Concerns of Noncommercial Users Constituency Privacy Conference November 29, 2005 Kathryn A. Kleiman, Esq. Internet Law and Policy Specialist, McLeod, Watkinson & Miller, Washington DC & Longtime GNSO Whois Task Force Member

2 “Anyone with Internet access can now have access to WHOIS data, and that includes stalkers, governments that restrict dissidents' activities, law enforcement agents without legal authority, and spammers.” 2004 Letter to Paul Twomey by EPIC and 46 civil liberties organizations from 21 countries:

3 Who is protecting us?

4 At least two sources of protection: -Data Protection Laws worldwide -Freedom of Expression protections

5 UN Universal Declaration of Human Rights, Article 19 “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and seek, receive and impart information and ideas through any media and regardless of frontiers.”

6 McIntyre v. Ohio Elections Commission, U.S. Supreme Court, “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Great works of literature have frequently been produced by authors writing under assumed names. Despite readers’ curiosity and the public’s interest in identifying the creator of a work of art, the author generally is free to decide whether or not to disclose his or her true identity…

7 The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of ones privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry.”

8 Our current domain name system requires disclosure as a condition of entry -- in violation of data protection laws and freedom of expression principles worldwide.

9 What’s preventing change? Current ICANN Registration Accreditation Agreement mandates full collection and disclosure of all Whois data

10 First Step NCUC’s proposes we create a narrow, technical “purpose” for the Whois database

11 Narrow, technical purpose is consistent with the original purpose of Whois -- technical and operational uses of data

12 It is consistent with ICANN’s mission- - "to coordinate, at the overall level, the global Internet's systems of unique identifiers, and in particular to ensure the stable and secure operation of the Internet's unique identifier systems."

13 ICANN’s Core Value #1 would support change: “Preserving and enhancing the operational stability, reliability, security, and global interoperability of the Internet.

14 ICANN’s Core Value #2 would support change: “Respecting the creativity, innovation, and flow of information made possible by the Internet by limiting ICANN's activities to those matters within ICANN's mission requiring or significantly benefiting from global coordination.”

15 ICANN Core Value #3 would support change: “To the extent feasible and appropriate, delegating coordination functions to or recognizing the policy role of other responsible entities that reflect the interests of affected parties.”

16 Second Step NCUC proposes we remove the personal data from the Whois database

17 For noncommercial users today: Registrant Data = Administrative Contact Data. NCUC proposes not publishing or even collecting this data as part of the Whois service.

18 Leave and improve the technical contact -Technical contact’s name, address, phone, fax and -Educate registrants about who to place in these fields – someone capable of addressing technical concerns regarding their domain name, e.g., their ISP, web host provider or Registrar

19 Disadvantage It’s not anonymous: personal data is available through the technical contact and also through the Registrar and thick Registry

20 Advantage It puts ICANN and the DNS in the traditional balance of telecommunications, privacy and legal access to personal data

21 Advantage It protects everyone, including Registrars and thick Registries Thank you!