[At-Large] [ALAC] WHOIS Studies

[Karl Auerbach]

Roberto Gaetano wrote:

To begin - it is really good to see your name on an email again.  I trust you are doing well.

>> I disagree. Though many countries have privacy protections 
>> not provided by the USA, I suspect that those countries will 
>> allow disclosure when a party agrees to that disclosure, by contract.
> 
> Maybe I'm missing something here, but the issue is what happens when the
> party does *not* agree.
> In some countries you cannot force them to agree, therefore the problem
> about different competitive advantage for registrars.

This is far from an easy point.  There is in US contract law the idea of a "contract of 
adhesion" - the most typical example is when you drive into a parking lot and a machine 
ejects a bit of cardboard on which are printed purported terms and conditions.  Are you 
bound by those or not?

Suffice it to say that the answer to that question probably varies from jurisdiction to 
jurisdiction around the world.  And since the Whois issue spans the world, I'm sure that 
local answers will vary.

One aspect that may influence those answers is the fact that there is really no practical 
alternative to ICANN's whois regime.  (Well, there are the ccTLDs and that perhaps weakens 
the entire thought that follows.)

One may argue that because of ICANN's all-enveloping coverage and also the fact that 
ICANN's UDRP and whois policies were made without much (or any) power of the public at 
large to affect those policies, that the privacy-breaking aspects of whois should be 
interpreted in a narrow or weak (i.e. protective of privacy) way.

I have long suggested that any one who makes an inquiry into the whois data should be 
obligated to leave an electric "calling card" record that informs the data subject of the 
name, identity, affiliation, contact information, and asserted reason for making the 
inquiry. It seems only fair that if Mr. X is asking about you that you should be able to 
know who Mr. X is and why he's looking you up.

		--karl--