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
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.
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.
Steven J. Metalitz
cc: Stuart Lynn, ICANN CEO
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