NCUC Constituency Report on Whois

[Milton L Mueller]

CONSTITUENCY STATEMENT, NONCOMMERCIAL USERS 

REPORT TO THE GNSO COUNCIL 25 September 2007

On Friday, September 14, the GNSO Staff report was circulated to the
NCUC list. The same day, the NCUC Chair noted language in the report
calling for "Constituency Statements" to be "submitted in a formal
statement to the Council list and to the ICANN Policy Lead" within
twenty one (21) calendar days after initiation of the PDP."

The Chair recommended that NCUC express its support for Motion #3
contained in the report (appended below). That motion recognizes the
fact that there is no consensus on existing Whois policy and asks that
the Whois portions of the Registrar Accreditation Agreement be
"sunsetted" (i.e., expired) at the end of 2008, and that support for
Motion #1 be withdrawn.  

On Sunday, September 16 NCUC's monthly conference call was held to
discuss the Chair's recommendation and find out whether there is any
support for the recommendation. Finding no opposition on that call, it
was agreed to send out an open ballot on the list asking whether all
members agreed or disagreed with the recommendation. That ballot was
sent September 16. By Thursday, September 20 the following results were
obtained:

Mueller           AGREE (NA)
Guerra            AGREE (NA)
Greve             AGREE (EU)
Gross             AGREE (NA)
Kleiman           AGREE (NA)
Krimm             AGREE (NA)
Klein             AGREE (AP)
Nzepa             AGREE (AF)
Peake             AGREE (AP)
Kissoondoyal      AGREE (AF)
Banks             AGREE (EU)
Afonso            AGREE (LAC)
Preston           AGREE (NA)
Rahman            AGREE (AP)
Tan               AGREE (AP)
Fernandes         AGREE (LAC)
Chango            AGREE (AF)
Chun              AGREE (AP)
-----
 
Younger           DISAGREE (NA)
Levins            DISAGREE (AF)

NCUC Tally 18-2

It is clear that within NCUC support is overwhelming for Motion 3, which
would sunset current Whois requirements until a new policy can be
negotiated from a clean slate. In discussions, several concerns were
expressed about the "reveal" function in the Whois report. As one member
stated, "the REVEAL section...has no relationship to any real-world
scenario I know.  In the real-world, a trademark owner sends a cease and
desist letter to a person, or his attorney, and the parties can choose
to respond, or not respond. The idea that anyone MUST respond to a
demand that is inaccurate, overbroad, intimidating or threatening just
because another individual or big business alleges there is an
illegality (and they all always do) is not consistent with law." Another
member, who participated in the Whois WG, added, "Once I realized what
had transpired in sub-group A, where the reveal function was defined, I
(and others) tried to object to it all along, as it seems like a total
loophole to the access provisions we were trying to define and balance
in sub-group B."

One member who disagreed with the motion expressed his view that "I
personally prefer the current system to those proposed" and noted that
under the current system registrars could sell or offer for free a
service that shields the sensitive contact data. The other "disagree"
voter preferred that NCUC take the lead in initiating new "face-to-face
sessions on an intersessional basis wherein discussions may result in
some type of an accord being reached." On this last point, the general
sense of the constituency was best expressed by the member who wrote,
"We don't need more meetings.  We need a precedent for Whois that says
that absent consensus (general agreement broadly across constituencies),
ICANN contracts cannot be used to force registrants to give up
fundamental rights..."

Impact on constituency: NCUC volunteers have invested an enormous amount
of time in Whois policy proceedings. Further fruitless negotiations or
machinations around Whois will be a waste of time and will have a
damaging effect on ICANN's credibility among noncommercial
organizations. Starting from a clean slate, as proposed in Motion #3,
will revitalize interest in coming to a conclusion.

Clean-slate negotiations will also be the fastest way to a solution. The
absence of a policy will provide everyone strong incentives to reach a
conclusion. We estimate that a new solution could be agreed in six
months. 

Submitted on behalf of the NCUC by its Chair, 

Milton Mueller, Professor
Syracuse University 
School of Information Studies
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Internet Governance Project:
http://internetgovernance.org
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http://www.digitalconvergence.org