By Monika Ermert for Intellectual Property Watch
Even the “father of the Internet” could not find a solution to the ongoing fight over the so-called Whois database, which allow checks on who has registered Internet domain names. When Vinton Cerf steps down from its position as Chairman of the Internet Corporation for Assigned Names and Numbers at the closing of this week’s thirtieth ICANN meeting in Los Angeles, the Whois problem might remain unresolved.

The Whois database is touted as important for law enforcement but has been seen as a risk to the privacy of individuals for years. Would a more aggressive publication policy for the name, home address, phone number and email of a domain name registrant harm IP rights holders? Privacy advocates and others think yes.

Other issues at the 29 October – 2 November ICANN meeting include a possible policy for new generic Top Level Domains (TLDs, such as .com or .org) and debates about next steps for TLDs in non-English characters. Both issues also heavily touch intellectual property issues and therefore are likely to lead to heated discussions. New TLDs face similar implications with regards to possible trademark or naming rights infringements. What is more, a draft by ICANN’s Generic Name Supporting Organisation (GNSO) on ICANN’s necessary evaluation of new TLD application requests also proposes checks on moral and public order – a task for which ICANN’s not fit, according to the Keep the Core Neutral Coalition (KTCN).

KTCN wants ICANN to “stay within its technical mandate and refrain from embedding particular national, regional, moral, or religious policy objectives into global rules over the use of language in domain names,” the organisation said in a Monday press release. It announced a plan to hand a petition to ICANN on 1 November and is soliciting signatures.

With regard to the longstanding Whois story, three proposals are on the table in Los Angeles on how to proceed with Whois information published on the Web. One that has been promoted by registrars and users’ representatives recommends changing the current system of publishing contact details for administrative, technical and billing contacts, and only publishing one “operational point of contact” (OPoC). Personal information of the registrant would be diminished to name and state.

“There has never been a study showing that the system needs change at all,” said a representative of the International Trademark Association (INTA) at a briefing organised by INTA and ICANN’s highly active Intellectual Property Constituency (IPC) yesterday. “And, secondly, there are so many unanswered questions how this would work.”

INTA and the IPC favour having a study on possible effects of the OPoC concept instead. They also are against motion three, which asks for the elimination of all contractual obligations that make up ICANN’s existing Whois policy. ICANN Chair Cerf said at a Monday press conference that everybody agreed that having correct information in the Whois database was helpful. “Who can access and see the information is where the contention is and where the details become complicated.”

Access for law enforcement would still be possible with OPoC, said Ryan MacFarlane, Anti-Phishing Working Group and Federal Bureau of Investigation. The problem is more that law enforcement would not get tips from other people noticing or investigating for their customers or clients about what was happening. “We may not get that call,” said MacFarlane. Moreover, procedures would be delayed by getting subpoenas for information not available online.

Members of ICANN’s several Whois task forces reacted with anger at what they saw as a last-minute lobbying effort by the IPC. “As I watch the international campaigns from large intellectual property owners and business organisations flood the GNSO forum, I wonder if the participants know of the high level of representation their interests have received throughout the Whois process,” said a US lawyer and privacy activist on ICANN’s Whois Task Force.

Law professor Wendy Seltzer recommended to ICANN: “Break the deadlock by calling the lack of consensus for what it is – and abandon non-consensus Whois disclosure obligations.”

The elimination of a standard Whois policy would allow domain name registries and registrars to adhere to national policy. European registrars particularly have requested ICANN allow exemptions from ICANN contracts that would be compatible with stricter EU data protection law. While the GNSO and ICANN board have passed a decision to implement a procedure for such exemptions, the British registry Telnic, which soon will offer .tel domains, had to water down its proposals for a privacy protection concept in the .tel zone.

Instead of charging for private domain name owners’ Whois data and checking the legitimate interests of requests for it on an individual basis, Telnic now will offer a one-time sign-in procedure, according to the company’s proposal.

Requesters will select a “legitimate interest” from a drop-down menu online, said Syracuse University professor Milton Mueller, another member of the Whois Task Force and founder of the Internet Governance Project. This might include “trademark infringement,” he said.

Mueller railed against an announcement of ICANN staff that the exemption procedure was dependent upon input from the Government Advisory Committee. “[The US government] could delay implementation indefinitely simply by non-cooperation with the Europeans,” he said. Mueller called ICANN “a fake institution” that was unduly influenced by US industry and government interests.

NTIA Announces Consult On ICANN

In an unrelated and quite unexpected move, John Kneuer, assistant Commerce secretary for communications and information announced an international consultation on ICANN’s performance. Kneuer speaking at ICANN’s opening ceremony said the mid-term review of the Joint Project Agreement (JPA) between the Commerce Department and ICANN was part of this follow-up agreement with ICANN. “It is important that all interested stakeholders have an opportunity to directly share their views on ICANN during the JPA mid-term review,” Kneuer said.

“We feel strongly that our review must be informed by your experiences with ICANN and perspectives regarding its evolution.” The National Telecommunications and Information Administration, which Kneuer heads, also would hold a public hearing after comments are filed in the first quarter of next year. Comments will be accepted until 15 February, Kneuer said.

The invitation to the world to comment on ICANN’s accountability and transparency might well be seen as a smart move to steal the thunder of the critics of ICANN’s US government dependency immediately before the second Internet Governance Forum in Rio de Janeiro in mid-November.

Monika Ermert may be reached at info@ip-watch.ch.