contact information, without compromising appropriate real-time access by law enforcement agencies.”

Marc Rotenberg, President of EPIC, drove home the critical point that consumers fall on both sides of the Whois issue, including the millions of domain name registrants whose personal data is disclosed (without any choice) in the Whois directory: “With identity theft the number one crime against consumers in the United States, there is understandable concern about the improper disclosure of personal information on the Internet. The WHOIS database performs a critical function by helping to ensure the security and stability of the Internet. But making the data in WHOIS available to anyone without any accountability creates real risks to the privacy and security of Internet users.”

        Even for this author, a veteran of the Whois Task Force for over four years, there were some new and surprising things said in the hearing. Mark Bohannon, Senior VP of SIIA, in Q&A, said that human rights groups should not register domain names if they do not want to reveal all of their personal data (even if it meant their arrest in countries that bar organizing for democratic reforms), and added that he seriously questioned whether human rights organizations would even want to use websites for these purposes. Clearly Bohannon does not live in the same world I do – one where human rights and free speech groups gravitate to the gTLDs because the political and personal speech they post online (and very much want people to see) is not allowed in their own countries. It is information posted at great personal risk, and to me, is the highest form of the Internet. When Rotenberg questioned Bohannon about whether his clients really supported limiting who has access to domain names and websites, Bohannon retracted the statement.

        Congressman Pearce raised his teenage granddaughter and her possible access to websites, even with noncommercial content, that he did not approve of. Didn’t all the panelists support a utility that would allow anyone, at any time, to click on a domain name and go directly into the Whois to find out who was sending the message or posting the website? Rotenberg responded: won’t the Congressman be dismayed if his teenage granddaughter, starting up a website, was forced to disclose her name, home address, personal telephone and personal email for all to see? Cong. Pearce responded that if she was posting a website and holding her ideas out to the public, she should be fully identified.

        I wonder whether the Congressman has heard of the right to private and anonymous political speech protected by the First Amendment? Has he read the decision of McIntyre vs. Ohio Elections Commission (Supreme Ct 1995) which holds up anonymous political speech as a way of expressing minority views – and input critical to a free society? Does it matter that the policies he advocates would bar the next Mark Twain or George Sand – people writing under pseudonyms and pennames to express important ideas in way that would not lead immediately back to them and their families?

        Fascinating reading at the Committee’s hearing website. All testimony is posted.

Kathryn Kleiman
Co-Founder, ICANN’s Noncommercial Users Constituency
Longtime member, ICANN’s Whois Task Force"