[At-Large] 9th Circuit Court ruling on ICANN Contract.

Evan Leibovitch evan at telly.org
Mon Jan 10 14:52:53 UTC 2011

On 9 January 2011 18:31, Karl Auerbach <karl at cavebear.com> wrote:

> We seem to be engaged in a game in which the needs of "law enforcement"
> are being used as an excuse to open personal data to everyone, law
> enforcement or not.

The flip side of openness is accountability. Freedom of speech is usually
accompanied by the requirement to be responsible for what one says.

It is not a defense to, say, slander, to argue that one's right to privacy
entitles you to say anything about anyone then duck for cover behind a wall
of obfuscation. As a result, newspapers have traditionally not allowed
unsigned letters to be published -- while most will respect a request to
withhold the signature, the newspaper will still retain it in case *it* is

The car analogy was used earlier. I'm not aware of any jurisdiction on earth
that doesn't have government-issued plates used to identify a cars owner. It
is usually illegal to have incorrect identity information attached to
license plate data. Proxies (such as leasing or rental agencies) are common,
but they maintain accurate records regarding possession (if not ownership)
of the car at any particular time. And as far as I know, access to
car-ownership data is used not just by law enforcement but also by insurance
companies, credit bureaus, etc. While such access is explicitly acknowledged
by the owner, it's usually given in order to get access to something else
(insurance, credit, etc).

Furthermore, I would note that many jurisdictions make a distinction between
commercial and non-commercial use of cars. In most North American
jurisdictions, the license plates are a different colour and there are
different fees and requirements,. Anyone who was in Cartagena must have
noticed that all commercial vehicles -- not just taxis -- had their license
plate number painted on the sides. Where I live in Ontario, Canada,
commercial vehicles *must* display the name of the vehicle's owner on the
side. (Most tractor-trailer cabs going interstate do this.)

Why can't these principles -- widely understood in other realms, including
those that value privacy -- be adapted for DNS?

My own view, based on this is that:

   - It should be a criminal offence to have incorrect information attached
   to a WHOIS entry
   - While proxies may be used, the proxy listed must be legally responsible
   to have accurate info on the owner
   - Owners may grant (non-law-enforcement) access to their info by contract
   and proxies must honour such requests
   - Commercial domain operators (that is, those who use websites on those
   domains to conduct transactions or display advertising) may not use proxies

What is the argument against this? What right to privacy -- or to obfuscate
their identify -- exists for those who engage in financial transactions?
(Outside of Switzerland, that is)

- Evan

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