NCUC Halloween Votes on Whois

[Robin Gross]

ICANN Non-Commercial Users Constituency (NCUC)
Explanation of Votes Cast on 31 October 2007

RE: WHOIS Motions before GNSO Council


On Motion #1

The Non-Commercial Users Constituency (NCUC) supported OPoC at the time
it originally passed by the GNSO Whois Task Force in the Spring 2006.
But even at that time, OPoC was a compromise of NCUC’s policy objectives
and did not fully protect the legitimate privacy rights of Internet
users. Since the time the GNSO Council approved OPoC, the proposal took
a radical direction, including attempts to create a mechanism to force
the disclosure of personal information in cases where the law would not
permit disclosure. Fortunately, there was no consensus within the GNSO
to accept that over-reaching approach.

Without a consensus within the GNSO on how much access to private
information the OPoC regime would provide, Motion #1 punted these
difficult, yet extremely important policy decisions to the ICANN staff
to decide. NCUC did not believe it was appropriate to send policy
questions to ICANN staff to sort out.

NCUC hoped to reach agreement within the GNSO to amend Motion #1 such
that appropriate oversight and policy guidance could be given to the
ICANN staff with respect to the implementation of OPoC. Without such
guidance and oversight, NCUC believed that the recent macerations to
OPoC had poisoned the proposal to the extent that it may be even worse
than the status quo for privacy in some cases. Without agreement from
GNSO constituencies to amend Motion 1, NCUC could not vote in favor of
Motion #1 as drafted.

On Motion #2

NCUC supported Motion #2 to conduct studies on whois because we believe
there are important facts to be explored regarding the need for privacy
protection of Whois data. Useful studies could also be done regarding
the effects on crime prevention in country-code top-level domains that
shield some contact data in order to protect the privacy rights of
Internet users.

NCUC does not believe, however, that waiting for outcomes of studies on
Whois should prevent efforts to reform the policy in order to bring it
into compliance with national law and international agreements. ICANN
has an obligation to answer to the international legal community and
promptly work towards remedying the conflict between law and ICANN policy.

Besides the privacy concerns, current ICANN policy on the matter places
Registrars and Registries at risk for potential legal liability for
violations of European consumer protection laws or national privacy laws.

On Motion #3

NCUC strongly supported Motion #3 because it provided a mechanism to
spur uncompromising parties to the negotiating table on Whois in good
faith. Without a mechanism to bring to the negotiating table parties who
already have what they want, there is no incentive to voluntarily agree
to any changes to the status quo with whois. NCUC continues to believe
that “sun-setting” the non-consensus policy of Whois is the best course
of action for the ICANN Board and the GNSO.

There is no legitimate rationale for retaining policies that lack the
broad support of the ICANN community, such as Whois. Whois never held a
consensus position within the GNSO and it is a tragic mistake to
continue with such a non-consensus policy, particularly when ICANN has
been warned by national and regional data protection commissioners that
Whois violates a number of national laws and international agreements.

Reform of Whois is badly and immediately needed to protect the privacy
rights of Internet users, bring ICANN into compliance with international
law, and remove the legal risk on Registrars and Registries for
violations of law imposed by ICANN contracts.

NCUC incorporates into this statement, its endorsement of the 30 October
2007 letter(1) written by NCUC member and online privacy expert EPIC and
other concerned individuals and organizations to the ICANN Board on the
need for Whois reform.

Signed,

NCUC GNSO Policy Councilors:
Robin Gross, Norbert Klein, & Mawaki Chango
4 November 2007

Notes:
(1)
http://ipjustice.org/wp/2007/10/30/epic-ngo-letter-to-icann-board-on-need-for-whois-reform/