constituency statements for whois proceeding

[Milton Mueller]

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

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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.