[ga] ICANN, Telnic & the USG

[Danny Younger <dannyyounger@xxxxxxxxx>]

http://blog.internetgovernance.org/blog/_archives/2007/10/23/3309763.html

Q: When is a policy adopted unanimously in ICANN not
really a consensus policy? 
A: When the US Government says it isn't.

Case in point. A new top level domain registry,
TELNIC, has been authorized to run the .tel domain.
Their idea is that .tel will "allow and encourage
individuals and corporations to manage a universal
identity" on the Internet. If its idea works, lots of
ordinary people will register under the .tel domain
and combine their telephone numbers, email addresses,
and other identifiers. The company is based in the UK.


TELNIC has a problem: ICANN's contracts require it to
display all the personal contact data of its
registrants through a service known as "Whois." But
unrestricted access to personal contact data, aside
from being a rather bad idea, is against the law in
the UK. It follows European, not American, privacy and
data protection rules. So after consulting with the
UK's data protection authorities, TELNIC asked ICANN
to modify its Whois requirement. 

One would think that that request would be easy to
honor. ICANN has, after all, already passed a Whois
Procedure for Conflicts with National Laws" that
allows registries to apply for such exceptions. In
December 2003, the second Whois Task Force of the GNSO
recommended the development of a procedure to allow
gTLD registries and registrars to demonstrate when
they are prevented by local laws from fully complying
with the provisions of ICANN contracts regarding
personal data in Whois. The policy was passed by the
GNSO Council, ICANN's domain name policy development
organ, in November 2005. In May 2006, the ICANN Board
adopted the policy and directed ICANN staff to develop
and publicly document a conflicts procedure. In both
cases, the policy was passed unanimously. 

Fast forward to the middle of 2007, when TELNIC
actually attempted to get an exception. Out of the
blue, we were told that "The Whois Procedure for
Conflicts with National Laws is not yet implemented
pending GAC input." GAC is the "Governmental Advisory
Committee," ICANN's liaison with the world's
governments. But what is the hold up, what is stopping
GAC from its input? Any idea that the the world's
governments as a group want to stop the national
exceptions policy is obviously false. The GAC has
already adopted a set of public policy principles on
Whois that stated bluntly, "gTLD Whois services must
comply with applicable national laws and regulations."


No, it is only one government -- the USA -- that
doesn't like its implications. US policy has always
been that all personal contact data must be open to
anyone on the Internet who wants to view it, for any
purpose. Any why does the USG feel that way? When
TELNIC applied to restrict access to its registrants'
private data, the trademark and copyright interests
kicked up a huge fuss. They bullied TELNIC into making
major concessions -- allowing, for example, trademark
lawyers to get much broader access to registrant
records. No other constituency, such as privacy
advocates, were allowed to enter into these
negotiations. Still, they were not satisfied. They
know that any exception to Whois, no matter how small,
sets a precedent and confirms what everyone else in
the world knows -- that ICANN's contracts violate
national privacy laws around the world. 

In other words, the consensus policy is not really a
policy. Why? Because the USG (and the trademark lobby
that dictates its policy on these matters) doesn't
want it to be a policy. These kinds of manipulations
confirm the world's worst fears about Internet
governance and the American role in it. We are
presented with a frighteningly clear picture of a
rigged game, a violation of the credible commitment to
rules and process that must underpin international
institutions. For years now, the US government and the
trademark lobby have been trying to play a "heads I
win, tails you lose" game with Whois. This is just the
latest, albeit one of the most blatant, examples.
Sustained protests of this policy are expected at
ICANN's upcoming annual meeting in Los Angeles. 


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