[comments-whois] WHOIS: Process and Substance

[Norbert Klein <nhklein@gmx.net>]

The ICANN Reform Process, triggered by Stewart Lynn's paper "ICANN - The 
Case for Reform" stated: "Undue focus on process to the exclusion of 
substance and effectiveness is the second major problem facing ICANN."

There was a lot of process relating to WHOIS: a Names Council WHOIS 
Committee handed over its work to a Names Council WHOIS Task Force 
already in April 2001. The ICANN Ghana meetings in March 2002 received 
information about a broad survey which had received more than 3000 
responses - 2750 in English, and about 50 each in French, Japanese, 
Russian, and Spanish - a good example of the internationality of ICANN 
processes. At the Bucharest ICANN meetings in June 2002 a Final Report 
on this survey was presented. The Shanghai meeting in October 2002 saw a 
Powerpoint presentation about the "WHOIS Task Force Interim Report," the 
full text being on the ICANN web site.

The report shows in much detail the tremendous work which went into the 
effort to improve the usability of data of domain holders. Two special 
concerns are addressed throughout: accuracy, as well as uniformity and 
consistency of the data held in different data bases as a precondition 
to searchability and cross-registry WHOIS services. And secondly: 
concerns about marketing users and bulk access. The first concern 
resulted in elaborate and expensive to implement recommendations.

The current bulk access provisions allow the sale of customer 
information for up to US$ 10,000 per year, under the condition that the 
third party agrees not to use the data for unsolicited mass marketing, 
and not to resell or to redistribute the data. The surveys suggest also 
that the majority of respondents are worried how WHOIS information will 
continue to be kept protected, so that it cannot be used for unsolicited 
marketing activities.

The final section of the presentation asked how to "weigh the legitimate 
interests of bulk access to WHOIS against the preferences expressed by 
registrants," and it mentions "numerous legitimate uses being served by 
bulk access" (without spelling them out), as well as again the fact that 
the survey showed clear "objections to bulk access use for marketing 
purposes."

So far the PROCESS. I had expected that now the SUBSTANCE would come at 
the end: Why would someone buy these data for up to $10,000 if not for 
business purposes? The presentation seems to hint at the answer: the 
provisions of access "should be evaluated to determine whether the 
following is feasible," that is, to limit access to "those who are able 
to articulate a legitimate need, 'legitimate' still to be developed."

It is surprising that after so much technical and administrative process 
discussed an answer to the substantial question - what is legitimate 
use, so that the privacy of registrants data is protected - is still to 
be developed?

Or could this have to be expected anyway, as - according to Stewart 
Lynn's vision - "the driving notion today, with the renewed focus 
precipitated by the events of 9/11, must be effectiveness."

I walked away from the Shanghai presentation with the question: Is the 
alternative really "substance or process," or is it "legitimacy or 
effectiveness"? An effectiveness to serve which goals?

I share these considerations together with a plea to play substantial 
attention to the protection of the registrants. It will become more and 
more difficult, in the structures envisioned by the ICANN Board for the 
next year until a new report is due to the US Department of Commerce, to 
see how this voice, the voice of the end-users, of the non-commercials 
and of the members-at-large, can be articulated in a way that it is not 
relegated to the end of long processes, and then it is still to be 
clarified what is legitimate.

Norbert Klein
Phnom Penh
Open Forum of Cambodia
Member of the Non-Commercial Domain Name Holders Constituency