WHOIS: ICANN Sacrifices Privacy for Shot at Independence

[Robin Gross]

Thanks for the added info, Milton!

Robin


Milton Mueller wrote:

>Robin:
>Prof. Geist may be a bit behind the discussion on this topic. When the
>JPA was released, on Sept. 30 both Board member Susan Crawford and the
>Internet Governance Project issued strong criticisms of the Whois
>provision in the new JPA. Moreover, a number of registry and registrars
>on the Whois task force expressed the same concerns.
>
>Based on this pressure, ICANN CEO Paul Twomey was forced to issue a
>disclaimer October 4 about the Whois clause, saying that it only
>requires ICANN to enforce the existing policy but does not prevent ICANN
>from changing it. See the ICANNWatch article here:
>http://www.icannwatch.org/article.pl?sid=06/10/04/2226203&mode=thread
>
>Like M. Geist, we remain deeply concerned (thought NOT surprised) by the
>fact that this highly prescriptive statement ever got into the JPA in
>the first place, but it is going too far to say that ICANN cannot change
>its policy or that the Whois Task Force's reforms cannot proceed.
>
>
>
>
>>>>Robin Gross <robin at ipjustice.org> 10/10/06 1:41 PM >>>
>>>>
>>>>
>Professor Geist has reviewed the recent agreement between the US
>government and ICANN and found a clause requiring ICANN to make no
>change on WHOIS policy.
>
>Robin
>
>http://www.michaelgeist.ca/content/view/1474/159/
>
>
>      ICANN Sacrifices Privacy for Shot at Independence
>
>	| Print |
><http://www.michaelgeist.ca/index2.php?option=com_content&task=view&id=1474&Itemid=159&pop=1&page=0#>
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>
>
>Tuesday October 10, 2006
>
>Appeared in the Toronto Star on October 9, 2006 as Web's Naming Body
>Barters Away Privacy <http://geisticannagreement.notlong.com>
>
>Appeared in the BBC on October 10, 2006 as Internet Privacy 'Sacrificed"
>
>By ICANN <http://news.bbc.co.uk/2/hi/technology/6036481.stm>
>
>Internet governance has attracted increasing attention in recent years
>as governments, business communities, and Internet users struggle to
>develop a model that adequately takes into account the concerns of all
>stakeholders. At the center of this debate is the Internet Corporation
>for Assigned Names and Numbers (ICANN), a California-based non-profit
>corporation charged with the principal responsibility for maintaining
>the Internet's domain name system.
>
>ICANN has been dogged by criticism since it was established under
>contract to the U.S. government in 1998. Those concerns have focused
>primarily on poor accountability practices. The power retained by the
>U.S. - the 1998 agreement gave it significant oversight powers - has
>left many governments uncomfortable with their limited input into
>Internet governance decisions, while the business community,
>particularly companies involved in the multi-billion dollar domain name
>registration sector, have become increasingly vocal about ICANN's lack
>of transparency and due process mechanisms.
>
>Meanwhile Internet users, who were initially promised a "bottoms-up"
>policy making process with half of the seats on the ICANN board reserved
>
>for their interests, have become steadily marginalized within the ICANN
>community with no guaranteed board representation and with limited
>support for policy initiatives.
>
>Late last month, ICANN took a major step toward addressing some of these
>
>concerns by signing a new agreement with the U.S. government entitled
>the Joint Project Agreement. ICANN immediately heralded the JPA as a
>"dramatic step forward" for full management of the Internet's domain
>name system through a "multi-stakeholder model of consultation."
>
>ICANN stated that the agreement grants it unprecedented independence by
>removing many of the U.S. government's oversight controls. These include
>
>the elimination of a twice-annual reporting requirement to the U.S.
>Department of Commerce (ICANN will instead release a single annual
>report targeted to the full Internet community) and a shift away from
>the highly prescriptive policy responsibilities featured in the original
>
>ICANN contract.
>
>Moreover, with the JPA scheduled to expire in September 2009, ICANN
>supporters believe that the stage is now set for formal privatization of
>
>Internet governance responsibilities with the U.S. government ultimately
>
>relinquishing any further oversight authority.
>
>While the JPA may indeed represent an important change, a closer
>examination of its terms suggest that there may be a hidden price tag
>behind ICANN newfound path toward independence - the privacy of domain
>name registrants.
>
>For the past five years, privacy has lingered as one of ICANN's most
>contentious policy issues. Information on tens of millions of domain
>name registrants are contained in the "WHOIS database", which is readily
>
>available to anyone with Internet access. Pre-dating ICANN, the database
>
>identifies the name, address, and other personal information of domain
>name registrants.
>
>Privacy groups, including European data protection commissioners, have
>expressed misgivings about the mandatory collection and the disclosure
>of registrant personal information. They note that domain name
>registrants are required to provide accurate registration information
>(failure to do so may result in a loss of the domain name) and that the
>open disclosure of this personal data may create a chilling effect on
>the registration of controversial websites where the registrant desires
>to remain anonymous. For example, registrants in oppressive political
>regimes may need to hide their identity to avoid criminal prosecution,
>while corporate whistleblowers in North America could lose their jobs if
>
>their identities were discovered.
>
>After years of debate, the ICANN community recently took baby steps
>toward eliminating the mandatory disclosure of personal information
>within the WHOIS database. The U.S. government strenuously objected to
>the WHOIS reforms, arguing that law enforcement and intellectual
>property interests rely on easy availability of such data. Yet with the
>reforms, the data would be readily available to law enforcement, with
>the appropriate due process measures (such as court orders). The issue
>is whether the data should be available without any oversight.
>
>Given that a newly independent ICANN might continue to pursue WHOIS
>reform, the U.S. government included a specific provision on the issue
>within the JPA. It mandates ICANN to "continue to enforce existing
>policy relating to WHOIS, such existing policy requires that ICANN
>implement measures to maintain timely, unrestricted and public access to
>
>accurate and complete WHOIS information, including registrant,
>technical, billing and administrative contact information."
>
>The implications of this clause seem clear - the U.S. government has
>undone five years of policy work that the Internet community has
>undertaken by requiring ICANN to enforce current WHOIS policies. As
>discontent over the WHOIS issue mounted late last week, ICANN CEO Paul
>Twomey offered a strained interpretation of the clause, suggesting that
>he did not believe that it restricted future WHOIS reforms.
>
>A more realistic take is that ICANN and the U.S. government have once
>again undermined the confidence of the Internet community and have
>provided a clear signal that the U.S. government is still reluctant to
>transfer its oversight authority. In its zeal to obtain independence, it
>
>would appear that ICANN has bartered the privacy of millions of domain
>name registrants around the world.
>
>/Michael Geist holds the Canada Research Chair in Internet and
>E-commerce Law at the University of Ottawa, Faculty of Law. He can
>reached at mgeist at uottawa.ca or online at www.michaelgeist.ca./
>
>
>
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