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Intellectual property debate heats up, as ICANN looks to the future

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Whois

Changes to the Whois procedure have garnered even more headlines. As part of a larger debate between the US and Europe over privacy rights, which are generally more tightly protected in the EU than the US. The discussion group was weighted heavily in favor of the intellectual property lawyers, generally American, in attendance, which is not much of a surprise.

The Whois procedural changes under consideration concern just how much information about the registrant of a particular website should be made available to the public. Law enforcement and industry trade groups tend to weigh in on the same side of this issue, although it is not clear that their needs are the same. Law enforcement has always had access to certain databases unavailable to John Q. Public, and that could certainly be the case with the internet as well.

However, more than one individual complained that law enforcement typically won't act on phishing complaints, for example, unless all the relevant information is handed to them on a silver platter. The murkier private law enforcement community also has its fingers in this pie, although to what extent the private law enforcement community won't continue to utilize the extra-judicial methods it currently utilizes remained undiscussed. Expect to hear the industry buzzwords "trust" and "security" tossed around quite a bit in this debate, although it seems doubtful that Europeans will abandon settled law in their own countries so that American corporations can save a few bucks.

The current compromise involves doing away with the disastrous proxy registration system, in which for a fee registrars would register anonymous Whois information, and let registrants designate an contact agent instead.

Stacy Burnette, the director of contractual compliance, joined the meeting toward the end, and emphasized that ICANN understood the need to communicate more with the public when problems arise with a certain registrar. The Registerfly fiasco apparently has provoked some serious soul-searching on the part of ICANN, as she was talking about biannual compliance reports. An even better suggestion came up - why not post the actual audits on ICANN's website, so the public can be informed as to which registrars are dodgier or more careless than others?

In San Francisco, where this author lives, the restaurant industry raised hell when the city decided to post health inspector scores on the city website as well as in the restaurants themselves - and yet, the local restaurant scene continues to thrive, and the issue is moot.

Some kind of public tracking system is clearly in order here, and the public's right to know should take precedence over ICANN's squeamishness. Maybe it wouldn't fly with the current Registrar Accreditation Agreement (RAA), though no one at the meeting was quite sure, but while we're discussing revamping the RAA, throw that in there too. After all, ICANN has the imperial authority at the very least to choose not to renew an RAA - which would effectively put the registrar out of the domain registration business and probably get them to agree to public audits without a fight, as long as ICANN came at them with a little bit of sack.

That was the most useful proposal of the last two days.

Other issues were raised regarding the Internationalization of Domain Names (IDNs) and potential problems with generic trademarks (ie., Apple, Inc., and a .apple TLD), but these are the kinds of technical details that are relatively uncontroversial or uncommon.

ICANN uncontroversial? Never.®

Burke Hansen, attorney at large, heads a San Francisco law office

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