Re: [gnso-dow123] DRAFT redline of recommendation 2

["Milton Mueller" <Mueller@xxxxxxx>]

>>> Ross Rader <ross@xxxxxxxxxx> 4/26/2005 9:53:37 AM >>>
>I am also struggling to understand what problem we are attempting 
>to address with this solution, why this approach was chosen over
others and

Ross:
The problem we are tryring to solve is simple: it is the "ongoing risk
of conflict between a registrar's or registry's local legal obligations
under local privacy laws and their contractual obligations to ICANN."
The approach taken by the recommendation is to permit exceptions under
strictly controlled conditions. There is tremendous amount of
documentation about these conflicts with local laws, so there is no need
to re-tread that path.

Vittorio's question is far more profound. He is asking why ICANN
insists on global contracts when other private contractual arrangements
are more flexible and respect national variation. 

The answer is basically political. There are two political reasons. One
is that ICANN, as a creation of the US Government and dominated by US
business, law enforcement and IPR interests, have seized on the
historical accident of public whois database availability to impose a
global contractual regime upon the rest of the world that makes it
permanent. Note that the Whois parts of the RAA date back to early 1999,
before there were any representative policy making structures in place.


The other reason is that registrars based on the US, where there are
weak privacy protections, do not want to permit competing registrars in
other national jurisidictions to gain a competitive advantage by
offering stronger privacvy protections to registrants. Thus registrars,
who generally would favor better privacy protection, allow themselves to
be neutered through divide and conquer tactics. 

I'm hope this simple, non-controversial explanation clarifies matters
for you. ;-) 

--Milton Mueller