Comments of Robin Gross on Whois at Sao Paulo Public Forum

ICANN Public Forum

Sao Paulo, December 2006

COMMENTS of Robin Gross, IP Justice Executive Director, GNSO Councillor, Member of the Non Commercial Users Constituency (NCUC)

I wanted to pick up on this point about security, and the need for security with the Whois database. Avri talked about the security rights of Internet users, not just of the intellectual property holders but the users in the community. This year, the US Federal Trade Commission has announced that now in the US, online data mining is the number one crime. Privacy experts, in particular, EPIC, have testified that it is the Whois database that is one of the most significant contributors to this problem. We need to pay some attention to the security interests of ordinary, everyday Internet users who register domain names, and not just the large intellectual property rights holders. They have legal mechanisms at their disposal if someone is violating their rights. It’s called due process of law. I really haven’t heard any explanation for why legal due process should be circumvented in this case.

We hear ‘gosh, it’s a hassle to go into court and to convince a judge that we need someone’s personal information’. But it’s supposed to be a hassle. And it’s not that much of a hassle. You can get that information in a day. So this idea that we need instantaneous access to everyone’s personal information that has ever registered a web site, it’s just completely absurd.

When I look at this special circumstances proposal, I am quite frankly shocked by it. We’re talking about some enormous barriers to privacy here. If you just look at the eligibility criteria, it’s open only to individual registrants, for non-commercial purposes, and they have to demonstrate that they have a reasonable basis.

These are all lawyer words meant to be stumbling blocks, by the way. That this access would jeopardize a concrete and real interest in their personal safety or security that cannot be protected other than by suppressing that public access. Wow! That is an enormous burden for individuals to have to prove before they can have access to their privacy rights. I don’t think it’s appropriate for ICANN to be trying to be building in barriers to an individual privacy like we see in this
proposal.

We decided this issue already. We voted on this issue at the Wellington meeting. So the idea that those who lost that vote can now put forth another proposal and we get to re-open the debate, it’s not acceptable. I’m sorry.