On 01/17/2010 06:26 PM, Bill Silverstein wrote:
On 01/17/2010 12:50 PM, Bill Silverstein wrote:
Drawing lines between commercial and non-commercial activities are hard and a clever person can slip-and-slide to whichever side of the line is most convenient for a given situation.
Really? I thought you might have read ROWAN v. U. S. POST OFFICE DEPT. , 397 U.S. 728 for some guidance on this.
That case is on an entirely different matter, in particular whether a recipient of a letter can instruct the US postal service (at that time, clearly an arm of the US gov't) to forward request to a sender to remove that recipient from a mailing list. There are due-process procedures that occur if the sender is believed to have failed to do so. That case does not deal with the situation surrounding whois, a situation which, without even an accusation of criminal activity, the entire world is allowed to directly penetrate the privacy of any and every domain name holder. That case also did not squarely address the speech issues that arise if the content is arguably political, religious, or affecting a fundamental right (such as procreation). The statute in question was agnostic about the type of content. The case was more about the right of a recipient to block delivery than about the right of senders to send.
To my mind the argument that "not listing myself in whois" ==>therefore==> "an act that is otherwise lawful becomes unlawful" is a very poor argument because it not only ignores the reasons why one might want privacy but, also, goes so far as to switch the burden of proof so that a person must justify his/her privacy rather than putting the burden onto the person who desires to penetrate privacy.
The current rule is that one is required to identify him/her/itself when registering a domain. If you buy a house, you list your name on the title. If a third party is listed on the title, they are liable for the damages caused by the house and the house may be taken if the person listed owes money.
The current "rule" is merely a contract provision put into place between ICANN and registrars without the consent of those who's privacy is being penetrated; it is a rule was put into place in a way that reeks of collusion and restraint of trade. Moreover, houses can easily and quite legally be bought via intermediaries that hide the name of the beneficial owner. And even though houses can be used for nefarious purposes the use of such intermediaries does not bootstrap the publication of the names of each and every beneficial owners simply because someone might, sometime, perhaps, engage in improper activities. What is bothering me in all of the is is the ease in which many of us use end-justifies-means logic to dismiss the need for due process. In the race to put spammers on the gallows we seem to forget the collateral damage. I'm happy to deal harshly with spammers, and particularly joe jobbers, *after* they have been fairly tried and found guilty, but not before. Of course we also forget that the real instigators behind open whois are the intellectual property protection industry who stir the pot and benefit from the resulting ability to find potential targets for unreasonable and coercive (OK, sometimes, on occasion, reasonable) cease and desist letters. --karl--