Input to Expert Working Group on gTLD Directory Services The EWG Use Cases Seem Fundamentally Flawed

[Kathy Kleiman]

*//*We submit the following comments (below and attached) to the EWG on 
the issue of EWG Use Cases.
*//*

*//*Sincerely,*//*
*/ */Kathy Kleiman
Tamir Israel
Milton Mueller
Roy Balleste
Robin Gross
Avri Doria
Marie-Laure Lemineur
Peter Green
Edward Morris
All members of the NCSG

/* /*

*/***********************************************/*/*
The EWG Use Cases Seem Fundamentally Flawed:*//*How are the Use Cases 
Justified and How do they fit within the Scope and Mission of ICANN and 
How have these Cases Been Measured Against Due Process and Practices in 
other Fields? */

After years of debating the need to narrow access to the Whois, we in 
the NCSG are shocked to find an array of "Use Cases" that seem 
tantamount to giving everyone everything they have ever wanted.

We respectfully submit that we do not understand the Use Cases developed 
by the EWG: what were the limits set? What rigor in the analysis? How do 
the "Use Cases" fit within the limited and narrow scope and mission of 
ICANN? How do the Use Cases fit within traditional practices and 
protections for the owners and providers of the data?

For example:


a) Why is an individual entitled to find the physical location of a 
domain name registrant? What law gives an individual the right to track 
down a         Registrant for purposes that may include stalking, 
harassment and intimidation?

The physical dangers are very clear, but the benefits are not. The only 
answer given by a EWG member to date is that Internet users should be 
allowed to find the locations of the vendors with whom they are doing 
business. We note that only the smallest of subsets of domain name 
registrants are engaged in business-to-consumer transactions, and that 
these interactions with the Amazons, Facebooks, and Estee Lauders of the 
world are regulated closely by local and national regulators.

ICANN is neither a business regulator nor a consumer protection agency. 
The Whois and any related new set of data is not a substitute, 
replacement or proxy for the work of governments in protecting 
consumers. Governments can and do mandate what data must be made 
available on the websites of entities selling goods to the general 
public. Governments can and do educate consumers to deal only with 
entities they know online and that have complied with the legal 
requirements of disclosure and presentation.

This is content outside the scope and mission of ICANN. We are not a 
content regulator; we are not a consumer protection organization; and we 
know something more: that domain names need not be used for websites, 
but for listservs, for email addresses and more. The vast majority of 
domain names provide ideas, but not necessarily websites or content for 
the general public.

Yet, the risks of validating them and making the physical location of 
all registrants available to any "Individual Internet User" threaten far 
more than assist, and harm far more than help. They could lead to 
harassment, stalking, physical harm, psychological harm, and unnecessary 
threats to ideas and communications. *The Internet users who should be 
protected here are the Registrants.*


b) Domain Name Research -- the availability of Whois data for domain 
name research seems to have some validity if provided in the aggregate 
      and via some type of statistical sampling without personal data 
associated. But to allow a Researcher access to "Specified Registrants" 
with Contact and Specific Historical Data strains credulity, and 
threatens individual Domain Name Registrants.

c) Legal Actions -- Unfortunately, lawyers are the butt of jokes in many 
societies around the world. When asked why, lawyers note that they are 
mocked, but feared. The lawyer code of "zealous advocacy" generally 
requires the single-minded pursuit of the clients' goals -- regardless 
of the merit, the fairness or even the truth of the matter. Accordingly, 
lawyers intimidate, threaten, browbeat, and sue (with and without 
adequate grounds). That is their/our job.

But societies with lawyers protect against their abuses. For example, to 
attain the identity of a "John Doe" (an unidentified person in a 
chatroom), lawyers may not merely made an allegation of wrongdoing or 
breach, he/she must file a lawsuit, show a justified legal claim and 
affirm they will not misuse the data/identity when disclosed. If the 
conditions are met, and the disclosure made, the attorney's actions are 
monitored by a judge or magistrate for protection of the John Doe.

Similarly, sanctions threaten frivolous lawsuits by attorneys which 
would sap the time, money and energy, particularly of smaller 
defendants. Further, due process rules help level the planning field by 
ensuring that parties large and small, represented and not, have the 
time and notice needed to prepare and ready themselves for legal steps.

The high reputation of a the members of the Trademark Bar in ICANN 
notwithstanding, the mere proof of being a lawyer and the mere 
allegation of a legal problem is never enough to cause a defendant to 
lose rights, privileges and protections. It cannot be here.


c) UDRP cases?
Obviously a Registrant to a UDRP domain name dispute case must receive 
notice of the case (and it can be provided by his/her Registrar), but 
why should his/her name, location and contact information be disclosed? 
The UDRP is a virtual tribunal in which all proceedings pass by email. 
Physical locations are irrelevant; identity of the Registrant is 
irrelevant (except as disclosed through actions online or in other forums).

Domain names can be taken down and transferred without exposing the 
Registrant to other forms of wrath and retaliation by the trademark 
owner and the personal wrath of the party seeking the takedown.


d) Business Domain Name and Sale

Some country codes have looked at the purpose of domain name use -- and 
limited access to Registrant information. A potential buyer of domain 
names is not entitled to any information that the domain name registrant 
does not choose to provide. By way of comparison, what potential buyer 
of a house would have the right to come onto the property, harass the 
home owner and seek the history of repairs to roofs and furnaces /*prior 
*/to an indication the homeowner wanted to sell, and before any steps 
taken by the home owner to entertain the offer of that particular buyer?

Similarly, uninvited potential purchasers of domain names have no rights 
to Whois data -- and certainly no unique rights to data about the 
Registrant, Registration History, or contact information or anything 
else. All information can and should come through the Registrant -- if 
and when he/she/it is interested in selling.


e) Abuse Mitigation and Malicious Activities.

For years, registries and independent third parties have been studying 
malicious activities online and taking down domain names without any 
need to disclose or even contact the registrant. Such disclosure of 
registrants should not be routine, but subject to the legal and law 
enforcement process of investigation, and appropriate subpoenas and 
warrants.

/*We respectfully submit that the Use Cases are strained -- too much 
disclosure with too little process and far too little protection for the 
Domain Name Registrant. Such a "wish list" of uses should not be further 
entertained by the EWG. *//_*A far better alternative is to limit the 
data in whatever Whois/Directory databases are to follow -- provide a 
contact for technical questions, delete physical location (which can 
still be found through the Registrar likely subject to the appropriate 
jurisdictional protections for the Registrant), and delete the numerous 
additional fields being added.*_//**/

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