Draft Comments on Proxy Services

[KathrynKL at AOL.COM]

To All:
Thanks for all the responses to my questions about pen names and proxy domain 
name registration services.  Your input was very helpful.  

Below is a draft I have prepared for NCUC's response to questions #3 about 
proxy services.  In researching these questions, I found that there is really no 
anonymity and very little privacy protection from these proxy services -- 
they will quickly hand over the domain name registrant's data if the company 
asking is big enough, and for any law enforcement request (with or without due 
process).  I have used a few examples -- if you have any more please let me know.

Please take a look, and let me know if you have changes or corrections.  We 
should submit these by Wednesday.  Thanks, Kathy 
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TF2 Questions to All Constituencies
Noncommercial Users Constituancy Comments on 
Question 3 Re: “Anonymous Domain Name Registrations.”  

Preface:
The Noncommercial Constituency believes that the right to anonymous 
communication – on the Internet and elsewhere – is a fundamental human right.   For 
countries that value democracy, anonymity is often the way that a political 
minority publishes its dissenting or minority opinions that argue for a change of 
government official and their policies.  The Internet has become a major voice 
for those who engage in political dialog.

For countries that do not value democracy, the need for anonymity is even 
greater.  It is anonymity that protects the human rights groups and their members 
who research and publish about torture, jailed dissidents, corruption, 
bribery, election rigging and other crimes against their people.  The Internet has 
become a major voice for those who trumpet human rights abuses.

For those who value cultural and personal freedom, the need for anonymity is 
great.  Since the beginning of writing, the use of pseudonyms (pen names) has 
allowed writers to publish their candid literary critiques of their societies 
(e.g., Moliere, Voltaire, George Sand, Mark Twain).  It has allowed 
politicians to change their name to more popular variations (e.g., German chancellor 
Willi Brandt, born Herbert Frahm) and actors to assume more pleasing titles 
(e.g., Tom Cruise, born Thomas Cruise Mapother IV and Meg Ryan, born Margaret 
Hyra).  The Internet has become a major voice by which people share their plays, 
stories, ideas, and concerns. 

The tradition of anonymity and privacy in other mediums means that online we 
should not be forced to relinquish our names, home addresses, home phone 
numbers and personal email as a “cost” of posting our expression. 

The TF2 Questionnaire asked:

A. Please comment on any mechanisms that you are aware of to allow anonymous 
domain registrations, or to limit the amount of contact data made publicly 
available through Whois? Please also comment on the conditions under which the 
registrant's anonymity is lifted when these services are used. 

    Overview:  The Noncommercial Constituency is aware of no mechanisms that 
allow (and maintain) anonymous domain registrations.  We are aware of a few 
services that limit the amount of contact data provided publicly through the 
WHOIS database, but submit that these groups provide little true privacy or 
protection.

    Discussion: Because it is the stated requirement of ICANN that Registrars 
must collect and provide public access to domain name registrant data, 
including name, address, phone, fax and email.  (Registrar Accreditation Agreement 
Section II (F)), the vast majority of ICANN Registrars do so without providing 
options for privacy or anonymity.  There are a few companies that offer some 
level of privacy protection, but their efforts, to the best of our knowledge do 
not rise anywhere close to anonymity protection for protected noncommercial 
and commercial speakers.  

    The companies we know that provide a level of privacy in domain name 
registration offer a “proxy” service.   For an additional fee, the “proxy provider
” will place its own information in the Registrant, Administrative Contact, 
and Technical Contact fields.  Unfortunately, we have found that these services 
offer minimal privacy protection, but in some cases great exposure. 
        `   
1.      Companies that Offer Domain Name Registration Services; Conditions 
Under Which Anonymity is Lifted

    The best-known company today offering domain name proxy services is  
ICANN-Accredited registrar Go Daddy based in the United States.  Marketing its 
privacy service under the business name “Domains by Proxy,” Go Daddy urges:  “
Make your domain registration private! Protect yourself from spam, scams, prying 
eyes and worse.”  For an extra fee of $12 a year (currently marked down to $9 
a year), Domains by Proxy will enter its name and contact information in the 
WHOIS data, and the domain name registrant believes he/she/it is purchasing 
privacy protection.

