Comments of the Internet Commerce Association

["Phil Corwin" <pcorwin@xxxxxxxxxxxxxxxxxx>]

BUTERA & ANDREWS

Attorneys at Law

1301 Pennsylvania Avenue, N.W.

Washington, D.C. 20004-1701

202-347-6875

Philip S. Corwin, Partner

pcorwin@xxxxxxxxxxxxxxxxxx <mailto:pcorwin@xxxxxxxxxxxxxxxxxx> 

 

 

By E-Mail        

 

October  29, 2007

 

Board of Directors

Internet Corporation for Assigned Names and Numbers (ICANN)

4676 Admiralty Way, Suite 330 
Marina del Rey, CA 90292-6601

 

Re: GNSO Consideration of Proposed Changes to WHOIS

 

Dear Members of the ICANN Board:

 

This comment letter is submitted by the Internet Commerce Association (ICA) in 
regard to the September 14, 2007 ICANN Notice, "ICANN's GNSO Council Seeks 
Additional Comments on Proposed Changes to WHOIS 
<http://www.icann.org/announcements/announcement-2-14sep07.htm> ". ICA is a 
not-for-profit trade association representing the direct search industry. Its 
membership is composed of individuals and companies that invest in domain names 
(DNs) and develop and monetize the associated websites. ICA's mission is to 
promote the benefits of the activities of professional domain name investors, 
owners and developers to the press, advertisers, and governmental authorities 
on a global basis; and to strive for fairness among regulators and in ICANN's 
dispute resolution process as well as in the taxation and treatment of DN 
registrants under all relevant laws, regulations, and agreements in the U.S. 
and other nations. ICA provides a unified voice for a membership with common 
interests and a diverse collection of experience in the professional domain 
name ownership community. The community represented by ICA has risked large 
amounts of capital in order to develop domain names. Professional domain name 
registrants are a major source of the fees that support registrars, registries, 
and ICANN itself.

 

Last month the ICA announced adoption of its Member Code of Conduct (COC). This 
COC represents, to our knowledge, the first time that the direct search and DN 
investment and development industry has adopted best practices to help assure 
that participants conduct their activities with professionalism, respect and 
integrity. ICA's COC does speak to the issue of WHOIS, as follows:

 

Access to Accurate WHOIS Data: A registrant will provide accurate domain name 
ownership and contact information to the WHOIS database in a timely manner so 
that domain name ownership is transparent.  While a registrant may use a proxy 
service or other accepted means of privacy protection, a registrant should 
provide a timely response to any inquiry passed on via such proxy or related 
service or received directly when such service has complied with a lawful 
request for contact information.

 

The ICA's evaluation of the GNSO's Final Report on WHOIS is guided by this 
portion of our COC. The principal thrust of that Final Report is to establish 
an Operational Point of Contact (OPOC) and to let registrars display full 
contact information for the OPOC while only displaying the registrant's name 
and country of jurisdiction. Adoption of the OPOC would allow all registries to 
become "thin" and only obliged to publish a limited data set for each 
registration.

 

In addition to curbing the misuse of WHOIS data for such undesirable purposes 
as phishing, spam, and consumer fraud, adoption of the OPOC concept could 
simplify the registration process, accommodate privacy concerns, and encourage 
the submission of accurate data while improving the means for notifying 
registrants and correcting WHOIS data. All of these desirable results are 
consistent with the WHOIS provision of ICA's COC and lead us to endorse 
adoption of the OPOC model so long as OPOCs have clearly specified 
responsibilities that include the safeguarding of registrant information 
against unauthorized relief as well as a requirement for passing all 
communications, including legal notifications, on to the registrant in a timely 
fashion. We recognize that there are a variety of OPOC implementation issues 
that remain to be fully researched and considered but we do not believe that 
these remaining tasks argue for halting the ongoing WHOIS policy process.

 

In regard to some of the specific topics examined by the GNSO's Working Group 
(WG):

*       We disagree with the notion that only the contact information of 
registrants  who are natural persons would no longer be published. Many of 
ICA's members operate as small businesses (legal, rather than natural, 
persons), including such business forms as limited liability corporations, sole 
proprietorships, and partnerships, and should not receive disparate privacy 
treatment simply because they choose to have their DN portfolio maintained in a 
business rather than individual ownership format. 
*       We commend the WG for recognizing that proxy services are irrelevant to 
the OPOC concept and that its adoption would simply result in the service being 
designated as the OPOC. Through this mechanism ICANN would explicitly recognize 
that the private sector has effectively responded to market demands for 
registrant privacy protection.
*       We believe it is absolutely essential to ensure that registrars do not 
reveal confidential and proprietary information without the registrant being 
afforded adequate procedural and substantive due process.
*       We urge that the community be afforded adequate opportunity to evaluate 
and comment upon any proposed changes to the registrar accreditation agreement 
(RAA) and registrar-registrant agreements required to accommodate OPOC.

 

In regard to the three alternative motions that will be before the GNSO for a 
vote on October 31st the ICA endorses motion #1, which would have the GNSO 
support the OPOC recommendation and move forward with implementation in 
consultation with the ICANN community. Again, while recognizing that 
significant implementation details remain to be worked through, we believe that 
moving forward is the best course of action on this particular matter.

 

Motion #2, which would preserve the status quo and has been supported through 
an orchestrated campaign by trademark and other intellectual property 
interests, fails to adequately recognize that there are legitimate privacy and 
consumer protection issues raised by current WHOIS policy and practice. In 
addition, a vote to maintain the status quo after a lengthy consideration 
process formally initiated in March 2005, and reaching back to predecessor 
efforts that began at the start of the decade, would reinforce the perception 
that ICANN lacks adequate ability to make timely decisions on important and 
long-considered matters regardless of whether broad consensus exists. While we 
are not sympathetic to the position of these IP interests, which seem to be 
largely concerned with maintaining the WHOIS system most convenient to them 
while ignoring legitimate privacy-related concerns and problems, we are in 
greater empathy with concerns raised by the financial services sector and would 
look favorably toward implementation measures that assure that banks and other 
financial institutions can obtain timely access to accurate WHOIS data in order 
to deter identity theft, phishing, and similar financial frauds.

 

As for Motion #3, which would likewise declare a lack of consensus and 
therefore sunset current WHOIS requirements in the event that Motion #1 is not 
adopted, we cannot support this proposal as it seems to deny the validity of 
the need for IP owners, financial institutions, and similar parties to obtain 
accurate WHOIS data on a timely basis when specific DNs are used to perpetrate 
bad acts.

 

We appreciate the opportunity to comment on this matter and look forward to the 
GNSO's discussion and subsequent vote in Los Angeles.

 

Sincerely,

Philip S. Corwin

Counsel to the Internet Commerce Association

 

 

 

 

 
Philip S. Corwin 
Partner 
Butera & Andrews 
1301 Pennsylvania Ave., NW 
Suite 500 
Washington, DC 20004 
202-347-6875 (voice)/-6876 (fax) /202-255-6172 (mobile)
"Luck is the residue of design." -- Branch Rickey