Letter from Steven J. Metalitz to Vinton G. Cerf Regarding Amendment to Whois Provisions of .name Registry Agreement

(24 October 2002)

October 24, 2002

VIA ELECTRONIC MAIL

Mr. Vinton G. Cerf
Chair, ICANN Board of Directors
c/o Worldcom
22001 Loudon County Parkway
Ashburn, VA 20147

Dear Vint:

I understand that, at its Shanghai meeting or shortly thereafter, the ICANN Board may be asked to approve modifications to the contract between ICANN and Global Name Resources (GNR) for the operation of the .name registry. These modifications would change the way that Whois data on .name registrations is made available.

The following comments have been discussed and developed with the assistance of a number of members of the Intellectual Property Constituency, including those most actively involved in Whois issues over the past several years within ICANN. However, there has not been time to circulate these comments for full review by the entire IPC prior to sending them, and they should not be considered as a formal position of the IPC.

Throughout the gTLD environment, a wide range of Whois data is available, both through port 43 access and via the Web, to members of the public on an as-needed basis without delay, without charge, and without substantial restrictions on legitimate uses. This well-established system serves the public interest, promotes accountability and transparency in the online world, and is embodied in all the relevant gTLD contracts into which ICANN has entered. It represents a consensus in the ordinary meaning of that word. As you know, improving and expanding Whois was cited by the Department of Commerce, at the time of the recent extension of the MOU, as one of ICANN's significant successes. Thus, any proposal to deviate from this path requires careful examination.

We have had a number of discussions with GNR representatives about their proposal. I believe they have been receptive to several concerns we have raised, and their responsiveness is embodied in the most recent texts of the proposal (dated October 24) that we have reviewed. GNR has tailored its proposal to minimize its impact on the legitimate uses of Whois, not only by intellectual property owners, but also by other members of the public. This tailoring has tempered our initial reaction of opposition to the proposed changes.

At this point, I believe that most intellectual property-related organizations would not oppose the request that GNR is making to the Board, but only if the following four conditions can be met.

1) GNR has presented this request as growing out of the unique business and legal circumstances of the .name registry. Its representatives tell us that they do not view it as establishing a precedent for any other gTLD registry. It is extremely important to intellectual property interests that this view be explicitly acknowledged and adopted in any Board action approving GNR's request, and that the Board's approval be limited to the specific circumstances currently presented by the .name registry.

2) At the present time, one of the main stated justifications advanced by GNR for its proposal is the desire to achieve greater compliance with applicable data protection law in the United Kingdom. If the proposal is to be approved, the Board should ask for some reliable assurance that this objective will be achieved. I understand that GNR has already begun the process of seeking approval for its revised Whois policies from the U.K. Information Commissioner. The Board should require that GNR furnish the Board, within a reasonable time frame, with appropriate documentation of the Information Commissioner's view regarding the compatibility of the new policies with U.K. data protection law.

(3) GNR has told us they have no current plans to charge a fee for so-called "extensive Whois" access, nor to add to the current list of contractually prohibited uses of Whois data, but have reserved the right to do so with ICANN approval. Since GNR is always free to approach the ICANN Board for further modification of its registry contract, we do not understand why this reservation is necessary. Since GNR is apparently not willing to omit it, we encourage the Board to accompany its approval of the GNR request with a clear statement that, since any substantial modification to any aspect of the extensive Whois agreement in the future will require the approval of the ICANN Board, the Board expects that any such future request will be preceded by full consultation by GNR with parties to existing extensive Whois agreements.

(4) Oddly enough, under the current proposal, it would not be possible to enter into an agreement online to obtain online access to extensive Whois data. If the Board approves the proposed changes it should do so in such a way as to allow GNR to modify the form agreement to provide for the option of online execution of the agreement with appropriate authentication using commonly accepted business practices.

Finally, under the proposed changes, intellectual property owners and other entities that rely upon ongoing access to the full range of Whois data will be required to enter into formal agreements with GNR. With this legal change in the mode of access to Whois data comes the unprecedented prospect that entities making individual Whois queries will expose themselves to contractual liability for their handling of this data. Earlier drafts of the "extensive Whois agreement" with GNR that we reviewed did not adequately restrict the scope of this newly created exposure. The current draft makes it clearer that Whois requesters are exposed to potential liability under the contract only to GNR and only as a result of their own misconduct in handling passwords or the data which they access in ways which violate their promises to GNR under the agreement. We want you and the other Board members to be aware that we are continuing to review the revised text and to seek more concrete assurances from GNR's counsel on this point, which they have orally agreed to provide.

I appreciate this opportunity to provide these perspectives on this important request by GNR. Please do not hesitate to contact me if you have questions. I would appreciate it if you or one of the other addressees would share this letter with other members of the Board at an appropriate time.

Sincerely yours,

Steven J. Metalitz

cc: Stuart Lynn, ICANN CEO
Louis Touton, ICANN General Counsel
Becky Burr, Wilmer Cutler & Pickering

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