[At-Large] Impressions from the Whois-Review

[Karl Auerbach]

On 01/31/2011 05:03 PM, Derek Smythe wrote:

> http://www.icann.org/en/registrars/ra-agreement-21may09-en.htm#3.3
> So you scoff at this?

Why do you think that is relevant?  Because of the lack of third party 
beneficiary rights neither you nor I have any rights to enforce it.  It 
is simply a contract between ICANN and an ICANN guild member about the 
guild's products and sales practices.

ICANN tself may be trumped by this in the US and by similar laws in 
other countries:

http://www.law.cornell.edu/uscode/uscode15/usc_sec_15_00000001----000-.html

The issue being discussed here is the same one that was discussed at the 
IFWP meetings before ICANN was even formed - the matter of how to 
protect privacy of domain name registration information (whois).  The 
registrar agreements with ICANN are reflections of that issue, not the 
source of authority for that issue; those agreements can be changed to 
reflect policy changes.


> What fascinates me is that you can have an agreement with a
> non-existent party or a party who you do not know who it is

No.  A corporation is not a "non-existent" party; it is fully 
responsible and identifiable "person" under the law.  But it is a 
"person" that can not be jailed, can be so thinly funded that it can't 
satisfy a judgment, and which would then have to be penetrated in order 
to find its owners (who themselves might be thin or offshore corporate 
entities.)

The point is that we allow those corporate things to register domain 
names - yet they are really nothing more than a entry in a secretary of 
state's database - and yet start to scream against natural people who 
seek the same kind of privacy for their affairs.

> So, what protection does the casual internet user, who may or may not
> be a domain owner, have?

Privacy protection?  Under the lex-ICANNia, none.

If a domain name owner has a mark, they've got the UDRP and other laws.

If you get spam, then get your attorney general to act to enforce the 
laws that exist.  He/she won't act - then get a new one using the 
political process (most of us elect our local attorney generals).

		--karl--