[Rt4-whois] Reviewing proxy/privacy ideas

[kathy at kathykleiman.com]

	Hi All,  

	After good food and great company last night, I awoke with some new
ideas regarding proxy/privacy service providers.   

	What we know:  

	-          Not too much. Proxy/privacy providers (p/p) are not
something we have studied closely. We know that many people,
including very experienced Net users, do not have a clear
distinction. They are generally used in the same voice at the same
time. 

	-          We have no clear data about p/p. The upcoming GNSO
studies will provide a) a study on reveal and relay requests to p/p
providers, and b) a study of what percentage of “bad guys” are
under p/p registration. We have only a study that says that 15-20% of
domain names are under p/p, and an array of comments. We have not
actual facts about p/p providers themselves.  

	-          Under US law, there is a strong protection of privacy and
even anonymity in Free Speech, but “no tradition of anonymous
commerce in the US.” Let me quote the World Trademark Review,
Aug/Sept 2011, article: “Why Trademark Owners Must lead the fight
for accountability in e-commerce.”  ** “Clearly the First
Amendment includes the right to speak anonymously. Moveover, the
First Amendment places anonymous speech on the Internet on the same
footing as other speech. As with other forms of expression, the
ability to speak anonymously on the Internet promotes the robust
exchange of ideas and allows individuals to express themselves
without fear of economic or official retaliation or concern about
social ostracism. The importance of the Internet to the expression of
protected speech cannot be overstated…”  

	Like the International Trademark Association, in some recent
legislative work in the US, let’s focus on the conduct we are most
concerned about:   

	-          Domain names being used in conjunction with “goods or
services advertised or sold at that [a] website.” (International
Trademark Association language as part of promoting a new US Statute
for services of process to domain registrants whose data cannot be
found – article above) 

	For our WRT decisions, let’s please not create confusion. The
lines between p/p are difficult and unclear. Let’s focus on conduct
we know is out there and bounds that can be quickly established and
are likely to help. ** Let me offer some reflections of yesterday. 
We all seem to agree that: ** 

	-          WE CAN BIND P/P CLOSER TO REGISTRARS, thus a Draft
Recommendation: Registrars may not knowingly use for their own
registrations, or register the domain names of p/p service providers
who do not have contracts with them; do not have clear agreements to
gather accurate Whois data from registrants; do not have clear
contractual obligations to Reveal the underlying registrant data when
requested under law or pursuant to ICANN rules.  

	-          ICANN will rapidly establish a proceeding, with Law
Enforcement and Consumer Communities, as well as privacy and free
speech Official and Experts, to develop a set of Reveal and Relay
rules for p/p providers, in conjunction with the ICANN Community.  

	-          Registrant Declaration: is the domain name being used for
goods or services sold or advertised using the domain name (note: this
includes not only websites, but emails and other forms of domain name
use).    
	(Note: the GNSO might want to wait to set up rules until soon after
their $200,000+ studies are completed within the year) 
	Overall, separating out p/p providers without much more work and
very, very, very extensive education  -- it will be very confusing to
ICANN and the Internet public. 
	Best, Kathy
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://mm.icann.org/pipermail/rt4-whois/attachments/20110921/30daf4e8/attachment.html