The Future (and present) of WHOIS

["Henslee, Judy" <Judy.Henslee@xxxxxxxxxxxxxxxxxxx>]

To Whom It May Concern:

 

I've recently learned that ICANN is considering radical changes to the
current domain registration system and the WHOIS requirements associated
with it.  As someone who relies on information provided in WHOIS records
on an almost daily basis for both personal and professional purposes, I
wish to comment on the motions being considered by the GNSO council.

 

As a consumer, I need to know at all times with whom I'm doing business.
There are many people for whom the Internet is their only retail outlet
or to whom I could not feasibly have access in the brick-and-mortar
world.  So, when I'm preparing to purchase something over the Internet
from a concern unknown to me, one of the first steps I take is to
determine the identity of the person or company operating the web site.
Hopefully, the merchant identifies itself and gives valid, confirmable
contact information on the web site itself.  Unfortunately, it is
increasingly common to find web sites on which no direct contact
information is given and on which the only way to communicate with the
merchant is through a direct input form (which reveals nothing about who
is on the other side) on the site itself.  When that happens, I
immediately do a WHOIS search to see if it provides information I can
then investigate through other resources, such as real-world telephone
directories, D&B reports, and state corporation databases.  Without
being able to discover the true identity of the person or company with
whom I'm contemplating doing electronic business, I run all manner of
risks from fraud to identity theft, and often, the WHOIS record is the
only way I have of protecting myself from that.

 

As a professional, I'm responsible for enforcing trademark rights in the
U.S. for a major international brand.  Because of the popularity and
salability of our brand, it has become a target for infringers and
counterfeiters all over the world, many of whom operate in the dark
shadows of the Internet.  The ability to identify people who are trading
in illegal goods or otherwise engaging in intellectual property theft
and abuse is often, as discussed above, possible only through WHOIS
records.  Without being able to obtain valid contact information for the
operator of any web site, trademark owners, other rights holders, and
law enforcement would be almost literally helpless to contravene illegal
activity.

 

The moment the commercial Internet was born and ICANN permitted the
unrestricted registration of domain names containing famous trademarks,
a burden of historically-unprecedented scope fell on trademark owners
all over the world.  Although ICANN provided a dispute resolution
procedure, rights owners must now invest enormous financial and human
resources to prevent the misuse of their trademarks by countless
thousands of moving and increasingly invisible targets.  ICANN now
contemplates making that burden even more onerous by disabling or
abolishing what is often the one and only key to the identity of persons
engaging in illegal activity, and for no good purpose I can conceive.
Privacy issues?  Because domain registrants are the victims of spam?
Boo hoo.  Who else in the world is not a victim of spam?  Why should
domain owners be given the benefit of being completely invisible to the
world in which they are operating when no one else has that privilege?

 

I would also point out that absent valid registrant information in the
WHOIS records (or without the ability to access it easily and quickly),
trademark owners would be restricted to filing in rem domain actions in
civil court, which precludes the possibility of getting any damages.
And, what happens to the URDP system when the registrant can't be named
or served?  Domain owners would be free to constantly shift ownership,
making it impossible to put a bad operator out of business.

 

It's bad enough that registrars have been permitted to offer "private"
registrations, forcing rights owners to communicate blindly and usually
unsatisfactorily through them.  If rights owners are required in future
to obtain a subpoena every time they need to investigate illegal
Internet activity, "www" will come to mean "Wild Wild West" for real.
The Internet is already a lawless enough place without ICANN putting up
electrified, barbed-wire fences between the people who conduct commerce
on it and the people who have legal reasons to object.

 

If there are privacy or abuse issues relating to access to WHOIS
records, then require rights owners and law enforcement to verify their
identities and rights through a contract with ICANN.  But, do not put
more barriers in place than already exist.

 

Sincerely,

 

Judy Henslee 
Trademark Manager 
Harley-Davidson Motor Company 
3700 W. Juneau Avenue 
Milwaukee, WI 53208 
(414) 343-4609 

 



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