Domain Name Issues

(Mr. Alan Davidson, Staff Counsel, Centre for Democracy and Technology):

Thanks. I guess I get the back clean up. My name is Alan Davidson. I am Staff Counsel for the Centre for Democracy and Technology. I would like to thank you for the opportunity to be here today and for your endurance and patience and the openness of your Process. I think ultimately will be a metric that a lot of people look to in the court of public opinion when your final recommendations come out. So, I encourage you to try and make it as open as it possibly can and I am glad that we are here today to have this conversation. We are a civil liberties group based in Washington D.C. and we are here to comment on the civil liberties implications of the latest RFC and I would recommend that hopefully you would have had a chance to look at our comments which we are submitting. They are available on a table somewhere around here and hopefully you folks have had a chance to look at them.

I will just summarize them briefly, and they are available online also at www.cdt.org, our website. And I would just start by saying our top line here is that we are concerned that the plan put forward in RFC-3 does not adequately protect privacy and civil liberties online and that because of that it is a challenge to the basic character of the Internet, the decentralized nature of the Internet that is the promise of the Internet. And that is basically where all of our concerns come back. I would like basically just quickly to make three points, one of which is to say first of all that we think that the rules have a broad impact on the decentralized character of the Internet. We believe in a promise of the Internet to reinvigorate democracy, to promote free speech. a lot of that has to do with providing access to individuals and small businesses and diverse groups, religious, social, political groups who haven't necessarily had access to the market place of ideas before. And our concern is that unless their security and privacy is protected, that we won't realize the promise that the Internet offers to these people to get online. We view the domain name system and access to the domain name system as synonymous to access to the Internet. And because the domain name system is in many ways the one point of centralized control in what is otherwise a totally decentralized network, our concern is that the rules that you are putting into place ultimately will have a huge impact on the character of the Internet. And our concern ultimately is that people shouldn't have to sacrifice their privacy in order to have access to this new decentralized medium.

Our second point then is that the plan put forward in RFC-3 does not adequately protect individual privacy. It's spelt out pretty explicitly in our comments, but the top line is that the domain name system is a massive collection and dissemination of very sensitive information about individuals and small organizations and our concern is not about the use of this database for its intended purpose, but its use for unintended purposes. And I think that the rules that are in the RFC right now do not adequately protect people from those unintended uses, and they are not hypothetical. I think the last couple of speakers have done a good job in explaining how these are very real concerns for individuals who are concerned either about marketers out there or for software out there, or other people who want to use the information for ways that were not intended for it. This is very sensitive information of people, their home address, their phone number and putting out there in a way that is largely accessible to everybody is an invasion of their privacy. The question of human rights groups I think gives a good example of how many of these social, political and cultural groups cannot be protected and cannot have access to the promise of the Internet unless we find ways to protect this information. We need better guidelines than what we have got in our RFC right now, I guess that is our message.

And, I would sum up with a third point, which is that we believe that there is a balance that can be struck here and I think that is what is so interesting about this. We were encouraged by some of the things that were in the latest RFC, with filtered access being a step in the right direction. I was encouraged by some of the comments that we have heard from people today about some of the possibilities. I think that we have heard that there are a lot of possibilities out there about things we can do. We have laid out a whole series of models in our comments about things that could be done to try and strike the balance. It is not dichotomy between anonymity on the one hand, and absolute access to all information on the other. But, there are things that can be done between. We haven't figured out what all the answers could be. The possibilities include registrars holding this information and then releasing them in certain situations. Certain kinds of pseudonimity, fair information practices, different or better rules for access and an audit Process for who is asking for this information. All of these things could be done to mitigate some of these privacy problems. I think our bottom line is that there needs to be another, but we have not reached that balance yet. We do not dispute the fact that there are legitimate interests by trademark holders here. I think our concern is that we are putting into place rules that are going to really harm the character of the Internet and we are committed to helping in a Process to try and find the right balance here which something the right balance has not been found yet. And it is going to take some work. I appreciate the work that you folks have all done already. We would like to help if we can and when you put in your questions and hopefully you will get a chance to read our comments. Thank you for your time.

