[At-Large] protecting domain speculators from oversight

Karl Auerbach karl at cavebear.com
Thu Jan 24 23:06:14 UTC 2013

On 01/24/2013 02:46 PM, Olivier MJ Crepin-Leblond wrote:
>> My personal belief is that if one wants to try to penetrate those
>> records that one should have to initiate civil legal process by
>> submitting a properly formed legal complaint that states a concrete
>> cause of action and then to use standard procedures to have the
>> registrar of record disclose the desired information.
> That reasoning is obsolete. This is the Internet. It's international. It
> is full of people who do not care about this legal mumble jumble. That
> includes people who get scammed from phishing and make.money.fast schemes.

I am not willing to accept that due process is an obsolete concept.

Yes, it is quite true that our current legal systems are not yet as 
efficient or fast as most of us would like when procedures have to cross 
jurisdictional boundaries.

The answer is to create modern due process rather than abandon due process.

The procedures that I have suggested conform, I believe, with fairly 
widely held conceptions of due process, such as the requirement that 
those who stand in the role of the plaintiff (the one wanting whois 
data), have the obligation of stating a prima facie case supported by at 
least a minimal body of evidence that strongly suggests that the accused 
has caused some legally cognizable harm to the plaintiff.

Notice that I said "strongly suggests" rather than "proves".  I did this 
to bring speed to the proposed system.  That's why I added the 
obligation that the plaintiff must post some money that could be used to 
partially compensate the accused should the accusation be challenged and 
shown to have been made frivolously, recklessly, or falsely.

Today's whois system does not even require that the accuser identify 
himself, much less that he make an actual accusation, and even much less 
to present some evidence that an actual harm has occurred.

I have presented a mildly detailed procedure through which we could 
bring whois access into conformity with widely held (and not just in the 
US) principles of due process.

The procedure that I have presented removes much of the delay and cost 
of traditional cross-boundary legal procedures yet preserves many (but 
not all) of the safety protections.  And it works on the internet.


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