[council] Statement of vote on WHOIS by Ute Decker, Kristina Rosette, Cyril Chua

[Ute Decker <udecker@xxxxxxxxxxxxx>]

Please find below the statement on the vote on WHOIS at the Council meeting in 
LA for Ute Decker, Kristina Rosette and Cyril Chua.



Statement of Intellectual Property Constituency representatives (for Board 
Report re Whois votes 31 October 2007)

            Section 12 of the GNSO Policy Development Process (Annex A to ICANN 
By-Laws) provides, "A Supermajority Vote of the Council members will be deemed 
to reflect the view of the Council, and may be conveyed to the Board as the 
Council's recommendation."   Since the vote to defeat Motion #1 regarding 
Whois, and to approve Motion #2, both qualify as Supermajority Votes under the 
PDP ("a vote of more than sixty-six (66) percent of the members present"), it 
does not appear that any further material is needed for the Board Report on 
these Motions.  Furthermore, the recommendation appearing in Motion #3 was 
never the subject of a Policy Development Process, and thus a Board Report does 
not appear to be required.  However, because there was no Supermajority Vote 
position on Motion #3, the IPC representatives to the Council provide the 
following information on the issues identified in Section 11 of the PDP.  We 
have provided this information with regard to all three motions, in case the 
staff takes the view that it is appropriate to make a Board Report on Motion 
#3, and to include within it the outcomes on issues decided by Supermajority 
Votes, but without conceding that either view is correct.

Motion #1:  IPC opposed this motion. The reasons for this opposition, as well 
as our views on the impact of the proposal on our constituency (item 11(b) of 
the PDP), are set out in the Constituency Statement submitted on October 4, 
2007 (see pages 26-28 of the Staff Overview document, 
http://www.gnso.icann.org/drafts/icann-staff-overview-of-whois11oct07.pdf):

"In its January 2007 statement, the IPC identified several critical questions 
about the OPOC proposal, in particular the roles and responsibilities of the 
new Operational Point of Contact.   It also stated at that time:  "Since the 
two proposals before the Task Force [OPOC and Special Circumstances] each call 
for the elimination of public access to some data that is now publicly 
available through the Whois service, the question of how to provide an 
alternative mechanism through which those with a specific legitimate need can 
obtain this data is crucial.  As the representative of a group of stakeholders 
who clearly have such a legitimate need, the IPC believes that  neither of 
these proposals (nor indeed any proposal that shares the characteristic of 
removing any Whois data from public access) should be adopted unless or until 
an efficient, reliable and speedy alternative mechanism for such access is 
ready to be implemented."

  "The Working Group formed by the GNSO Council after the Lisbon ICANN meeting 
was charged with addressing questions which paralleled some of the concerns 
raised by the IPC. IPC representatives participated actively in the Working 
Group.  In our view, some progress was made in defining the roles and 
responsibilities of the OPOC.   Much less progress was made on the crucial 
question of developing the alternative access mechanism that is needed.  In 
neither area was general agreement achieved on answers to the questions posed 
by the GNSO Council.

"If Motion #1 were adopted, IPC members would be adversely affected.  
Interposing an "operational point of contact" between the Whois requester and 
the registrant will generally make the process of contacting the registrant 
slower, more difficult, more opaque and less reliable than it is today.  The 
benefits for all parties of quick contact and prompt resolution of a wide range 
of disputes (including but not limited to those involving questions of 
infringement of intellectual property rights) will be largely forfeited; more 
cases will have to be resolved through more formal channels such as UDRP or 
litigation; and expense and delay will increase for all concerned.  A 
particular concern is that no alternative mechanism exists (or is even 
proposed) for obtaining more complete contact information on registrants in 
case of a legitimate need which may be extremely pressing."

 Motion #2:  IPC representatives supported this motion.  The reasons for this 
support, and the anticipated impact on the constituency, were spelled out in 
the October 4 constituency statement referenced above.  Although a number of 
wording changes were made to Motion #2 before it was voted upon, mainly as the 
result of amendments proposed by Ross Rader, Chuck Gomes and Robin Gross, and 
accepted by Kristina Rosette as the author of Motion #2, we do not believe that 
its basic thrust was changed, and thus the following statements in the 
Constituency Statement remain relevant:

"If Motion #2 were adopted, the impact on IPC members would probably be 
positive. In the long run, development of a stronger factual basis for any 
policy changes regarding Whois is likely to result in better decision-making. 
At a minimum, the practical impacts of different policy alternatives would be 
better understood.

"IPC supports Motion #2.  We agree that there is not 'an adequate basis for any 
implementation of the OPOC proposal,' and that future policymaking in this area 
would benefit greatly from 'a comprehensive, objective study ... of key factual 
issues regarding the Whois system, which has never been undertaken.'  The 
completion of such a study would provide a solid basis for the next steps in 
Whois policy development."

Motion #3:  IPC representatives opposed this motion, primarily for the reasons 
stated, and because of the impact anticipated, in the October 4 constituency 
statement:

"If Motion #3 were adopted, the impact on IPC members would be decidedly 
negative.   Their ability to contact registrants (for the many legitimate 
reasons spelled out in many previous submissions) would become completely 
unpredictable, and could vary wildly depending on the registry or registrar 
involved.  It can be envisioned that registries or registrars would exercise 
their unrestricted control over registrant contact information by demanding 
extortionate prices for this data and imposing other onerous terms and 
conditions.  There is also a risk that expensive and  protracted litigation 
would ensue among registrants, registrars, registries, and requesters 
(including IPC members) over the various inconsistent policies that would be 
put into place.  The likelihood of direct intervention by one or more 
governments into the process would increase significantly, in the absence of 
consistent self-regulatory practices.  In their role as domain name 
registrants, IPC members would also face greater uncertainty about how their 
personal data would be handled by registrars or registries.

IPC opposes Motion #3.  We disagree with the statement that the current Whois 
policies "cannot be reasonably implemented or enforced," and note that ICANN 
has repeatedly committed to do just that.  We oppose the "sunsetting" of the 
Whois contractual provisions that have been in place, with minimal 
modifications, throughout nearly all of ICANN's  history.  We believe that the 
current system can and should be improved, including through policy changes 
that are based on a strong factual record about the uses and abuses of Whois 
data.  To simply discard the current system, and let each ICANN registrar or 
registry follow its own wishes about access to, trafficking in, or accuracy of 
registrant contact data, would risk serious damage to the stability and 
security of the domain name system, and would not be in the best interests of 
any current participant in that system, including but not limited to the 
constituency IPC represents."




Ute Decker  |  Director - Interoperability & Standards - Microsoft EMEA
| +447967262245| 100 Victoria St, London SW1E 5JL, UK