(Mr. Francis Gurry): Thank you very much Mr. Davidson. May I just ask one question before we conclude and that is, how do you find the idea of differentiation on the basis of basically commercial or non-commercial as a means of accommodating on the one hand the interests and for the protection of intellectual property, and on the other hand the interest of allowing the greatest possible freedom of expression?

(Mr. Alan Davidson): I think there maybe some promise there, but I have to honestly say I think we need to look at it more carefully because the problem that I think is how you draw that line. It is a very difficult thing and I will be interested to see if we can draw it in a way that satisfies some of these interests, but I think especially from the point of view of small organizations (end of tape) ..........................

we would be concerned about how and where they fall on that line. There are some possibilities here though and I think we are sympathetic to the idea that perhaps commercial speakers have different rights and different needs than individual speakers and non-commercial speakers and that maybe we should be thinking about that. But, I would say it is not clear that, that is the answer. Sorry for the vague answer.

(Mr. Francis Gurry): Fine, thank you. Okay, thank you Mr. Davidson very much for your interest. And so, we have come to the end and I would like to thank first of all the United States Government for once again, as I mentioned at the outset this morning, making available this facility and for the support for the conduct of this Process. I would like to thank everyone who has participated today. I think it has been certainly speaking personally an extremely valuable day. We have heard a wide divergence and diversity of views which has been a valuable part of it. Just before coming over as a matter of interest I went back to the book of Nicholas Niegroponte ‘On Being Digital’ which was published 1995 which is four years ago, and therefore was probably written a year earlier than that, five years ago. And I was interested just as to whether he had any comments on domain names. He doesn't really, but in the last part of his book interlogue 'An Age of Optimism', it is interesting that his general conclusion is the next decade will see cases of intellectual property abuse and an invasion of our privacy. So, the two things that he mentioned, two of the things that we have been discussing today as different ends of a spectrum in which there is a considerable amount of tension. We are all aware of that and we are grateful to you for the constructive way in which you are seeking to assist us in finding means of accommodating that within the general principles that I think everyone agrees, of not impeding the development of this medium.

If I may make two other points that may not be entirely obvious, just in concluding. The first of those is that we believe very fundamentally that this question and all of the other questions that are going to arise in the area of electronic commerce, questions which have to find solutions on an international basis. If solutions can't be found internationally, then there is some inherent contradiction with the phenomenon that we are addressing. And we need to avoid, I believe, a situation in which any single national approach becomes a de facto norm which other countries are required to adopt without any satisfactory international discussion.

Finally, we are as you know an intergovernmental organization and this Process has been an innovative Process for an intergovernmental organization which normally has as its interlocutors governments. We have tried in this Process to open it as broadly as possible, it remains to be seen what the final outcome will be. We have to find a way of not simply reporting our final recommendations to ICANN, but also some way of bringing it back to our own Member States. And the whole Process has been, this is another example of something in the Process where we are very much feeling our way, but we have had I think a great deal of indulgence on the part of our Member States in giving us the latitude to be able to conduct this in a way which does ensure and has ensured openness in the Process to the greatest extent possible within the time-frame constraints.

Now, just turning to my final remark concerning the Report. We had always announced that it would become available at the end of March. And our thinking right at the moment is that we have a meeting of our Expert Panel in Geneva on March 24 and 25. We feel that there is a large amount of legitimate concern in the whole community about the impact of the recommendations. That it would be wise of us to ensure that we give as much possibility for reflection in the overall time constraints as possible. We understand that the final recommendations or the Final Report will be on the agenda for action by the ICANN Board Meeting in Berlin in May. We have that as a time limit to deal with. We are therefore, thinking that it is likely that the Final Report at this stage will be published in the second week of April, rather than at the end of March. We also want to avoid publication around about the period in which various parts of the world take a number of days off at Easter. So, with that let me thank also the members of the Panel who really have given us extraordinary support throughout this whole Process and thank you once again for having come today.

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