ICANN Non-Commercial Users Constituency (NCUC) Explanation of Votes Cast on 31 October 2007 RE: WHOIS Motions before GNSO Council On Motion #1 The Non-Commercial Users Constituency (NCUC) supported OPoC at the time it originally passed by the GNSO Whois Task Force in the Spring 2006. But even at that time, OPoC was a compromise of NCUC’s policy objectives and did not fully protect the legitimate privacy rights of Internet users. Since the time the GNSO Council approved OPoC, the proposal took a radical direction, including attempts to create a mechanism to force the disclosure of personal information in cases where the law would not permit disclosure. Fortunately, there was no consensus within the GNSO to accept that over-reaching approach. Without a consensus within the GNSO on how much access to private information the OPoC regime would provide, Motion #1 punted these difficult, yet extremely important policy decisions to the ICANN staff to decide. NCUC did not believe it was appropriate to send policy questions to ICANN staff to sort out. NCUC hoped to reach agreement within the GNSO to amend Motion #1 such that appropriate oversight and policy guidance could be given to the ICANN staff with respect to the implementation of OPoC. Without such guidance and oversight, NCUC believed that the recent macerations to OPoC had poisoned the proposal to the extent that it may be even worse than the status quo for privacy in some cases. Without agreement from GNSO constituencies to amend Motion 1, NCUC could not vote in favor of Motion #1 as drafted. On Motion #2 NCUC supported Motion #2 to conduct studies on whois because we believe there are important facts to be explored regarding the need for privacy protection of Whois data. Useful studies could also be done regarding the effects on crime prevention in country-code top-level domains that shield some contact data in order to protect the privacy rights of Internet users. NCUC does not believe, however, that waiting for outcomes of studies on Whois should prevent efforts to reform the policy in order to bring it into compliance with national law and international agreements. ICANN has an obligation to answer to the international legal community and promptly work towards remedying the conflict between law and ICANN policy. Besides the privacy concerns, current ICANN policy on the matter places Registrars and Registries at risk for potential legal liability for violations of European consumer protection laws or national privacy laws. On Motion #3 NCUC strongly supported Motion #3 because it provided a mechanism to spur uncompromising parties to the negotiating table on Whois in good faith. Without a mechanism to bring to the negotiating table parties who already have what they want, there is no incentive to voluntarily agree to any changes to the status quo with whois. NCUC continues to believe that “sun-setting” the non-consensus policy of Whois is the best course of action for the ICANN Board and the GNSO. There is no legitimate rationale for retaining policies that lack the broad support of the ICANN community, such as Whois. Whois never held a consensus position within the GNSO and it is a tragic mistake to continue with such a non-consensus policy, particularly when ICANN has been warned by national and regional data protection commissioners that Whois violates a number of national laws and international agreements. Reform of Whois is badly and immediately needed to protect the privacy rights of Internet users, bring ICANN into compliance with international law, and remove the legal risk on Registrars and Registries for violations of law imposed by ICANN contracts. NCUC incorporates into this statement, its endorsement of the 30 October 2007 letter written by NCUC member and online privacy expert EPIC and other concerned individuals and organizations to the ICANN Board on the need for Whois reform. Signed, NCUC GNSO Policy Councilors: Robin Gross, Norbert Klein, & Mawaki Chango 4 November 2007