By Overnight Delivery and Electronic Mail
Internet Corporation for
Assigned Names and Numbers
On behalf of Verio Inc.1, we write regarding the proposed ".com" Registry Agreement with Verisign Global Registry Services ("NSI")2, the Unsponsored TLD Registry Agreement,3 and the proposed ".org" and ".net" Registry Agreements. 4
In particular, we are writing in opposition to Section II.11.C of the ".com" Registry Agreement and Sections 3.10.3 of the Unsponsored TLD Registry Agreement and the ".org" and ".net" Registry Agreements. We are also writing in opposition to the revisions to the TLD Zone File Access Agreement included by reference as Appendix N to these agreements.5 These proposed provisions represent a major shift in the policies originally adopted by the United States Department of Commerce ("DoC") and ICANN with respect to the use of registrant contact information.
As currently drafted, there are several fundamental problems with these proposed provisions.
In the proposed agreements, ICANN contemplates providing Registrars and Registries with virtually exclusive commercial use of registrant information appearing in the Whois database. This represent a major departure from existing policy, in which Whois data is generally available for all lawful marketing purposes, subject only to a limited exception for e-mail spam. Furthermore, these proposed agreements impose new restrictions on the use of Whois and Zone File data that have no relationship to protecting the operational stability of the Internet.
ICANN recently posted proposed Registry Agreements on its web site and invited comments from interested parties. Verio's concerns with these proposed Registry Agreements are directed to the provisions dealing with permissible use of registrant contact information.
One set of provisions at issue is contained in Section II.11.C of the .com Registry Agreement. This section would provide:
(emphasis added).6 With its reference to "the data recipient's own existing customers," the policy intention behind this new language is clear. Registrars and Registries would be able to use registration data from their own registrants for commercial marketing using any method, but they could bar others from using the recited methods: e-mail, telephone, or facsimiles. Moreover, other parties would be prohibited from using any method for querying Whois databases that rely on "high volume, automated electronic processes."
Problematic provisions concerning access to registrant Zone File data are contained in the proposed TLD Zone File Access Agreement, which is to be incorporated by reference as Exhibit N into each of the proposed Registry Agreements.7 The revised version provides that the recipient of Zone File access can:
(emphasis added). These provisions contemplate limitations on the use even of Zone File data for the specified marketing purposes -- except where a registrar is marketing to its "own existing customers."8
With their broad restrictions on the use of Whois data for marketing purposes by parties other than a Registrar marketing to its customers, these provisions are directly at odds with current provisions dealing with use of Whois and Zone File data. The existing provisions arose out of a deliberative process in which the dangers of restricting use of Whois and Zone File data were expressly recognized.
At one point during the privatization of the domain name management system, NSI attempted to impose a restrictive regime on use of Whois data similar to that which is currently proposed. ICANN and the DoC, however, rejected NSI's proposal. The rejection was based on the premise that Whois data is not the property of Registrars or Registries but the property of the individual registrants and the public at large. Thus, it was concluded, no one should be allowed to profit from Whois data to the exclusion of others.
The conclusion of this deliberative process was a set of provisions set forth in various agreements dealing with use of Whois and Zone File data that promotes competition and limits exclusive claims to use. ICANN and the DoC agreed to keep access to Whois and Zone File data available for all lawful purposes so long as the use of data did not threaten the operational stability of the Internet. As NSI recently acknowledged, "[p]ursuant to the negotiations between Network Solutions and the Department of Commerce, surrounding the amendment of the Cooperative Agreement, Network Solutions, as the Registry, was required to make its TLD Zone files available for legitimate use." (emphasis added).9 Section 4 of the November 1999 TLD Zone File Agreement set forth the outer limits of the legitimate uses jointly developed by ICANN and the DoC and provided that the data can be used "for any legal purpose" except to:
(emphasis added). The only restrictions that were contemplated, therefore, were on the use of data for the transmission of spam email and mass automated registrations.
There can be no ambiguity about what this legal language was intended to cover. In a September 28,1999 Fact Sheet jointly developed by ICANN and DoC, the restrictions were articulated in plain English:
Joint Fact Sheet at 3 (emphasis added) (<http://www.icann.org/nsi/factsheet.htm>) (<http://www.ntia.doc.gov/ntiahome/domainname/agreements/summary-factsheet.htm>). In short, the original compact between ICANN and the DoC declared lawful all but the narrowest of potential uses of Whois data, namely spam email and mass automated registrations.
