Privacy Advocates' Campaigns Against Aspects of ICANN Proxy Services Proposal Likely To Affect Final Outcome
Parallel campaigns from two coalitions of privacy advocates are dominating the debate over an initial report from an ICANN working group studying whether to recommend that ICANN modify rules for its WHOIS registration database to require the owners of commercial websites supply their contact information rather than information for privacy and proxy services. The initial report, from the Generic Names Supporting Organization’s Policy Development Process Working Group on Privacy & Proxy Services Accreditation Issues (PPSAI), generally addresses issues on accrediting privacy and proxy services. The Electronic Frontier Foundation and other privacy advocates raised concerns about the section of the PPSAI report that explores whether to prohibit commercial website owners from using proxy services.
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Some broad definitions of “commercial activity” online include personal websites that run ads or seek donations to pay for website-related expenses. EFF and others have raised concerns about PPSAI proposals to require registrars to release domain name owner information for websites without a court order when a website violates IP rights, distributes malware or engages in illegal activities.
EFF, Fight for the Future and domain name registrar Namecheap jointly launched RespectOurPrivacy.com in early June to urge individual Internet users to comment on the PPSAI report, including a form letter that users can submit. “I urge you to respect internet users' rights to privacy and due process,” the form letter said. “No one’s personal information should be revealed without a court order, regardless of whether the request comes from a private individual or law enforcement agency.” Hopefully "that’s a message that the working group” will factor into its deliberations, said EFF Staff Attorney Mitch Stoltz in an interview. The separate Save Domain Privacy campaign, backed by GoDaddy and other domain name registrars, is collecting signatures on a petition to be submitted to ICANN by the Tuesday comment deadline on the PPSAI report. Petition signatories would support “the legitimate use of privacy or proxy services to keep personal information private, protect physical safety, and prevent identity theft” and that “privacy providers should not be forced to reveal my private information without verifiable evidence of wrongdoing.”
PPSAI would have been unlikely to further pursue a potential ban on websites that include commercial activity from using proxy services for WHOIS registration even if EFF and industry-backed campaigns hadn’t inundated ICANN with thousands of comments, said group member Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw, in an interview. PPSAI is seeking to recommend rules on proxy services registration that have a wide consensus among ICANN stakeholders, and even stakeholders who worked on the initial PPSAI report weren’t united in supporting the proposed ban on commercial websites’ use of proxy services, Corwin said. ICANN didn’t comment.
ICANN may take the campaign-generated filings into consideration because “it’s unusual for ICANN to get this mass outpouring of comments” on policy issues, said Corwin. It may undervalue their importance because the campaigns distorted PPSAI’s planning of the initial report and the proposed ban’s importance within the context of the full PPSAI report, he said. RespectOurPrivacy.com contends that PPSAI is dominated by MarkMonitor and backers of the failed Stop Online Piracy Act, but those parties were balanced out by SOPA opponents and other stakeholders, Corwin said. He said the proposal for mandatory release of owner information for IP rights violations and other issues is proposed as a last resort, and may be difficult to enforce.
It’s “hard to imagine” that ICANN wouldn’t be impacted by the “magnitude of interest” that the PPSAI report generated, FairWinds Partners CEO Nao Matsukata in an interview. Whether that means the working group ultimately drops the proposed ban on commercial websites’ use of proxy services depends on whether PPSAI can agree on a definition of what constitutes commercial activity, he said. “If they can figure that part of it out,” it could work, but if the group isn’t able to reach consensus on a definition, it would be difficult, Matsukata said. The debate also generates questions about whether ICANN would be able to enforce a ban or the mandatory release of domain name owners’ information for IP rights violations and illegal activity, Matsukata said. ICANN would have to grapple with how it can venture "this very complex area of maintaining protections over information" he said. Currently, “if there’s a reason to seek that information, you can get” it via court order.
The number of public comments that the RespectOurPrivacy.com and Save Domain Privacy campaigns generated is "indicative" of the lack of consensus within PPSAI on the proposed ban and the requirement for mandatory disclosure, Domain Name Association Executive Director Kurt Pritz told us. "There are entrenched positions on either side" of both issues, he said. The proposal for a mandatory disclosure requirement is difficult to reach consensus on partly because PPSAI needs to account for the practices of a wide variety of registrars, Pritz said. "Trying to define a really specific set of rules that covers all of them is difficult," he said.