ICANN as Fake Institution: WHOIS, Privacy and Credible Commitment

Q: When is a policy adopted unanimously in ICANN not really a consensus policy?
A: When the US Government says it isn't.

Case in point. A new top level domain registry, TELNIC, has been authorized to run the .tel domain. Their idea is that .tel will “allow and encourage individuals and corporations to manage a universal identity” on the Internet. If its idea works, lots of ordinary people will register under the .tel domain and combine their telephone numbers, email addresses, and other identifiers. The company is based in the UK.

TELNIC has a problem: ICANN's contracts require it to display all the personal contact data of its registrants through a service known as “Whois.” But unrestricted access to personal contact data, aside from being a rather bad idea, is against the law in the UK. It follows European, not American, privacy and data protection rules. So after consulting with the UK's data protection authorities, TELNIC asked ICANN to modify its Whois requirement.

One would think that that request would be easy to honor. ICANN has, after all, already passed a Whois Procedure for Conflicts with National Laws” that allows registries to apply for such exceptions. In December 2003, the second Whois Task Force of the GNSO recommended the development of a procedure to allow gTLD registries and registrars to demonstrate when they are prevented by local laws from fully complying with the provisions of ICANN contracts regarding personal data in Whois. The policy was passed by the GNSO Council, ICANN's domain name policy development organ, in November 2005. In May 2006, the ICANN Board adopted the policy and directed ICANN staff to develop and publicly document a conflicts procedure. In both cases, the policy was passed unanimously.

Fast forward to the middle of 2007, when TELNIC actually attempted to get an exception. Out of the blue, we were told that “The Whois Procedure for Conflicts with National Laws is not yet implemented pending GAC input.” GAC is the “Governmental Advisory Committee,” ICANN's liaison with the world's governments. But what is the hold up, what is stopping GAC from its input? Any idea that the the world's governments as a group want to stop the national exceptions policy is obviously false. The GAC has already adopted a set of public policy principles on Whois that stated bluntly, “gTLD Whois services must comply with applicable national laws and regulations.”

No, it is only one government — the USA — that doesn't like its implications. US policy has always been that all personal contact data must be open to anyone on the Internet who wants to view it, for any purpose. Any why does the USG feel that way? When TELNIC applied to restrict access to its registrants' private data, the trademark and copyright interests kicked up a huge fuss. They bullied TELNIC into making major concessions — allowing, for example, trademark lawyers to get much broader access to registrant records. No other constituency, such as privacy advocates, were allowed to enter into these negotiations. Still, they were not satisfied. They know that any exception to Whois, no matter how small, sets a precedent and confirms what everyone else in the world knows — that ICANN's contracts violate national privacy laws around the world.

In other words, the consensus policy is not really a policy. Why? Because the USG (and the trademark lobby that dictates its policy on these matters) doesn't want it to be a policy. These kinds of manipulations confirm the world's worst fears about Internet governance and the American role in it. We are presented with a frighteningly clear picture of a rigged game, a violation of the credible commitment to rules and process that must underpin international institutions. For years now, the US government and the trademark lobby have been trying to play a “heads I win, tails you lose” game with Whois. This is just the latest, albeit one of the most blatant, examples. Sustained protests of this policy are expected at ICANN's upcoming annual meeting in Los Angeles.

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