It has taken almost three years—by some counts, more than 6 years—but ICANN’s domain name policy making organization has finally taken a stand on Whois and privacy. And the results were a decisive defeat for the copyright and trademark interests and the US government, and a stunning victory for advocates of the rights of individual domain name registrants.

The GNSO Council has now adopted, by an impressive 2/3 majority (18-9), the following definition of Whois purpose:

“The purpose of the gTLD Whois service is to provide information sufficient to contact a responsible party for a particular gTLD domain name who can resolve, or reliably pass on data to a party who can resolve, issues related to the configuration of the records associated with the domain name within a DNS nameserver.”

This narrow, technical definition of Whois was supported by the registries, registrars, the three Nomination Committee appointees, and the noncommercial users (NCUC) while the Business, Intellectual Property, and ISP constituencies were in the minority during the vote. The US government expressed its displeasure at the result. Will it pull a .xxx?

Let’s back up a bit and ask Why is ICANN discussing the “purpose” of Whois and why does it matter?

ICANN’s current method of collecting and publishing the contact information of all domain name registrants blatantly violates national and international norms and laws regarding data protection. It allows ICANN to require registrars to collect potentially unlimited and sensitive contact information about their registrants and publish it on the web for anyone to use, for any purpose whatsoever. By attempting to define the purpose of Whois, ICANN was following standard data protection norms and recognizing that both the data it collects about registrants and the amount of data it makes publicly available must be guided and restricted by a defined purpose. And that purpose must be directly related to ICANN’s mission, which is defined in narrow and technical terms as a coordinator of Internet identifiers.

Everyone knows that Whois has metastasized into something that it was never intended to be, yet the current system was allowed and encouraged to evolve into a free data mining resource because trademark and copyright lawyers wanted it to.

Will the US Govt. Interfere Again?

This is a big test for the ICANN model. Because, just as with the .xxx top-level domain proposal, ICANN is edging closer to doing something that conflicts with official US policy. The US government, responding to intellectual property interests and a few short-sighted law enforcement officials who don’t believe in following due process (which seems to include most people in the Bush administration), has been working aggressively within ICANN’s GAC to keep all domain name registration data completely public. It has used both fair means and foul—putting together completely one-sided briefing sessions for the GAC and avoiding and suppressing any discussion of the privacy and legal issues.

As the vote was held, Suzanne Sene, the US Commerce Department official who represents the US on the GAC, complained that the USG supports the expansive definition of WHOIS purpose. Claiming to speak for the GAC as a whole, Sene said that “GAC didn’t know how close to a vote we were” and said she didn’t think GNSO should vote so “soon.” This is an absurd claim because:

• the GNSO Task Forces involved in this process were formed almost three years ago;

• the report containing the two opposing purpose formulations were put out for public comment three months ago;

• a final report was sent to the Council March 15, prior to the Wellington meeting at the end of March.

Many believed the vote would take place in Wellington. But that meeting, which the GAC representatives attended, was used to discuss and debrief on the issue without a vote. As it became clear that USG and other business interests would lose the vote, calls for delay were heard and a fake compromise proposal was issued. These delaying tactics were brushed aside, however, by a Council majority composed of registrars, registries and noncommercial public interest advocates, supported also by all three Council members appointed by the Nominating Committee.

So the question now is, will the USG be able to push the GAC into “pulling a .xxx”—i.e., claiming that because it was asleep and didn’t follow the process and generally has no clue, it should be able to reverse or veto a policy decision? That kind of a reversal could be the straw that breaks the back of ICANN’s legitimacy. This one could not be presented as a vote against porn, but as a vote against user rights and privacy.