    At the outset, there is clearly no protection for anonymous speech in the 
Domains by Proxy registration because anonymity means that the speaker does 
not have to disclose his/her/its identity.  Domains By Proxy, however, makes 
clear in its Agreement that the Registrant must provide his/her/its full name, 
address, email, phone and fax numbers to Go Daddy as a condition of 
registration -- subject to loss of the domain.  

       “In exchange for DBP [Domains By Proxy] becoming the Registrant of 
each    domain name registration on Your behalf, DBP shall keep Your name, postal 
    address, phone and fax numbers confidential, subject to Section 4 of this 
    Agreement.”  
       Domain Name Proxy Agreement (DNPA), Section 1.   
www.domainsbyproxy.com/popup/DomainNameProxyAgreement.htm#gd

    Further, the Domains by Proxy agreement clearly gives Go Daddy the 
ability to fully disclosure a registrant’s personal data without notice to the 
Registrant, without an opportunity to challenge the disclosure with Go Daddy or 
challenge the subpoena in court, and in situations without definitive proof of 
wrongdoing or illegality.  

    According to its Agreement, Go Daddy gives itself “the absolute right and 
power, in its sole discretion and without any liability to You whatsoever” to 
“close Your Account” and “reveal Your name and personal information” for 
numerous reasons, including:
    –   “requests from law enforcement (with or seemingly without due 
process) and 

       - “if the domain name DBP registers on Your behalf violates or 
infringes a third       party’s trademark, trade name or other legal rights” (with 
or seemingly             without any legal decision).  DNPA, Section 4. 
    
    History bears out Go Daddy’s commitment to the terms of its Agreement.  
In April 2003, Go Daddy disclosed the personal information of Re-Code.com on 
the demand of Wal-Mart, without a court order and without prior notice to the 
Registrant.  Wendy Seltzer, Staff Attorney with the Electronic Frontier 
Foundation, reported with shock the disclosure in her blog:   

       “On April 10th, Re-Code [registrant] was informed that their anonymity 
service     agreement had been terminated by Domains by Proxy – on the mere 
allegation    of unlawful activity.  Unfortunately, that means the anonymizing 
service fails just   when it’s needed most.  It fails to protect unpopular 
speakers from the chilling      effect of threats.  We still need anonymous 
domain name registration for those    cases.”  

    
    2.      Other Services Offer Even Greater Exposure for Domain Name 
Registrants

    Yet, Domains by Proxy may be the best example of proxy services that we 
have.  Go Daddy is a well-respected company, and we expect it would honor 
requests for transfer and renewals by its Domains by Proxy customers.

    Unfortunately, the deep need for privacy and anonymity in domain 
registration is driving human rights organizations and others into the hands of much 
less scrupulous businesses. These third companies are not ICANN-accredited 
registrars, but contract with Registrars for domain names on behalf of their 
customers.   

    Those registering domain names under our current system are at great 
risk.  Because in this “proxy” model, the third-party company (“private proxy 
provider”) places its name is in the WHOIS information on behalf of the 
Registrant.  If the Registrant wants to renew the domain name or transfer it to another 
Registrar or registration company, it is completely at the will of the 
private proxy provider.  

    Last year in the US, this type of situation turned into disaster for 
thousands of domain name holders working with third-party proxy company that went 
bankrupt.  The Registrants, mostly individuals, small organizations and small 
businesses seeking to keep their home information out of the global databases, 
lost all ability to control their domain names.  They could not renew or 
transfer them because the proxy company failed to respond.  Hundreds of complaints 
went to the state Attorney General’s office.  Dozens of domain names (if not 
more) were lost, together with their websites, listservs and the array of 
noncommercial and commercial expression that the registrant offered.  The 
situation caused a tremendous amount of hardship, lost expression, and lost 
businesses.  It is not the price that an organization or individual should have to pay 
for privacy and anonymity.  

    Conclusion:

    Privacy is a right, not a privilege.  The NCUC submits that, to the 
extent allowed by local law, ICANN-Accredited Registrars and thick Registries 
should be allowed and encouraged to offer privacy and anonymity as a regular 
feature of the domain name registration process.   To be consistent with the 
protections of human rights, freedom of expression and due process, these privacy and 
anonymity protections should be real -- not subject to the limitations of 
fine print or the intimidation of a large company. 
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