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Letter from Jane Mutimear (Intellectual Property Interests Constituency) to Louis Touton

Louis Touton
General Counsel
Internet Corporation for Assigned Names and Numbers (ICANN)
4676 Admiralty Way, Suite 330
Marina del Rey, CA 90292-6601
United States of America

Dear Louis

BULK WHOIS

I am writing in my capacity as President of the ICANN Intellectual Property Interests Constituency ("IPC") to inform you of IPC members' concern relating to actions by the Registrar Constituency and certain registrars that threaten access to Whois data. These developments are worthy of ICANN's attention, since Whois access helps to preserve and enhance the operational stability, reliability, and security of the Internet for everyday users by, amongst other things, assisting in the prosecution of cybersquatters and copyright pirates who would seek to take advantage of the public’s increasing interest in cyberspace.

To begin with, the IPC is extremely concerned about the recently adopted Registrar Constituency resolution calling for the outright elimination of the bulk Whois provision in the Registrar Accreditation Agreement ("RAA"). The IPC was pleased to support the prohibition of the use of bulk Whois data for marketing purposes, which the ICANN Board itself just approved. However, the outright discontinuation of bulk Whois, without access for parties engaged in providing appropriate value-added services, such as those protecting the rights of intellectual property owners, will only serve to dismantle the stability, reliability and security that I referred to earlier. We ask that you bear this in mind as this issue makes its way through the ICANN policy development process.

We have also been made aware of recent actions by certain individual registrars that appear to be designed to circumvent the RAA requirements regarding access to bulk Whois. These actions include simply not responding to requests for bulk Whois information; deleting most of the information from the database before making it available under bulk Whois agreements; or drafting extremely restrictive, non-negotiable bulk Whois access contracts. Such contracts are so one-sided that they have served as a significant deterrent for third parties to enter into an agreement with registrars, effectively denying access to bulk Whois. Denial of such access is a violation of the RAA, something that falls squarely within the purview of ICANN's enforcement responsibilities. We also note the conclusion of the Whois Task Force, in its November 30, 2002 Policy report, that "many [RAA] provisions relating to the bulk access rules are not currently being enforced."

Thank you for taking the time to consider the concerns of the IP community with respect to access to Whois data. On behalf of the IPC, I look forward to your response.

Yours sincerely

Jane Mutimear
President
jane.mutimear@twobirds.com

cc: Ken Stubbs: kstubbs@afilias.info
Thomas Keller: tom@schlund.de
Bruce Tonkin: bruce.tonkin@melbourneit.com.au

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Internationalized Domain Name ,IDN,"IDNs are domain names that include characters used in the local representation of languages that are not written with the twenty-six letters of the basic Latin alphabet ""a-z"". An IDN can contain Latin letters with diacritical marks, as required by many European languages, or may consist of characters from non-Latin scripts such as Arabic or Chinese. Many languages also use other types of digits than the European ""0-9"". The basic Latin alphabet together with the European-Arabic digits are, for the purpose of domain names, termed ""ASCII characters"" (ASCII = American Standard Code for Information Interchange). These are also included in the broader range of ""Unicode characters"" that provides the basis for IDNs. The ""hostname rule"" requires that all domain names of the type under consideration here are stored in the DNS using only the ASCII characters listed above, with the one further addition of the hyphen ""-"". The Unicode form of an IDN therefore requires special encoding before it is entered into the DNS. The following terminology is used when distinguishing between these forms: A domain name consists of a series of ""labels"" (separated by ""dots""). The ASCII form of an IDN label is termed an ""A-label"". All operations defined in the DNS protocol use A-labels exclusively. The Unicode form, which a user expects to be displayed, is termed a ""U-label"". The difference may be illustrated with the Hindi word for ""test"" — परीका — appearing here as a U-label would (in the Devanagari script). A special form of ""ASCII compatible encoding"" (abbreviated ACE) is applied to this to produce the corresponding A-label: xn--11b5bs1di. A domain name that only includes ASCII letters, digits, and hyphens is termed an ""LDH label"". Although the definitions of A-labels and LDH-labels overlap, a name consisting exclusively of LDH labels, such as""icann.org"" is not an IDN."