PPSAI Working Group Initial Report

[Jeff Wheelhouse <jdw@xxxxxxxxxxxxxx>]

Although many companies provide both services, the domain privacy service 
industry is separate from the domain registration industry and is outside the 
current scope of ICANN.  If ICANN chooses to offer a voluntary accreditation or 
certification program for companies in the domain privacy industry, it should 
feel free to do so.  There are many areas of the industry that could be 
improved by consumer education and by establishing a set of model policies that 
high-quality domain privacy providers follow.

However, any attempt to force participation in such a program, such as 
requiring ICANN-accredited domain registrars to refuse to accept registrations 
from privacy providers that are not ICANN-accredited would be an abuse of 
ICANN's monopoly over the domain registration market to gain control of the 
domain privacy market.  Such actions clearly violate US antitrust law and, it 
is likely, EU antitrust law as well.  Any accreditation program ICANN chooses 
to implement for domain privacy providers must succeed or fail on its own 
merits.  The TRUSTe program is an existing example of a similar successful 
program.

The working group report is rife with these sorts of jurisdictional issues.  
Privacy is by far more heavily regulated than domain registrations, and the 
laws vary widely from one country to the next.  How does ICANN propose to 
create one set of rules that will pass legal muster in every country on Earth, 
particularly when such laws are subject to change at any time?  The existing 
problems multi-jurisdictional companies have faced with directly conflicting 
data retention laws should serve as a clear warning that in the privacy arena, 
a single set of worldwide rules is simply not viable.