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

Ute Decker udecker at microsoft.com
Mon Nov 5 10:33:02 UTC 2007

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

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