These provisions do not reflect a mere casual consideration of the public policy implications of access to Whois and Zone File data. In fact, the policies at issue were expressly recognized at the time, and a policy in favor of open access and use was knowingly adopted. The public record establishes that Whois and Zone File data were intended to be publicly available to all, including for commercial purposes.
For example, on July 22, 1999, Andrew J. Pincus, General Counsel of the Department of Commerce, submitted a statement for the record before the United States House of Representatives Commerce Committee's Subcommittee on Oversight and Investigations.10 Mr. Pincus stated:
(emphasis added). Mr. Pincus went on to state that "NSI agreed to provide free bulk access to zone file data until July 23,1999, under the terms of a Department of Commerce-approved agreement that would prohibit objectionable uses such as spamming but would allow all other lawful uses." (emphasis added).
That free access to Whois and Zone File data was a top policy objective cannot be disputed. In a Press Release dated August 6, 1999, the DoC announced that it had forced NSI to "remove restrictions on the use of WHOIS data for third-party development of value-added products and services pending resolution of all outstanding issues"11
On September 28, 1999, Secretary Of Commerce William M. Daley announced the DoC's approval of the agreements on domain name management. In that statement, Secretary Daley specifically mentioned the fight to keep Whois data open to the public. Secretary Daley stated:
(emphasis added). This ample record demonstrates the significant policy attention given to open use of Whois and Zone File data, and the strong policy tilt in favor of open access and use and away from assertions of a proprietary interest in Whois data.
In view of the degree of attention focused on this issue during the original privatization process, there should be a heavy presumption against altering the existing provisions. As explained below, no convincing rationale exists for upsetting the balance that was struck only a few short years ago.
As drafted, the agreements effectively provide Registrars and Registries with exclusive use of registrant information for marketing purposes.12 Keeping Whois and Zone File data available to all on equal terms for all lawful purposes, as opposed to providing Registrars or Registries sole or superior access to the data, promotes competition in the domain name renewal and value-added products and services markets. At the creation of the modem domain name management system, given the option of allowing Registrars or Registries to sell the data at a premium to its partners and affiliates versus simply allowing everyone access to the data for all lawful purposes, ICANN and the DoC chose the latter. Under the proposed agreements, with the stroke of a pen, ICANN reverses the policies to which it previously agreed.
Amazingly, these proposed agreements would actually allow Registrars and Registries, but no one else, to bombard their own customers with mass unsolicited commercial advertising or solicitations by e-mail, telephone, or facsimile. Furthermore, Registrars and Registries would be allowed to bombard their own customers with such solicitations on behalf of their business affiliates and partners. Under these agreements, Registrars and Registries can actually spam to their hearts' content, both on their own behalf and for others willing to pay them for the service. Of course, with exclusive access to customers of Registrars and Registries, the newly empowered Registrars and Registries would be able to exact a king's ransom from those seeking to share in the access. By selling access to Whois and Zone File data, Registrars and Registries would obtain a revenue stream perhaps more lucrative than they obtain from registrations. After becoming exclusive owners of valuable database, Registries and Registrars core business would become selling access to their customers' data to the highest bidders. In privatizing the domain name management system, ICANN and the DoC explicitly sought to prevent this from occurring.
The net effect of providing Registrars and Registries such exclusive access to Whois and Zone File data will be an increase in the price the consumer ultimately pays for value-added products and services and domain name renewals. By limiting access to this data, Registrars and Registries will effectively prevent third parties from cost-effectively contacting consumers in the market for Internet services. The only voice offering these services to the consumers will be their own Registrar or Registry, who will have less incentive to, compete on price with others offering the same Internet services.
While Registrars and Registries will claim they want to protect their own customers from being bothered by salespersons offering Internet services, ICANN should not be fooled. Registrars and Registries have every intent of continuing to market Internet services to their own customers. The marketing comes in the form of frequent mass emails cloaked as newsletters termed "Dot-Com News" or "Register.com News." Although these "email newsletters" do not include one iota of journalism, they are chock-full of solicitations on behalf of the Registrar or Registry and those business affiliates who paid to be included on the email In the future, the marketing will be even less subtle and more frequent.
Seeking to defend these proposed agreements, Registrars and Registries may argue that they are not relying on the Whois database for their marketing efforts, and thus the new terms do not give them a special advantage with respect to Whois data. Rather, they are using their "customer lists."
