[At-Large] Impressions from the Whois-Review

Karl Auerbach karl at cavebear.com
Mon Jan 31 20:24:59 UTC 2011

On 01/31/2011 11:04 AM, Bill Silverstein wrote:

> If the Whois information is considered useless, why would it be a crime to
> provide false information?

Because the intellectual property protection industry (of which I am a 
dues paying member) desires whois as an inexpensive extra-judicial means 
of tracking down those who we believe are offending against the trade 
and service marks of our clients.

The goal is cheap and fast - fairness is not part of the equation.

(By-the-way, I draw a big line between the intellectual property 
*protection* industry and the intellectual property *creation* industries.)

> False whois information has always been a factor in determining bad faith
> registration in ACPA and UDRP actions.

Again, because it makes it easier, faster, and cheaper for intellectual 
property protection lawyers to take domain names away from people who 
may discomfort their clients even if under the laws of trade and service 
marks they would not have a leg to stand upon.

The industry of intellectual property protection lawyers, is big in DC 
and big in ICANN.  It's no wonder why the UDRP was a big expansion over 
trade and service mark law.

The UDRP was designed only to protect trademarks; the UDRP does not 
protect other legitimate rights in names.

"Bad faith" is only valid in the context of protecting trademarks.  If 
one feels that the name of their family, their school, their religion, 
their god, their country is offended then the UDRP does not apply and 
neither does "bad faith".

"Bad faith" is an invention of ICANN's UDRP; and the UDRP was ramrodded 
through ICANN during its very early days by the intellectual property 
protection constituency at a time before those contrary constituencies 
recognized by ICANN at the time had a chance to form.

The drumbeat by the intellectual property protection industry for the 
UDRP was so intense that a request for a slow-down in the process in 
order to allow other voices to form - a request made by respected 
academics and professionals - people such as Larry Lessig - caused 
ICANN's own President to label those voices of reason as "arrogant" 

As for Savonarola and his bonfires - I take issue with the claim that 
just because the desire for domain names might be a vanity that we 
should therefore dispense with privacy and even anonymity.  Trademark 
owners wouldn't be so hot to protect their marks if that vanity were not 
also valuable.  It may be vain to own a diamond, but the diamond is 
valuable despite the vanity.

Moreover events of the last few years in Asia and the last weeks in 
northern Africa are re-teaching the lesson that there are groups, 
governments, and people out there who will go to great lengths to 
silence voices that cause discomfort.  Whois helps that suppression.

As I wrote a few weeks back there are methods to introduce some degree 
of balance and fair process back into Whois access.  The most basic 
being a requirement that those asking for whois data leave their own 
names and state the nature of their accusation and supporting evidence.

Real law enforcement agencies are not part of the whois equation - those 
agencies have investigative powers beyond those of normal people.  And 
along with those powers they are bound (we hope) by rules that conform 
the use of those powers to the requirements of due process and fairness.

(A bigger question is not "whether law enforcement" but "who is law 


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