RE: [council] Interpretation of whois purpose

[<tony.ar.holmes@xxxxxx>]

Avri
 
I appreciate you clearly stating what this means for you.
 
I'm beginning to think it would have been a great help if we'd all written down 
exactly what we thought the interpretations were before the vote. Maybe then we 
wouldn't be in this situation! 
 
Unfortunately over the years that the task force has struggled along, positions 
hardened and as we've seen from recent exchanges on the mailing list even 
reasoned and rationale dialogue has become difficult. We should all learn from 
this experience and make sure we don't get in to this situation again.
 
Tony

________________________________

From: owner-council@xxxxxxxxxxxxxx on behalf of Avri Doria
Sent: Tue 27/06/2006 12:33
To: GNSO Council
Subject: [council] Interpretation of whois purpose



Hi,

Ever since we voted for the whois purpose, there have been varying 
interpretations of what we meant when we voted.

These extend from Bruce's explanation, if i understand it correctly, 
that there was no difference between the two formulations to my 
understanding that there was a fundamental difference between the 
formulations.  While I understood that Bruce's personal belief today 
was his belief even at the time of the vote, I do not believe that it 
ever became the GNSO's position.  For the most part, the fact that we 
had a split vote across the two formulations is enough for me to 
conclude that the GNSO council as a body, felt that there was a 
difference between the two positions; one was seen as more 
restrictive then the other or perhaps one was seen as more expansive 
then the other.

My interpretation of:

> issues related to the configuration of the records associated with 
> the domain name within a DNS nameserver.

is that is covers any technical or operational issues that may be 
related to the name.

I do not agree that it extends to:

> ... , intellectual property, consumer protection, SPAM, fraud etc 
> all result from the configuration of a DNS record
>
> The definition makes no constraints on the types of issues
as was announced as the GSNO position during the GAC meeting.  I 
believe that this is inaccurate as an expression of the GSNO's 
position and interpretation of the chosen purpose of whois.  I 
understand that it may be the intention of some registrars and 
registries to behave as if that is what it means, but that is not the 
same as saying that this is what the council believes it means.  I 
also believe that using this as a definition is similar to saying 
that 'in the beginning there was the configuration record' and all 
things emanate from it.

Not only do I believe it is an inaccurate expression of the 
significance of the council vote, it is my belief that to extend the 
definition this way is tantamount to making ICANN a de-facto 
legislative and law enforcement agency.  And I think that is road we 
should not follow.

The mission of ICANN is technical and operational and the policy 
related to those technical and operational activities, and not 
legislative or law enforcement.  And while ICANN and all of its 
constituencies must obey the law, all the laws not just some of the 
laws and both national and international law and treaty, it is not in 
the position to make law or to enforce law.  As was recognized in the 
earlier GSNO resolution regarding adherence to national laws, it is 
up to nations to define what is allowed and what is proscribed, and 
it is up to national law to define the nature of lawful access to the 
information contained in the configuration records.  The balance of 
lawful access to information with privacy and consumer protection is 
too complex for the GNSO/ICANN to resolve, especially since that 
balance differs among the nations.  We should leave legislation to 
national legislatures and international law making bodies.  And we 
should leave the law enforcement to the plethora of police forces 
that are already chartered throughout the world.  ICANN should not be 
in the business of deciding what we do or don't give to the police - 
they can and will define that through national and international law.

a.