Here's the message I just sent in my individual capacity to the WHOIS-comments forum. The comment period closes on October 30. ALAC, ALSs, or ALS members may wish to submit comments of their own to a forum that's currently dominated by INTA responses to a "get out the email" campaign. --Wendy -------- Original Message -------- Subject: Drop WHOIS obligations for lack of consensus Date: Thu, 25 Oct 2007 18:01:00 -0400 From: Wendy Seltzer <wendy@seltzer.org> To: whois-comments-2007@icann.org As Doc Searls points out, <http://www.linuxjournal.com/node/1002555>, much of the current WHOIS debate is very inside baseball, tied up in acronyms atop bureaucratic layers. Small wonder then that ordinary domain name registrants and Internet users haven’t commented much, while the fora are dominated by INTA members turning out responses to an “urgent request” to “let ICANN know that Whois is important to the brand owners I represent”: see the call reproduced in this response, <http://forum.icann.org/lists/whois-comments-2007/msg00039.html>. We should be aware of the probability of burn-out here. This feels like the dozenth comment period on the same issues, and rather than recycling comments that were ignored or considered in the previous 11 times they were filed, concerned parties without financial stakes may well have tuned out. So what is at stake? Everyone who registers a domain name is required to enter name, address, email, and telephone numbers in a publicly accessible database. When the Internet was a group of computer scientists testing new connection protocols, this might have been a helpful directory, but now, it’s filled with a hodgepodge: corporations, individuals, non-profits, fraudsters who fake their information no matter what the rules, and people who have no idea they’re exposing their personal info to the world (possibly because they think that their own national data protection (privacy) laws will keep them safe). ICANN has mandated collection and display of this information as a legacy of old practices, not because there has been any agreement that it should be so. There’s no reason one should have to give up privacy in order to get a stable identifier for online speech. There has never been consensus on the status quo. That’s important because ICANN is supposed to be a consensus-driven organization. Yet intellectual property interests, who see WHOIS as their own data-mine, have managed to stall any movement away from the status quo. As they’re trying to do again now. The specifics of the current debate, apart from the substanceless comments filling the forums, is a proposal to allow domain registrants to substitute an “Operational Point of Contact,” or OPOC, in the public listing. While all their private information would still be collected, it need not be published. Instead, the OPOC would route messages to the right recipient, for operational, technical, or legal inquiries. Thus OPOC would simultaneously make WHOIS a better <i>technical</i> contact resource and improve domain registrants’ privacy options. Even OPOC doesn’t go so far as I would like — I’d allow anonymous registrations, rather than insisting that data be collected if not displayed — but it’s better than the status quo. I therefore strongly support the OPOC proposal. But ICANN’s GNSO Council is filled with constituencies, none representing individual Internet users and domain registrants. If the OPOC motion fails, then the best solution would be, as Ross Rader of the Registrar constituency (Tucows) has proposed, for the GNSO to acknowledge its lack of consensus and recommend that ICANN drop the current WHOIS requirements from its registry contracts. If this sounds tired, it’s because we’ve been here before. Many times, from as early as 2002, <http://www.dnso.org/dnso/dnsocomments/comments-whois/Arc01/msg00028.html> 2003, <http://forum.icann.org/mail-archive/alac/msg00523.html>, and 2004 <http://gnso.icann.org/mailing-lists/archives/whois-tf2-report-comments/pdf00...> Break the deadlock by calling the lack of consensus for what it is -- and abandon non-consensus WHOIS disclosure obligations. Submitted in my individual capacity, --Wendy -- Wendy Seltzer -- wendy@seltzer.org Visiting Professor, Northeastern University School of Law Fellow, Berkman Center for Internet & Society http://cyber.law.harvard.edu/seltzer.html http://www.chillingeffects.org/ http://www.torproject.org/