[gnso-dow123] Formulation 1/Revised Formulation 2

[KathrynKL@xxxxxxx]

All:
As the Council debates a revised Formulation 2, I thought it might be useful 
if we also shared ideas.  While many of TF members sit on the Council, many 
others do not.  So here is my analysis of Formulation 1 and Revised Formulation 
2.  
Regards, Kathy
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Formulation 1 vs. Revised Formulation 2 

ICANN has a very narrow technical mission. It is that defined mandate that 
gives ICANN its legitimacy. ICANN is the technical coordinator of the domain 
name system. Its mission does not extend to the use of a domain name. 

Revised Formulation 2 includes "use" of a domain name for a very wide range 
of purposes:  technical, networking, legal.  Use is a matter of discretion and 
balance. What is posted on a website, what is sent in an email, what is 
shared in a listserv all involve the use of a domain name under those 
categories, 
but far exceed the narrow bounds of ICANNâs mission. 

Only Formulation 1 continues to keep the purpose of Whois within the narrow 
technical scope of âissues related to theÂconfiguration of the records 
associated with the domain name within a DNS nameserver.â This narrow use 
directly 
involves the registration of a domain name, its resolution, and technical 
problems associated directly with DNS issues â powers clearly given to ICANN.

Revised Formulation 2 gives certain constituencies essentially unlimited 
access to personal data for any purpose even remotely related to their work. 
While the words âtechnicalâ and ânetworkingâ resonate ring in our ears, 
it is an 
established part of the history of the Whois TF that the Business and ISP 
constituencies told the TF that these terms are meant to be extremely broad and 
encompassing.  They basically involve any email, website posting, or other 
interaction or transaction with the ISP or large online business.  ICANN never 
received unlimited power to regulate all technical and networking activities 
online, and it is a scope few would want it to have. 

Further, revised formulation 2's term âLegal issues related to registration 
or use of a gTLD domain nameâ is similarly undefined and unbounded.  This 
broad 
phrase includes just about any type of question or query an attorney has.  
Attorneys are great at wordsmithing (I'm an attorney).  Even if our goal is to 
harass, criticize or intimidate a domain name registrant (regarding political 
or religious content on a website, listserv or email, for example), we 
attorneys can phrase it as a "legal issue." 

The abuse of attorneys overstating their case to access personal data was 
seen in the US a few years ago.  A few years ago attorneys demanded the 
personal 
names/addresses behind chatroom identities alleging illegal conduct.  ISPs 
handed over the personal data, but it turns out that in many cases, the 
attorneys 
were really trying to silence whistleblowers (people showing illegalities in 
businesses or government contracts), stop complaints of workplace harassment, 
or halt legitimate criticism of their company's products or services.   

Now before an ISP in the US will disclose a chatroom identity, attorneys must 
go to court in âJohn Doeâ suits. They must first demonstrate to the court 
that they have solid evidence of illegality, a true cause of action under law, 
and clear evidence that the chatroom identity they seek is really the one 
involved in alleged unlawful conduct. No more fishing expeditions or 
intimidation 
of speakers.

Telus, in the Building Bridges Conference, said that it also follows strict 
procedures in Canada before disclosing chatroom identities (or email 
identities), but that those who need this information for legitimate law 
enforcement and 
other purposes will get it. 

Formulation 1 provides the best balance of privacy and access to data within 
the narrow technical bounds of ICANN.   Whois data will be collected for 
narrow technical purposes, consistent with the role and mission of ICANN.  Like 
ISPs, registrars will have additional data regarding their registrants and 
provide it consistent with law and due process.  It is a system that works well 
for 
.UK, .JP, .AU, and many other countries.  It will work well for gTLDs.