Comment on "Preliminary task force report on the purpose of Whois and of the Whois contacts"
I have been a member of the technical community from which the internet arose since the early 1970's
And I have been also working on matters of computer privacy for an equal number of years.
I have seen privacy proposals both good and bad.
In the above mentioned report I see one of the worst of the worst.
The raid on human privacy that is envisioned by "Formulation 2" of the report is an outrage against both human dignity and business sense.
Formulation 2 has no foundation in internet history or usage. The whois system for DNS names arose out of a club-like atmosphere in which we contacted one another to solve operational issues, not to assert legal claims.
The history of whois for DNS more closely resembles the closely-held roster of friends than it does a public registry of intrinsically dangerous instrumentalities.
Formulation 2 is really little more than an overt raid by select commercial interests to bypass established and proper legal means of obtaining information about people and competitors who acquire domain names.
The Whois database for DNS names has already caused real and substantial harm. Every one of us has received spam and phone calls based on whois data. But the harm goes much deeper. It goes so deep that women have been stalked based on DNS whois data. It goes so deep that families who use the internet to communicate are forced by DNS whois to expose their names, their addresses, their phone numbers, their afilliations - not just of parents but also of their children - to anyone, including predators, 24x7x365.
Formulation 2 subordinates human privacy and safety to trademarks. That is wrong.
And for what purpose is this intrustion justified? Nothing more than to satisfy the desire of a few wealthy industrial interests to save a few bucks.
I am an intellectual property attorney; I am a member of the California Bar and of the California Section on Intellectual Property. I see and read how the Intellectual property industry views whois as a tool, as a lever.
Recently I attended a meeting in which an attorney for a large media conglomerate talked about how he uses whois data to send automated cease-and-desist letters to anyone who registers a domain name that has any semblance to his company's marks. Neither he nor is conglomerate even bother to examine how the accused domain name is being used. That is not legal process; it is an abuse of process.
Formulation 2 is a foundation upon which this system of compulsion and intimidation is based.
It was rather ironic when this person from the media conglomerate revealed that in order to hide his company's new products he uses an intermediary to prevent his own company's name from appearing in that same whois database that he insists must be open to his inspection 24x7x365.
Clearly in the minds of many practitioners what is legitimate privacy for the trademark owning goose is an not permissable for the accused domain name owning gander.
Formulation 2 violates the laws of states and of nations. Formulation 2 usurps the role of proper legal processes that have been created over centuries. Formlation 2 is abandons the more balanced and fair mechanisms of proper legal process in favor of a one-sided system.
Formulation 2 is simply an end-run that substitutes ad hoc vigilante methods in lieu of the means established by our legal systems.
If a business or holder of a trade or service mark believes that their rights are being harmed then the proper course of action is for them to instigate legal proceedings in which the intrustion into the accused's privacy is supervised by a disinterested magistrate and subject to challange by the owner of the accused domain name.
As compared to Formulation 2, Formulation 1 is more balanced and more reflective of historical use on the internet. Formulation 1 recognizes whois as what it was intended to be - a means to fix technical problems, not as a means to discard and bypass the established legal processes of complaint, service, answer, subpoena, and discovery.
--karl-- Karl Auerbach
Member of the technical community that created the internet since 1972
Attorney and member of the California Section on Intellectual Property
Founding member of the Boston Working Group
Former (and only) Elected Member to the ICANN Board of Directors for North America
Fellow of Law and Technology, CalTech and Loyola Law
Recipient of the Norbert Wiener Award
Chief Technical Officer, InterWorking Labs