You make many good points.  I would like to continue the discussion about what the right balance would be.  One question: in your view, who are the "anti-privacy" interests and what are their motivations?

Cheryl B. Preston
Edwin M. Thomas
Professor of Law
J. Reuben Clark Law School
Brigham Young University
424 JRCB
Provo, UT 84602
(801) 422-2312
[log in to unmask]

>>> Dan Krimm <[log in to unmask]> 10/28/2007 4:16 pm >>>
At 3:09 PM -0600 10/28/07, Cheryl Preston wrote:

>BUT, I currently see no hope that the global consensus is going to reach
>total abandonment of WHOIS without replacing it with something that
>allows, upon service of an appropriate court order or in compliance with
>treaty rights or otherwise, some mechanism whereby those to whom ICANN and
>IANA (and their contractually empowered, substructure agents) have granted
>power to access to the root can be held responsible for seriously illegal
>activity based on international law standards.



Certainly, and as I understand it (and certainly in my own personal case)
NCUC's support of motion #3 is not intended to just leave it at that, but
rather to motivate a return to negotiations on a more equal basis, where
all parties will have an incentive to deliberate in good faith.

The point of sunsetting the status quo arrangements for Whois is not to
permanently abandon it, but rather to create the negotiating environment
for a more properly balanced solution where justified access to identifying
information is granted in specific cases to specific agents (and abuse of
that access is punished) and personal privacy of natural-person registrants
is protected as a default.

If anti-privacy interests come into negotiations with everything they want,
and the only possible outcome of negotiation is for them to lose something,
there is utterly no incentive for them to negotiate in good faith.  They
may try to finesse their rhetoric in a way so as to indicate an abstract
consideration of privacy concerns, but when push comes to shove and the
final specific and detailed result is defined, they will not budge.

Expiring the Whois status quo is not the end, it is intended as a new
beginning.  Sometimes you have to take a step back (and "over") in order to
avoid an obstruction from taking additional steps forward.  If the status
quo cannot serve as a platform to move forward (as experience with this
year's Whois Working Group demonstrated pretty well), then it is only an
obstruction.

Dan