Drop WHOIS obligations for lack of consensus

[Wendy Seltzer <wendy@xxxxxxxxxxx>]

As Doc Searls points out, <http://www.linuxjournal.com/node/1002555>,
much of the current WHOIS debate is very inside baseball, tied up in
acronyms atop bureaucratic layers.  Small wonder then that ordinary
domain name registrants and Internet users havenât commented much, while
the fora are dominated by INTA members turning out responses to an
âurgent requestâ to âlet ICANN know that Whois is important to the brand
owners I representâ: see the call reproduced in this response,
<http://forum.icann.org/lists/whois-comments-2007/msg00039.html>.

We should be aware of the probability of burn-out here.  This feels like
the dozenth comment period on the same issues, and rather than recycling
comments that were ignored or considered in the previous 11 times they
were filed, concerned parties without financial stakes may well have
tuned out.

So what is at stake?  Everyone who registers a domain name is required
to enter name, address, email, and telephone numbers in a publicly
accessible database. When the Internet was a group of computer
scientists testing new connection protocols, this might have been a
helpful directory, but now, itâs filled with a hodgepodge: corporations,
individuals, non-profits, fraudsters who fake their information no
matter what the rules, and people who have no idea theyâre exposing
their personal info to the world (possibly because they think that their
own national data protection (privacy) laws will keep them safe).

ICANN has mandated collection and display of this information as a
legacy of old practices, not because there has been any agreement that
it should be so. Thereâs no reason one should have to give up privacy in
order to get a stable identifier for online speech.  There has never
been consensus on the status quo.

Thatâs important because ICANN is supposed to be a consensus-driven
organization.  Yet intellectual property interests, who see WHOIS as
their own data-mine, have managed to stall any movement away from the
status quo.  As theyâre trying to do again now.

The specifics of the current debate, apart from the substanceless
comments filling the forums, is a proposal to allow domain registrants
to substitute an âOperational Point of Contact,â or OPOC, in the public
listing.  While all their private information would still be collected,
it need not be published.  Instead, the OPOC would route messages to the
right recipient, for operational, technical, or legal inquiries. Thus
OPOC would simultaneously make WHOIS a better <i>technical</i> contact
resource and improve domain registrantsâ privacy options. Even OPOC
doesnât go so far as I would like â Iâd allow anonymous registrations,
rather than insisting that data be collected if not displayed â but itâs
better than the status quo.

I therefore strongly support the OPOC proposal. But ICANNâs GNSO Council
is filled with constituencies, none representing individual Internet
users and domain registrants.  If the OPOC motion fails, then the best
solution would be, as Ross Rader of the Registrar constituency (Tucows)
has proposed, for the GNSO to acknowledge its lack of consensus and
recommend that ICANN drop the current WHOIS requirements from its
registry contracts.

If this sounds tired, itâs because weâve been here before.  Many times,
from as early as 2002,
<http://www.dnso.org/dnso/dnsocomments/comments-whois/Arc01/msg00028.html>
2003, <http://forum.icann.org/mail-archive/alac/msg00523.html>, and 2004
<http://gnso.icann.org/mailing-lists/archives/whois-tf2-report-comments/pdf00001.pdf>


Break the deadlock by calling the lack of consensus for what it is --
and abandon non-consensus WHOIS disclosure obligations.

Submitted in my individual capacity,
--Wendy

-- 
Wendy Seltzer -- wendy@xxxxxxxxxxx
phone: +1.914.374.0613 // office: 617.373.7331
Visiting Professor, Northeastern University School of Law
Fellow, Berkman Center for Internet & Society
http://cyber.law.harvard.edu/seltzer.html
http://www.chillingeffects.org/
http://www.torproject.org/