ICANN should see right through this sophistry. As a technical matter, Registrars and Registries may very well base their marketing activities on the "customer lists" they create during the course of registering domain names. These "customer lists," however, contain the same information as the Whois database. Indeed, the DoC and ICANN mandated the creation and accessibility of the Whois database precisely to ensure that the "customer list" information obtained by the Registrars and Registries during the course of registration would be made available to the public, in part for the purpose of promoting competition in the provision of Internet services.
As currently drafted, these new restrictions prohibit several time honored marketing tools where the former restrictions prohibited only spam email. The original agreements prohibited spam email because of the threat spam poses to the operational stability of the Internet. If someone were to email everyone listed in the Whois or Zone File database, it would cause serious system drains. No such concerns exist with other marketing tools, which have absolutely no effect on the operational stability of the Internet.
In deciding whether to advocate expansion of the prohibitions to include lawful marketing tools such as telephone solicitation, ICANN should be mindful that both federal and state laws already regulate telephone sales.13 For example, many states publish statewide "do-not-call lists" upon which individuals can ask to be listed and which companies must honor. Many states also have laws dealing with facsimile solicitations, which ICANN also proposes to bar. Furthermore, industry trade groups like the Direct Marketing Association publish "do-not-call lists" that reputable companies agree to honor.
There has simply been no showing by anyone that prohibiting lawful marketing tools other than spam email is necessary. Prohibiting such a wide array of lawful marketing tools would seriously decrease competition in the marketing of domain name renewals and value-added products and services. The DoC and ICANN only sought to prohibit conduct that threatened the operational stability of the Internet and to allow all other lawful conduct. Without any showing that new considerations require prohibiting other lawful marketing tools, the original policies should not be reversed.
In addition to prohibiting the use of Whois and Zone File data for various marketing purposes, the proposed agreements expand the prohibition against mass automated registrations to prohibit all automated queries upon the Whois servers of Registrars and Registries.
In prohibiting mass automated registrations, ICANN and the DoC were obviously concerned with the use of Whois and Zone File data by cybersquatters to send repetitive requests to register valuable domain names. Using fields included in Whois data, cybersquatters could determine whether a valuable domain name such as "wine.com" or "business.com" might be coming available. Like frantically hitting redial on the telephone hoping to get past a busy signal, cybersquatters would use computer programs to send repetitive requests to register the domain name, hoping that their registration would get through. Understanding that other cybersquatters were after the same name, cybersquatters designed their systems to send the same request once every ten seconds. One can imagine, for example, that even with only one hundred cybersquatters each requesting to register only ten domain names every ten seconds, the Registrar would receive over eight and half million requests each day, crippling their systems. ICANN and the DoC sought to put a stop to this conduct.
Neither ICANN nor the DoC ever expressed similar concerns with automated queries to Whois databases for registrant information. Whois databases were intended to be available for automated queries.14 If the "free public query-based access" was not intended to be available through automated processes, Registrars or Registries would have only been required to provide "an interactive web page" and not "a port 43" access, which is specifically designed for automated queries and is otherwise useless.
Hence, while mass automated registrations such as those outlined above could easily overload a Registrar's systems, no such concerns exist with automated queries of Whois databases. For example, VeriSign claims on its web site that it "maintains the infrastructure that responds to over 1 billion domain name look-ups daily." The average number of domain names registered each day never approached 100,000. Thus, if someone wanted to obtain the Whois data of each newly registered domain name, it would constitutes less than a hundredth of one percent of the total traffic on VeriSign's systems.
Simply querying a Whois database for contact information has no appreciable effect on the operational stability of the Internet and does not implicate trademark concerns. No one has put forth any argument that additional technical concerns about the operational stability of the Internet exist for further limiting the use of automated systems.
The proposed agreements also seriously implicate the freedom to public information embodied in United States copyright laws. Early in its history, ICANN gave testimony to the United States Congress that Whois data would be available to all. Now, ICANN appears to be headed toward a reversal of those representations.
On June 22,1999, as Chairman of the House Commerce Committee, Representative Tom Bliley wrote ICANN requesting ICANN to state whether it has "conducted, or had conducted on its behalf, a legal analysis of its authority to retain intellectual property rights over registrar data?"15
In its July 8, 1999 response to the House Commerce Committee's questions, ICANN stated:
Thus, in response to a formal request from the House Commerce Committee, ICANN previously took the position that free access to Whois data cannot be denied under United States law. Despite these prior representations, the proposed agreements signal a reversal of course.
