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Registrars open floodgate of Whois privacy outrage

Kevin Murphy, June 26, 2015, 12:21:24 (UTC), Domain Policy

A letter-writing campaign orchestrated by the leading domain registrars has resulted in ICANN getting hit with over 8,000 pro-privacy comments in less than a week.
It’s the largest volume of comments received by ICANN on an issue since right-wing Christian activists deluged ICANN with protests about .xxx, back in 2010.
The comments — the vast majority of them unedited template letters — were filed in response to the GNSO Privacy & Proxy Services Accreditation Issues (PPSAI) Working Group Initial Report.
That report attempts to bring privacy and proxy services, currently unregulated by ICANN, under ICANN’s contractual wing.
There are two problematic areas, as far as the registrars are concerned.
The first is the ability of trademark and copyright owners to, under certain circumstances, have the registrant of a privately registered name unmasked.
Upon receiving such a request, privacy services would have 15 days to obtain a response from their customer. They’d then have to make a call as to whether to reveal their contact information to the IP owner or not.
Possibly the most controversial aspect of this is described here:

Disclosure cannot be refused solely for lack of any of the following: (i) a court order; (ii) a subpoena; (iii) a pending civil action; or (iv) a UDRP or URS proceeding; nor can refusal to disclose be solely based on the fact that the request is founded on alleged intellectual property infringement in content on a website associated with the domain name.

In other words, the privacy services (in most cases, also the registrar) would be forced make a judgement on whether web site content is illegal, in the absence of a court order, before removing Whois privacy on a domain.
The second problematic area is an “additional statement” on domains used for commercial activity, appended to the PPSAI report, penned by MarkMonitor on behalf of Facebook, LegitScript, DomainTools, IP attorneys Smith, Gambreall & Russell, and itself.
Those companies believe it should be against the rules for anyone who commercially transacts via their web site to use Whois privacy.
Running ads on a blog, say, would be fine. But asking for, for example, credit card details in order to transact would preclude you from using privacy services.
The PPSAI working group didn’t even approach consensus on this topic, and it’s not a formal recommendation in its report.
Regardless, it’s one of the lynchpins of the current registrar letter-writing campaigns.
A page at SaveDomainPrivacy.org — the site backed by dozens of registrars big and small — describes circumstances under which somebody would need privacy even though they engage in e-commerce.
Home-based businesses, shelters for domestic abuse victims that accept donations, and political activists are all offered up as examples.
Visitors to the site are (or were — the site appears to be down right now (UPDATE: it’s back up)) invited to send a comment to ICANN supporting:

The legitimate use of privacy or proxy services to keep personal information private, protect physical safety, and prevent identity theft
The use of privacy services by all, for all legal purposes, regardless of whether the website is “commercial”
That privacy providers should not be forced to reveal my private information without verifiable evidence of wrongdoing

The content of the site was the subject of a sharp disagreement between MarkMonitor and Tucows executives last Saturday during ICANN 53. I’d tell you exactly what was said, but the recording of the relevant part of the GNSO Saturday session has not yet been published by ICANN.
Another site, which seems to be responsible for the majority of the 8,000+ comments received this week, is backed by the registrar NameCheap and the digital civil rights groups the Electronic Frontier Foundation and Fight For The Future.
NameCheap appears to be trying to build on the reputation it started to create for itself when it opposed the Stop Online Piracy Act a few years ago, going to so far as to link the Whois privacy reforms to SOPA on the campaign web site, which says:

Your privacy provider could be forced to publish your contact data in WHOIS or even give it out to anyone who complains about your website, without due process. Why should a small business owner have to publicize her home address just to have a website?
We think your privacy should be protected, regardless of whether your website is personal or commercial, and your confidential info should not be revealed without due process. If you agree, it’s time to tell ICANN.

The EFF’s involvement seems to have grabbed the attention of many reporters in the general tech press, generating dozens of headlines this week.
The public comment period on the PPSAI initial report ends July 7.
If it continues to attract attention, it could wind up being ICANN’s most-subscribed comment period ever.
Do geeks care about privacy more than Christians care about porn? We’ll find out in a week and a half.

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Comments (2)

  1. Graeme says:
    June 26, 2015 at 10:30 pm

    While I appreciate the mention and the promotion, though I am an employee of Tucows, I am not a member of the executive team. Feel free to tell Elliot that’s a tremendous oversight though.

    Reply

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