constituency statements for whois proceeding

[Carlos Afonso]

Looks OK, I agree with this version.

--c.a.

Milton Mueller wrote:
> Kathy:
> 
> Happy to accept most of your revisions. I went through once again
> because you made a lot of typos and needed a little copy editing here
> and there. See text below. I will submit this version first thing Jan.
> 15th
> 
> ====
> 
> 
> Comments of the Noncommercial Users Constituency on the GNSO Whois Task
> Force Preliminary Task Force Report on Whois Services
> 
> Comment Period Nov. 24, 2006- Jan. 15 2007
>   
> 	1 	The Noncommercial Users Constituency (NCUC) believes
> that ICANN policies governing the publication of Whois data must be
> reformed, and quickly. The Operational Point of Contact Proposal ("OPoC
> Proposal") presented in this Whois Task Force Report is not perfect, but
> it is the only way to bring some consensus and closure to a problem that
> has festered for too long.
>   
> 	2 	The original purpose of the WHOIS protocol is well
> known.  When the Internet was an experimental network, the Whois contact
> information allowed domain administrators to identify each other for the
> purpose of solving technical problems. This original purpose, according
> to the GNSO Names Council, was consistent with ICANN's current mission
> of operational stability, reliability, security and interoperability
> when it defined the Purpose of Whois on April 12, 2006: "The purpose of
> the gTLD Whois service is to provide information sufficient to contact a
> responsible party for a particular gTLD domain name who can resolve, or
> reliably pass on data to a party who can resolve, issues related to the
> configuration of the records associated with the domain name within a
> DNS nameserver."
>   
> 	3 	NCUC believes that the Operational Point of Contact
> (OPoC) Proposal is a judicious compromise that feasibly balances
> constituency input with the original purpose of Whois, ICANN's Mission
> and Core Values, and the GNSO Council's April 12 decision. We note again
> that the OPoC proposal is not what NCUC thinks is the optimal solution.
> We believe that "Anonymous pamphlets, leaflets, brochures and even books
> have played an important role in the progress of mankind" and should, in
> an ideal world, be allowed for political, religious and personal domain
> name registrants (quote from U.S. Supreme Court decision McIntyre v.
> Ohio Elections Commission, 514 U.S. 334 (1995)).  But this is not the
> ideal world.  Accordingly, NCUC representatives have worked hard and in
> good faith with other Whois Task Force members for a year to review and
> edit the OPoC proposal.  OPoC incorporates significant review, work,
> input and edits from all constituencies and creates a balance that ICANN
> can live with.  Domain name registrants will have some privacy; law
> enforcement and intellectual property will have access consistent with
> policies to be established. This is the closest we will ever get to
> agreement among the existing constituencies.
>   
> 	4 	In addition, NCUC believes that the OPoC proposal is
> much less confusing than the legacy combination of administrative,
> technical and billing contacts. Under the OPoC proposal it would no
> longer be necessary to display all of these contacts; the functions
> would be combined into one. We agree with the idea of permitting or
> encouraging registrants to list two OPoCs as a form of
> reliability-enhancing redundancy.
>   
> 5. Under ICANN's current approach to Whois there are tremendous problems
> that OPoC would clearly correct.  Today ICANN offers only a contract of
> adhesion that forces all domain name registrants to supply sensitive and
> personal contact information, and then allows this sensitive data to be
> indiscriminately published, in complete form, on the Internet for anyone
> to harvest and exploit. This global publication of the Whois database
> serves the special interests of trademark and copyright holders.  It has
> imposed major costs on registries and registrars while subjecting
> millions of domain name registrants to spamming, and the risk of
> stalking, identity theft, and unjustified harassment and surveillance by
> intellectual property lawyers. It is time for a change. 
>   
> 	6 	NCUC believes that the combination of nameserver data
> and Operational Point of Contact are sufficient to meet the stated
> purpose for the publication of Whois data, and therefore does not
> believe that the name and jurisdiction of the registered name holder
> need to be published.
>   
> 7 	The Special Circumstances Proposal ("SC Proposal") is
> unacceptable to the NCUC. It is a last-minute proposal submitted by the
> Intellectual Property Constituency and barely reviewed and edited by the
