[council] Interpretation of whois purpose

[Avri Doria]

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.