Comments of The Walt Disney Company

["Dow, Troy" <Troy.Dow@xxxxxxxxxx>]

I am pleased to submit the following comments regarding Whois policy
developments on behalf of The Walt Disney Company ("Disney").  Since its
founding in 1923, The Walt Disney Company and it's affiliated companies
have remained faithful to their commitment to produce unparalleled
entertainment experiences based on the rich legacy of quality creative
content and exceptional storytelling. Today, Disney is divided into four
major business segments: Studio Entertainment, Parks and Resorts,
Consumer Products and Media Networks. Each of our businesses in these
areas has a robust and constantly-growing online presence and owns
numerous domain names in the generic Top Level Domains (gTLDs).

Although several lengthy documents concerning Whois policy have been
published by ICANN in the last few months, these comments focus on the
three resolutions that are scheduled to come before the GNSO Council on
October 31.  These are found on pages 9-10 of the document entitled
"Staff Overview of Recent GNSO Whois Activities" (see
http://gnso.icann.org/drafts/icann-staff-overview-of-whois11oct07.pdf). 

Motion #1 would have the GNSO Council state that it "supports the OPOC
recommendation as contained in the Task Force Report." Disney urges the
council to reject this conclusion, and thus to reject Motion #1.

On January 15, 2007, Disney filed comments with ICANN that discussed
extensively why it believed that "the OPOC recommendation as contained
in the Task Force Report" was fundamentally flawed.  See
http://forum.icann.org/lists/whois-services-comments/msg00049.html.
Since that time, a Working Group of the GNSO Council has spent several
months discussing the OPOC proposal and seeking to reach agreement on
modifications of it that would address, in part, some of the issues
Disney and others raised in January.  It is clear from the report of
that working group, published in August, that this effort was not
successful.

To give just one example: the most basic function of the Operational
Point of Contact under the OPOC proposal is the responsibility to "pass
on data to resolve" certain issues.  The Working Group used the word
"RELAY" to describe this function.  As Disney noted in its January
comments, "The OPOC proposal provides very little reassurance that the
OPOC would communicate these requests to the registrant in a timely
fashion, or at all.  In fact, to the extent that an OPOC chooses to
treat our use of Whois  as not involving 'operational issues relating to
a domain name,' a phrase that is left mostly undefined, the OPOC would
have no responsibility to 'pass on data to resolve' them.   Even when an
issue clearly falls within the OPOC's purview, the proposal contains no
performance standards for the OPOC, no method for enforcing any such
standards, and no penalty for failure to comply with such standards."
Although the Working Group discussed the RELAY function at length, it
did not resolve the problems mentioned in the Disney January submission.
As the ICANN staff concluded in its "Staff Implementation Notes," based
on the Working Group report, "ICANN may have no way to assure that the
OPOC does relay.... It would be difficult to envision any requirement
that could be drafted that would be enforceable by ICANN without a
contractual relationship" between ICANN and the OPOC.   But the Working
Group could not agree on whether there should be such a relationship;
some of its members would not even agree that an entity designated as an
OPOC would have to consent to or even acknowledge such a designation.

Perhaps more significantly, the Working Group made almost no progress on
the issue that the Disney submission identified as an "essential"
component of any proposal (such as the OPOC proposal) that would
"withdraw some Whois data from public access":  "a fast, reliable and
predictable mechanism by which this hidden data will be made available
to parties with a legitimate need for it."  This concern was also raised
in other comments as well.  The Working Group reached no agreement on
how such a mechanism would work, who would be eligible to invoke it,
under what conditions, for what reasons, and with what assurances of
prompt and complete access.  In other words, the challenge of
"developing a workable and efficient mechanism for providing access to
this data," which Disney described last January as "not .. an easy
task," has so far proven almost completely intractable.

Because over the past eight months issues involving the most basic
workings of the OPOC proposal have not been resolved, Disney urges the
Council not to vote to implement Motion #1.  Thus, Motion #1 should be
rejected.

Motion #2 would launch a "comprehensive, objective study" of several key
factual issues regarding the uses and abuses of Whois data, as well as
on the characteristics of gTLD registrants and the operation of proxy
registration services.  Disney urges the council to adopt this motion.
A study of the kind described in the motion could provide a strong
empirical underpinning for any future efforts by ICANN to improve the
Whois process.  Although, as we stated last January, Disney "believe[s]
that the current system has worked in the best interests of Internet
users,' we acknowledge that the system certainly could be improved,
particularly in the area of Whois data quality.  While stronger
compliance efforts to enforce existing ICANN contracts are essential,
some policy improvements should also be considered.  The study called
for in motion #2 would help make ICANN's policy decisions in this area
better informed and perhaps more practical. We are particularly pleased
to see proxy and private registrations services included as a field for
study: as we noted in January, "the practices of providers [of such
services] in dealing with requests for Whois information are divergent
at best and nonresponsive in too many cases."

Finally, Disney expects that the Council will not seriously consider
Motion #3, which calls for elimination of "existing contractual
requirements concerning WHOIS for registries, registrants and
registrants."  Presumably, this would mean that each registrar and each
registry would decide for itself  what data about registrants to
collect, and what to do with that data.  Every registrar and every
registry could have a different policy.  While some registrars and
registries might adopt responsible policies, others would not require
registrants to supply contact data, and no member of the public (or,
presumably, of law enforcement)  would ever be able to access any
contact data.  Other registrars and registries may make contact data
available to at least some third parties, but at exorbitant rates and
under onerous terms and conditions that reflect their monopoly control
over the data.  The result would be chaos, and a breeding ground for
online crime and fraud.

Free, publicly accessible Whois data on gTLD registrants was a
well-established part of the domain name system that was handed over to
ICANN almost a decade ago.  It has been a constant feature of the gTLD
world ever since. Whois has been a powerful tool for ensuring
transparency and accountability online, has helped protect consumers and
the rights of Internet participants, and has had minimal impact on
personal privacy.  If ICANN were to throw this system overboard, as
Motion #3 suggests, it would inevitably become much harder to justify
the role that ICANN now plays in the operation of the domain name
system. Disney urges the Council to reject Motion #3.

Thank you for considering our views, and please let me know if I can
provide further information about this submission.  

Troy Dow


cc:     Paul Twomey, ICANN CEO