[council] NCUC Halloween Vote on Whois

Robin Gross robin at ipjustice.org
Mon Nov 5 05:09:20 UTC 2007

ICANN Non-Commercial Users Constituency (NCUC)
Explanation of Votes Cast on 31 October 2007

RE: WHOIS Motions before GNSO Council

On Motion #1

The Non-Commercial Users Constituency (NCUC) supported OPoC at the time 
it originally passed by the GNSO Whois Task Force in the Spring 2006. 
But even at that time, OPoC was a compromise of NCUC’s policy objectives 
and did not fully protect the legitimate privacy rights of Internet 
users. Since the time the GNSO Council approved OPoC, the proposal took 
a radical direction, including attempts to create a mechanism to force 
the disclosure of personal information in cases where the law would not 
permit disclosure. Fortunately, there was no consensus within the GNSO 
to accept that over-reaching approach.

Without a consensus within the GNSO on how much access to private 
information the OPoC regime would provide, Motion #1 punted these 
difficult, yet extremely important policy decisions to the ICANN staff 
to decide. NCUC did not believe it was appropriate to send policy 
questions to ICANN staff to sort out.

NCUC hoped to reach agreement within the GNSO to amend Motion #1 such 
that appropriate oversight and policy guidance could be given to the 
ICANN staff with respect to the implementation of OPoC. Without such 
guidance and oversight, NCUC believed that the recent macerations to 
OPoC had poisoned the proposal to the extent that it may be even worse 
than the status quo for privacy in some cases. Without agreement from 
GNSO constituencies to amend Motion 1, NCUC could not vote in favor of 
Motion #1 as drafted.

On Motion #2

NCUC supported Motion #2 to conduct studies on whois because we believe 
there are important facts to be explored regarding the need for privacy 
protection of Whois data. Useful studies could also be done regarding 
the effects on crime prevention in country-code top-level domains that 
shield some contact data in order to protect the privacy rights of 
Internet users.

NCUC does not believe, however, that waiting for outcomes of studies on 
Whois should prevent efforts to reform the policy in order to bring it 
into compliance with national law and international agreements. ICANN 
has an obligation to answer to the international legal community and 
promptly work towards remedying the conflict between law and ICANN policy.

Besides the privacy concerns, current ICANN policy on the matter places 
Registrars and Registries at risk for potential legal liability for 
violations of European consumer protection laws or national privacy laws.

On Motion #3

NCUC strongly supported Motion #3 because it provided a mechanism to 
spur uncompromising parties to the negotiating table on Whois in good 
faith. Without a mechanism to bring to the negotiating table parties who 
already have what they want, there is no incentive to voluntarily agree 
to any changes to the status quo with whois. NCUC continues to believe 
that “sun-setting” the non-consensus policy of Whois is the best course 
of action for the ICANN Board and the GNSO.

There is no legitimate rationale for retaining policies that lack the 
broad support of the ICANN community, such as Whois. Whois never held a 
consensus position within the GNSO and it is a tragic mistake to 
continue with such a non-consensus policy, particularly when ICANN has 
been warned by national and regional data protection commissioners that 
Whois violates a number of national laws and international agreements.

Reform of Whois is badly and immediately needed to protect the privacy 
rights of Internet users, bring ICANN into compliance with international 
law, and remove the legal risk on Registrars and Registries for 
violations of law imposed by ICANN contracts.

NCUC incorporates into this statement, its endorsement of the 30 October 
2007 letter written by NCUC member and online privacy expert EPIC and 
other concerned individuals and organizations to the ICANN Board on the 
need for Whois reform.


NCUC GNSO Policy Councilors:
Robin Gross, Norbert Klein, & Mawaki Chango
4 November 2007

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