June 29, 2015
Last month, a working group for the Internet Corporation for Assigned Names and Numbers (“ICANN”) issued a report that contemplates whether the owners of certain commercial websites should be forbidden from using WHOIS proxy services to hide their identities. The working group is accepting public comments on the proposal, which has drawn both considerable praise and criticism from the online community.
Is the use of WHOIS proxy services appropriate when a domain name is registered for commercial purposes?
WHOIS Proxy Services
WHOIS is a directory of the contact and technical information for registered holders of .com, .net and .org top-level domain names. Over time, in response to the privacy concerns of many website owners, proxy services began to emerge that display their own, alternative contact information in lieu of that of the registrant’s. These WHOIS proxy services remained virtually unregulated until ICANN’s adoption of the 2013 Registrar Accreditation Agreement (“RAA”), which describes a minimum set of requirements that apply to such service providers.
A specially tasked ICANN working group began work in December 2013, with the aim of developing policy recommendations to guide ICANN’s implementation of an accreditation program for WHOIS proxy services. Notably, two questions posed to the working group were: “Should ICANN-accredited privacy/proxy service providers distinguish between domain names used for commercial vs. personal purposes? Specifically, is the use of privacy/proxy services appropriate when a domain name is registered for commercial purposes?”
ICANN Working Group’s Initial Report
This May, the working group issued its Initial Report on Privacy & Proxy Services Accreditation Issues. In the 98-page report, although the ICANN working group agreed not to distinguish between commercial and non-commercial website registrants based on their organizational or entity status, the group did not reach a consensus on whether to forbid registrants from using WHOIS proxy services for certain types of commercial activity associated with a given domain name.
While the majority of the working group did not think it either necessary or practical to prohibit domain names being used for commercial activity from using WHOIS proxy services, some members of the group argued that “domains used for online financial transactions for commercial purpose should be ineligible for privacy and proxy registrations.”
Before making its final determination, the working group has asked the public for responses to the following questions regarding WHOIS proxy services:
(1) Should registrants of domain names associated with commercial activities and which are used for online financial transactions be prohibited from using, or continuing to use, privacy and proxy services? If so, why, and if not, why not?
(2) If you agree with this position, do you think it would be useful to adopt a definition of “commercial” or “transactional” to define those domains for which P/P service registrations should be disallowed? If so, what should the definition(s) be?
(3) Would it be necessary to make a distinction in the WHOIS data fields to be displayed as a result of distinguishing between domain names used for online financial transactions and domain names that are not?
Should commercial websites get to stay private?
The working group’s questions regarding WHOIS proxy services have been met with both supportive and opposing responses. Proponents of implementing a ban have raised a number of points in support of more regulation in this area, including:
- “Offline world” businesses are often required to register with relevant authorities and disclose details about their identities and locations;
- Domains that conduct financial transactions online should have openly available registration information for purposes of consumer self-protection and law enforcement purposes; and
- Publicly available contact information would simplify the process of contacting website owners accused of infringing on third-party intellectual property rights.
On the other hand, critics of the proposal have cited many concerns with the proposed ban, including:
- It would be practically difficult, and perhaps unnecessary, to differentiate between “commercial” and “non-commercial” websites;
- The ban could apply to every website hosting advertisements to generate ad revenues;
- The limited value of this change is manifestly outweighed by the risks to website owners who will suffer a higher risk of harassment, intimidation and identity theft;
- There may be valid reasons why domain name registrants using their domain names for commercial purposes may legitimately need WHOIS proxy services (e.g., the exercise of political speech); and
- Some jurisdictions already require commercial website owners to disclose their respective contact information prominently on their websites rather than in the WHOIS directory.
ICANN is accepting public responses to the questions set forth above through Tuesday, July 7, 2015. After that date, the working group will prepare a Final Report with its recommendations regarding WHOIS proxy services.
The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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