ICANN previously represented that the factual information embodied in Whois and Zone File data could not be bottled up under copyright or trade secret laws but instead would be freely used by any party for their own lawful purposes. As currently drafted, however, these agreements effectively provide Registrars and Registries with intellectual property rights over the data. Third parties would be denied access to the data for most commercial marketing purposes, while Registrars and Registries would have unfettered use of the data.
Once again, ICANN proposes to reverse course without a sound basis for doing so. There are no new facts, and certainly no new legal principles, that support establishing a quasi-proprietary rights regime over Whois data. ICANN should adhere to its earlier commitments and maintain Whois data in a competitively open environment.
Reversal of ICANN and the DoC's longstanding policy promoting free public access to Whois and Zone File data for all lawful purposes is in direct response to the vested interests of Registrars and Registries, without consideration of the public's interests in keeping Whois and Zone File data publicly available except where the operational stability of the Internet is threatened. ICANN is moving in the direction of allowing Registrars and Registries to mete out access to this data only to its business partners and affiliates or to the highest bidder. In contrast to the policies the DoC and ICANN originally adopted, Registrars and Registries would be allowed to profit from the information by exploiting their exclusive access.
Of course, this will seriously undermine the competition in the marketing of domain name renewals and value-added products and services. When privatizing the domain name management system, the DoC and ICANN understood that by keeping Whois and Zone File data available to all for lawful marketing purposes, consumers would obtain more information about value-added products and services and domain name renewal services than they otherwise would have obtained, thereby promoting competition and lowering the cost of such services to the public. The parties understood that public access to data for lawful marketing purposes is pro-consumer and that limits on its use should only cover activities that threaten the operational stability of the Internet.
In revising these agreements, Verio requests that ICANN act to protect the original policy considerations and the public availability of Whois and Zone File data. As discussed above, no new threats to the operational stability of the Internet necessitate a change of policy. Furthermore, there is no basis for conferring such a valuable property right in Whois and Zone File data to Registrars and Registries to the exclusion of others.
If the agreements are adopted as proposed, Registrars and Registries will get the gold mine, while competitors and consumers will get the shaft.
Michael A. Jacobs
1. Verio is the world's largest web hosting company and leading provider of comprehensive Internet services. Verio provides locally based sales and engineering support for its Internet services in the top metropolitan statistical areas in the United States, and provides Web hosting services to customers in more than 170 countries.
4. A copy of the proposed "net" and ".com" Registry Agreements are available on ICANN's web site. (<http://www.icann.org/nsi/proposed-net-registry-agmt-01mar01.htm>) & (<http://www.icann.org/nsi/proposed-org-registry-agmt-01mar01.htm>).
7. ICANN's web site does not include hyperlinks to Appendix N in the proposed ".com," ".net," and ".org" Registry Agreements, but Verio assumes that ICANN proposes the same TLD Zone File Access Agreement for use by all Registries. See Section II.21 of the ".com" Registry Agreement and Sections 3.9.1 of the ".net" and ".org" Registry Agreements.
8. The TLD Zone File Access Agreement cannot be amended without the DoC's approval. Article II, Section 6 of Amendment 19 to Cooperative Agreement # NCR 92- 18742 provides that "NSI may not change the access agreement without the prior written approval of the Department of Commerce." (emphasis added). A copy of Amendment 19 to Cooperative Agreement # NCR 92- 18742 is available on ICANN's web site. (<http://www.icann.org/nsi/coopagmt-amend19-04nov99.htm#IB8>)
Investigative Report of VeriSign-NSI Global Registry Services at 12
(January 30,2001). A copy of NSI's Investigative Report is available
on ICANN's web site.
12. The one marketing technique left open to competitors is direct mail. Direct mail can be a useful and important marketing device, but it is best used in conjunction with other marketing programs, including telephone sales, which the proposed agreements prohibit, at least if they are "mass."
13. In addition to numerous state laws regulating telephonic sales, both the Telephone Consumer Protection Act, 47 U.S.C. § 227, which directed the FCC to promulgate regulations governing telephonic sales (47 C.F.R. §§ 64.1200-1201), and the Telemarketing and Consumer Fraud and Abuse Protection Act, 15 U.S.C. §§ 6101-6108, which directed the FTC to promulgate regulations governing telephonic sales (16 C.F.R. §§ 310.1-310.8) regulate telephonic sales.
14. In addition to similar provisions in the NSI-Registry Agreement, the Accreditation Agreement requires Registrars to provide "an interactive web page and a port 43 Whois service providing free public query-based access to up-to-date (i.e. updated at least daily) data." Accreditation Agreement at § II.F.1.
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