[registrars] Registrar Constituency position and representatives comments on Preliminary Whois Report

[Ross Rader]

Glen/Maria -

Please accept the following statement from the registrar constituency 
and its representatives to this TF. Section 1) was adopted by a majority 
vote of the constituency in January, 2006 and formally discussed, 
reinforced and evolved at each meeting of the constituency since (New 
Zealand, Morocco, Miami and Sao Paolo). This is in addition to ongoing 
dialogue about the work of the TF and the constituency position on the 
registrar constituency mailing list. The commentary included is provided 
in support of this formal position and includes feedback and commentary 
from various constituency participants.

1) Formal Position of the Registrar Constituency (ratified)
(i) The GNSO Registrar Constituency continues to support the Operation 
Point of Contact proposal discussed in the preliminary task force report.

2) Formal Feedback of the Constituency on the TF process, proposals and 
report
(i) The OPOC proposal represents a variety of compromises between a 
number of potentially competing interests and strikes a balance between 
the requirements of network operators, business interests, trademark and 
intellectual property holders and registration interests. (ii) We urge 
the task force to complete its work prior to the upcoming meetings in 
Lisbon, Portugal and to focus on its consideration of access to data to 
ensure that the proposed policies can be properly implemented by users 
and providers; specifically, network providers, law enforcement 
interests, registration interests and those seeking to protect their 
intellectual property rights. (iii) Without due consideration of access 
to data, including the important questions of "Who?" and "On what 
terms?" the task force cannot consider their work adequate or complete.

3) Commentary
Unlike the last minute Business Constituency and Intellectual Property 
Constituency proposals ("A Pragmatic Approach" and "Special 
Circumstances" proposals respectively) the Operational Point of Contact 
proposal does not advocate the irresponsible discontinuation of any 
aspect of the Whois service. Abolishing aspects of the service, or 
replacing it entirely,  will undermine the stability and security of the 
internet's domain name system. Neither of these proposals are 
technically, socially or economically practical and both only serve the 
narrowest of interests within the business community.

Despite the mischaracterizations that came with the handwringing and 
scare tactics of the IPC, BCUC and ISPC, the Operational Point of 
Contact proposal provides for very small improvement to the Whois system 
without fundamentally altering its structure or operation. This 
iterative improvement allows registrants a modicum of privacy without 
affecting *in any way* the amount of data that is available for 
legitimate investigative purposes. This stands in stark contrast to the 
position of the intellectual property lobby, in the guise of the IPC, 
ISPC and BCUC, which proposes to replace the entire existing whois 
system with a centrally administered registration database operated by 
an unaccountable entity according to policies specifically designed to 
circumvent national law on a global scale.

The policy development process is necessarily participative, 
consultative and consensus driven. It is also prone to abuse and 
gaming, as is evidenced by the tactics of those participants who have 
turned their back on the current set of compromises by tabling their own 
private proposals - proposals which may or may not even have the 
endorsement of the interests they purport to represent. Reaction to this 
type of disingenuous participation will always be swift and predictable. 
In this case, compromises were fractured, perhaps irrevocably, as 
additional proposals were crafted as a defensive measure against the 
abandonment of the set of agreeements that the task force participants 
had been working with. This type of bad faith participation undermines 
the foundation and integrity of the GNSO's processes and structure. It 
may warrant specific examination during ICANN's Board review of the 
GNSO. The GNSO cannot be allowed continue to function in a manner that 
permits narrow constituencies to push their own self-interested agenda 
at the expense of all other stakeholders, especially given the duplicity 
and overlap of the composition of the intellectual property, internet 
service provider and business users constituencies. Large business 
interests must be consolidated into one constituency and arrangements 
made to allow unrepresented interests to participate in the work of the 
GNSO.

Finally, the importance of defining which parties shall continue to have 
access to Whois data pursuant to any policies adopted by ICANN cannot be 
forgotten. All parties with a legitimate need for access to registration 
data must continue to have access to this data. Attention must be paid 
to facilitate the needs of registration (registrants, registrars and 
registries) and law enforcement interests and the means by which they 
access the data they require.