constituency statements for whois proceeding

[Milton Mueller]

Below are my draft comments. Most of it is our standard position,
however, there may be one controversial element. In paragraph 9, I open
the door to "tiered access" by listing a number of conditions that would
have to be debated and discussed, and by conditioning our willingness to
entertain a tiered access proposal on prior implementation of the OPoC
proposal. I am too tired to completely spell out the implications of
this and the rationale for it, but let me know what you think.

I have attached a rtf doc if anyone wants to make direct edits.

====

Comments of the Noncommercial Users Constituency on the Preliminary
Task Force Report on Whois Services of Nov. 22

1.	The Noncommercial Uses Constituency (NCUC) believes that ICANN
policies governing the publication of Whois data must be reformed, and
quickly. The OPoC proposal outlined in this 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 current approach to Whois uses a contract of adhesion to
force all domain name registrants to supply sensitive contact
information, and then indiscriminately publishes that data on the
Internet for anyone to harvest and exploit. This system, which was
instituted to serve the special interests of trademark and copyright
holders, has imposed major costs on registries and registrars while
subjecting millions of domain name registrants to spam and risks of
identity theft, as well as the risk of unjustified harassment and
surveillance by intellectual property lawyers. The current Whois policy
is not a product of "consensus" and was never required to go through
a bottom-up policy development process; it was imposed on the community
from the top down. It is time for a change.

3.	In its April 12, 2006 decision, the GNSO Council determined
that: "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."

4.	NCUC believes that the Operational Point of Contact (OPoC)
Proposal is a judicious compromise that feasibly embodies this purpose.
The OPoC proposal is not what NCUC thinks is the optimal solution, but
it is the closest we will ever get to agreement among the existing
constituencies.

5.	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.

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 is unacceptable to the NCUC.
It 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 meeting a
very restrictive and narrow set of criteria to prove their eligibility
for a basic human right of privacy protection. We suggest that those who
want access to sensitive data should have to prove "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. Moreover the proposal, based on a
practice of a relatively small country code registry, does not scale
globally or across language groups.

8.	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.

9.	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 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; and what kind of
entities would be eligible for such contracts.

10.	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.

11.	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.

12.	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.

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