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Telnic proposal spurs internal ICANN debate

Road map at last for intractable Whois mess?

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ICANN 2007 - Los Angeles The acrimonious debate surrounding the Whois database is ICANN's most enduring ritualistic dance.

Three times each year, The Register covers the ICANN meetings; and at each meeting the same intransigent entrenched opposing interests, after considerable howling and gnashing of teeth, throttle whatever reform efforts are on the table, leaving the status quo intact.

Last week's meeting in Los Angeles was the 23rd consecutive meeting with Whois reform on the agenda, and also the 23rd consecutive meeting without meaningful progress. The Generic Names Supporting Organization (GNSO) council meeting that voted on three different motions of the Whois database (though without any real effect) degenerated into utter farce. Is there really any way forward?

Outside observers should be forgiven their cynicism but, with almost no fanfare, a proposal to reconcile the requirements of the Whois database with the privacy laws of European Union countries, which are generally more stringent than those of the United States, has been percolating through the back halls of ICANN and inspiring a bit of optimism.

Sterile debate

The proposal - an amendment to the Telnic.org Registry Agreement - did not receive the floor time we had hoped at the ICANN meeting, but is being taken seriously at the upper level of ICANN management and deserves serious consideration.

The Whois database debate is important not only for privacy reasons but because the conflict between the registrant reporting requirements of the Whois database and the laws of EU countries has up to now stifled the development of EU-based generic Top Level Domains (gTLDs), forcing EU registrants to register domains through their country code TLDs such as .uk or .fr, which, for sovereignty reasons, are not subject to the Whois requirements. The expansion of the gTLD space is a top ICANN priority, and it grates on the organization that the world's largest trading block is hamstrung in this emerging economic field.

The proposal has been put forward by the ersatz operator of the .tel gTLD, Telnic.org, a UK-based company that has been working for years to develop a service that would provide registrants the opportunity to publicize whatever contact information about themselves or their business they so desire, in a kind of net-based directory. As a UK-based company, Telnic has been struggling to balance the Whois database requirements with the conflicting privacy requirements of UK law.

Telnic's latest effort at balancing UK law with ICANN policy is a tiered access proposal, in which natural persons (as opposed to legal persons, such as corporations) are given the opportunity as a matter of right to opt-out of the disclosure requirements of the Whois database, subject to "requestors...able to demonstrate legitimate need" for access to the obscured personal information. Obviously, that means law enforcement, but it also applies to the anyone in the general public with a demonstrable, legitimate need.

Requestors need to register only once with Telnic's Special Access Service, and then demonstrate the required need when requesting information about a specific site. To prevent spamming or other potential abuses, requestors are only allowed to make five requests in any 24 hour period.

Indeed, Telnic appropriately enough reserves the right to deny access to any requestors engaged in spam, unsolicited marketing, or other dubious activities.

The Registry Operator reserves the right to take any preventive action necessary to prohibit any requestor of WHOIS data from using the WHOIS service to collect WHOIS data on Natural Persons for marketing purposes, spamming, data-mining, or unlawful purposes.

Telnic originally proposed to charge requestors for access to restricted information, but the latest amendment makes access free, effectively shifting the cost burden from the requestor to the Telnic registry itself. This is a major concession, inasmuch as most of the intellectual property constituency's complaints about abandoning the Whois database model usually boil down to the potentially increased costs born by businesses seeking to protect their trademarks - protestations to the contrary aside.

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