Corporate vigilantism and domain privacy: a response
A small number of companies have written in to this public comment period expressing their opposition to P/P services for commercial sites, on the grounds that they need to be able to contact the owners of domains that they believe are harming them. This approach is mistaken and contrary to the rule of law. ICANN should respect the legitimate workings of national and international law, and not acquiesce to the corporations who want ICANN to serve as the enforcer of law on the internet. Justice is best served -- both for these companies and for the rest of the Internet -- by respecting the rule of law. Turner Broadcasing System wrote a comment [1] arguing the need to unmask the owners of domains that are harming their good public image via fraud, trademark infringement, and copyright infringement. Their needs to stop criminals are absolutely legitimate, and the laws recognize this. However, they insist on the ability to identify the owners of domains without legal process: "Turner especially supports Section III(D) of the Disclosure Framework, which provides that P/P Providers cannot refuse disclosure solely for lack of a court order[...]". But nowhere do they say why avoiding due process is a "deal-breaker". All of their needs are to stop laws from being broken, and the legal system is the institution we have for this purpose. In fact, Turner unmakes their own argument by asking rhetorically: "Arguing that the only times that P/P Providers must disclose is when they are ordered to do so by a court or other tribunal is nothing more than arguing that P/P Providers must follow the law. But if the WG's accreditation standards were nothing more than 'follow the law,' then what value or purpose would they add?" The straightforward answer is correct here: it is sufficient, as well as required, for P/P providers to follow the law and respond to the legal process. Nothing more is required for un-proxied domain owners in WHOIS; we trust that the legal system will ensure that they follow the law. This approach provides a simple answer to the rest of Turner's concerns. Turner worries that a particular corner of common-law trademark law in the United States is not reflected in the Disclosure Framework; their trademarks would be protected if they got a United States court order from a judge who can rule on that law. It benefits neither Turner nor ICANN to ask ICANN to be an ad-hoc interpreter of US law. Again, in wondering about a possible appeals process, Turner worries about "Kafkaesque uncertainty" in this system. But it is precisely the attempt to replicate the legal system in this extra-legal fashion that is "Kafkaesque". If they simply got a court order, the legal system has well-defined procedures for an appeals process that preserves timely relief. UNIFAB makes similar arguments [2]: it argues a need for its members to be able to identify the owners of websites "on the basis of long-standing European and other internation laws." It gives the example of the European E-Commerce directive, which requires contact information to be available "to the recipients of the service", and then states that they are "of the view that Privacy & Proxy services are being used to facilitate breaches of European law". But no requirement is given in the directive that the contact information should be given through WHOIS. It is not the fault of WHOIS if this information is not available through WHOIS; one would not claim that web page footers without addresses are being used to facilitate breaches of European law. Besides, privacy and proxy services mask the WHOIS database, which is available to the general public, not solely to recipients of the services. As the Working Group report states, it remains an open question whether ad-supported personal websites should be considered commercial. If we take the European E-Commerce directive as our guide, contact information does not need to be given to _visitors_ to the website, as they are not parties to any commercial transaction. The same sort of confusion is present in the comments from Sitetruth.com [3]: "In many jurisdictions, a business must disclose the actual name and address of the business behind a web site, or be guilty of a criminal offense." No answer is given, though, why ICANN should enforce the laws of these jurisdictions. Specific analogies are given to the California Business and Professions Code as well as to the European E-Commerce Directive, but Sitetruth takes it as given that ICANN should not only take it upon itself to enforce these laws, but also enshrine the current law in ICANN policy. This is in fact a subtle way to defeat the rule of law. Even if California or Europe changes its law, Sitetruth still stands to benefit as a company from the now-repealed laws, thanks to getting ICANN to adopt the rules. (As with Turner, it probably does not benefit Sitetruth to be locked into today's laws as ICANN understands them. But even if it did, it would be inappropriate for Sitetruth to gain this extra-legal advantage to support its business model.) ICANN should not be duped by these arguments. None of these organizations have expressed a reason why the usual rule of law is insufficient. If they are unhappy with the due process of law or even with its speed or efficiency, that is for them to take up with their governments. It is inappropriate for them to coerce ICANN into letting them have the contact information of websites they believe are committing crimes against them, so that they can enact their own corporate vigilante justice. ICANN should be careful that it is not coopted by corporate interests into enabling the rule of law to be bypassed. [1] http://forum.icann.org/lists/comments-ppsai-initial-05may15/msg11154.html [2] http://forum.icann.org/lists/comments-ppsai-initial-05may15/msg11283.html [3] http://forum.icann.org/lists/comments-ppsai-initial-05may15/msg11146.html -- Geoffrey Thomas https://ldpreload.com geofft@xxxxxxxxxxxxx |