constituency statements for whois proceeding

[KathrynKL at AOL.COM]

All,
I think Milton's first draft is a good one, but I have some thoughts.  I
would emphasize a few points:
       -     why the OPOC proposal is not our first choice -- that it is
something we came too a bit reluctantly and that it is a big compromise for NCUC;
      -      that the Tiered Access proposal being floated are not
acceptable.  At the Marrakech meeting, NCUC agreed that we want due process for the
disclosure of underlying personal data (in the manner that ISPs, for example,
disclose email or chatroom identities or telephone companies disclose unlisted
telephone numbers).  Due process helps not only users/registrants, but also
registrars and registries by creating clear, legal guidelines.  A contract that the
party won't sell or market the data is not enough;
       -     that the Whois, as it exists and is being used, is a historical
accident inconsistent with the original purpose for which the data was
collected, the mission and goals of ICANN today and the purpose of Whois set out by
the Names Council in April 2006.  We know this well, but it always bears
repeating.

** I encourage everyone in the Constituency to draft a short comment on
behalf of their organization to support the Operational Point of Contact Proposal
(OPoC) and to say that OPoC is the only proposal being considered that balances
the interests of those holding the data (registrars and registries), those
hurt by the data's publication (noncommercial organizations and individuals) and
those who benefit from accessing the data (the 3 IP constituencies). **  Due
tomorrow.  See http://www.gnso.icann.org/comments-request/ (first item).

Edited version attached.
Best,
Kathy


>
> Surprised that there are no comments. I will submit these as is if there
> are no proposed modifications.
>
> >>>Milton Mueller <Mueller at SYR.EDU> 1/11/2007 6:19:12 PM >>>
> 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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