> Whois Task Force for lack of time.  As the Terms of Reference tables in
> Section 2 and 4 of the Task Force clearly show, the SC Proposal does not
> even address most of the key terms of reference established by the Names
> Council for the Task Force. It does not define the purpose of the
> Registered Name Holder contact, purpose of Technical Contact, purpose of
> Administrative contact, or how inaccurate Whois data will be handled. 
> Where the OPoC is clear and balanced; the SC Proposal is ambiguous and
> self-serving for a few communities.
>   
> 8 	The SC Proposal represents the exact opposite of the direction
> ICANN should be headed. It assumes that all contact data of a domain
> name registrant should be available without restriction to any member of
> the public, for any use, and places a heavy burden of proof on
> individuals to meet a very restrictive set of criteria to prove their
> eligibility for a basic human right of privacy protection.
>   
> 	9 	The far better approach, NCUC submits, is that those who
> want the access  to sensitive data should have to prove their "special
> circumstances" in order to access the data, just as is now the case with
> requests for additional information about the holders of telephone
> records or drivers' licenses.
>   
> 	10 NCUC further notes that the SC Proposal's recommendation,
> that a third party vendor review all requests for data protection, does
> not scale globally or across language groups, nor is it consistent with
> the mission of ICANN or the Purpose of Whois that the Names Council
> decided.
>   
> 11 In regard to ccTLD practices, we note that the country codes of the
> United Kingdom, France, Italy, South Korea, Australia, and Canada
> (shortly to be finalized)  all provide considerably more protection for
> sensitive data and allow individuals to decide on the publication of
> their sensitive data as a matter of right.
>   
> 	12 On the question of access to data not published, NCUC agrees
> with the registrars that there are existing procedures for requesting
> such data from the registrar of record. But we would like to see the
> rights of individual registrants made clearer and stronger, and we do
> not believe that registrars should be able to handle any form of
> disclosure at their own discretion. We believe that disclosure pursuant
> to law protects the registrars, registries and ICANN.  Registrar
> policies should follow those that already exist in their countries for
> disclosure of unlisted telephone numbers, email and chatroom identities,
> etc. 
>   
> 	13 At this time, NCUC cannot support a proposal to allow
> unpublished Whois data to be accessed by anyone who signs a contract
> agreeing to limitations on the use of the data. Although we recognize
> that sufficiently restrictive terms and conditions might make such a
> "tiered access" contract worth considering, we believe that such a
> policy of access must follow implementation of the OPoC proposal and be
> part of a new and separate PDP. Discussion of such a proposal must be
> linked to discussions about what data is collected by registrars; what
> fees should be charged to users of a tiered access regime (fees being
> justified both to finance the system, assign costs to cost-causers, and
> to discourage misuse of tiered access for unmotivated "fishing
> expeditions"); what limitations should be imposed on use and transfer of
> the data; what mechanisms would be used to enforce the contract; what
> kind of entities would be eligible for such contracts, what type of
> penalties should be imposed for abuse, and what types of access are
> allowed under national laws 
>   
> 	14 NCUC views favorably the idea of giving registrants the
> option of allowing the domain name to lapse in lieu of revealing the
> information, as elaborated in the Preliminary Task Force Report.
>   
> 	15 NCUC has always maintained that better privacy protection can
> pave the way for more accurate data, and therefore supports the OPoC
> proposal's accuracy improvement measures. Our support for improved
> accuracy is still contingent, however, upon a movement away from
> indiscriminate publication of sensitive contact data.
>   
> 	16 We close by reiterating once again the need for ICANN to move
> forward on this issue. In considering new policies, we urge the GNSO
> Council members, the GAC and ICANN's Board to pay careful attention to
> which constituencies have been willing to compromise and make changes in
> their position to make a new policy possible, and how far those
> accommodating constituencies have been willing to go. This is the last
> chance to reach a good faith agreement.
> 
> 

-- 
Carlos A. Afonso
diretor de planejamento
Rits - Rede de Informações para o Terceiro Setor
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