RE: [council] BC proposal re WHOIS

["Rosette, Kristina" <krosette@xxxxxxx>]

As an initial matter, the GAC Principles Regarding gTLD Whois Services
specifically recommend that information should be gathered "on gTLD
domain name registrations and registrants and how WHOIS data is used and
misused.  This information should be publicized and used to inform
future debate on this issue."  

The GAC Chair specifically noted this recommendation in our joint
meetings in both Lisbon and San Juan.  To the best of my knowledge, we
have not acted on this recommendation.  I believe we have an obligation
to do so.  That action may be to undertake the study, as proposed in the
resolution below. That action may also be to reject the recommendation,
and provide our reasoning for doing so.   To simply ignore the
recommendation, which it appears to me that we have done thus far, seems
to me to be counterproductive to the long-term functionality of the
ICANN organizational structure.  

Having said that, I don't believe we have the quantitative and
qualitative information that should be considered before making a
dramatic change in policy.  Indeed, the existence of the ad hoc group on
domain tasting demonstrates our recognition that such data is an
important input for policy considerations. Why is Whois any different?

To the best of my knowledge, we don't have data on the type of abuse and
the scale of abuse.  We also don't have data as to how often law
enforcement uses Whois data, how often the private sector uses it to
prevent and fight consumer harm caused by phishing and counterfeiting,
and how often the private sector uses it for other purposes such as
verifying "ownership" of a domain name (or, more often, a portfolio of
names) in connection with a business transaction such as a merger or
acquisition, for securitization of loans, for satisfying creditors of an
entity in bankruptcy, or simply to sell the name.  For example, it's a
safe bet that the domain auction at the recent Domain Roundtable would
not have produced nearly $ 3.8 million in sales (or any at all, for that
matter) if the purchasers could not verify in real-time that the
purported seller was actually the registrant. 

Your other points are important ones and, in my view, the fact that
these questions exist means that we're not close to being finished.

Kristina 

-----Original Message-----
From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx]
On Behalf Of Mawaki Chango
Sent: Thursday, August 30, 2007 8:02 AM
To: Mike Rodenbaugh; GNSO Council
Subject: RE: [council] BC proposal re WHOIS

And the NCUC certainly does not agree with this resolution
project:

1. It's surprising that there are people who still don't see that
there's a problem with the current Whois policy ("study 4, and to the
extent it reveals that there is a problem with the current Whois
policy,...") This would be, I'm afraid, a waste of ICANN's resources and
brave people's time, once more.

2. There a fact: Whois policy is in conflict with national laws (and
even more than the number of them we hear about.) Then what is that
policy, meant to be global, where exceptions become a routine?

3. What will be the terms of the cost/benefit analysis in order to
provide a comprehensive basis for evaluation? How are they going to
account for the political conundrum?

Mawaki

--- "Rosette, Kristina" <krosette@xxxxxxx> wrote:

> The Intellectual Property Constituency agrees with and supports the 
> proposed resolution from the Business Constituency.
>  
> Kristina Rosette
>  
> 
> 
> ________________________________
> 
>       From: owner-council@xxxxxxxxxxxxxx
> [mailto:owner-council@xxxxxxxxxxxxxx] On Behalf Of Mike Rodenbaugh
>       Sent: Wednesday, August 29, 2007 11:13 AM
>       To: GNSO Council
>       Subject: [council] BC proposal re WHOIS
>       
>       
> 
>       All,
> 
>        
> 
>       The BC agrees with the WG that further study of WHOIS issues is 
> warranted, however we believe the recommended studies should be 
> conducted in phases so as to potentially conserve ICANN resources in 
> the event that early studies show that later planned studies are not 
> warranted or should be modified.
> 
>        
> 
>       Here is a proposed resolution from the Business Constituency:
> 
>        
> 
>       1.      The GNSO Council hereby accepts the WG report and
> acknowledges the tremendous effort by WG participants and ICANN staff.
>       2.      The GNSO Council particularly recognizes the WG chair
> for his adept leadership through a contentious and controversial WG 
> process.
>       3.      The GNSO Council does not consider the WG report as an
> adequate basis for any implementation of OPOC. 
>       4.      The GNSO Council requests that ICANN staff proceed with
> the 4 studies described in Section 8 of the WG report, as
> follows: 
> 
>               1.      Proceed with study 4 on the characteristics of
> the Whois database first.  This study should include a review and 
> analysis of the different proxy services.
>               2.      Following completion of study 4, and to the
> extent it reveals that there is a problem with the current Whois 
> policy, ICANN Staff should proceed with study one - the cost/benefit 
> analysis.
> Completion of study 4 should help determine the parameters of the 
> cost/benefit analysis, since the scope of the problem will be known 
> and documented.
>               3.      To the extent that the cost/benefit analysis
> determines that the benefits of changing the Whois policy exceed the 
> costs, ICANN Staff should proceed with a third study that merges study

> two on self-certification (this should include an analysis of an ex 
> post facto review mechanism) and study 3 on authentication (which 
> should include authentication of any parties with a legitimate 
> interest in the data).
> 
>        
> 
>       Thanks.
> 
>        
> 
>       Mike Rodenbaugh
> 
>       Officer, Business and Commercial Users Constituency
> 
>