CircleID

Way to go dotMP!

dotMp's restrictive Whois policy is a good example of how giving consumers more than one alternative will help spur innovation in the marketplace.

As the first round of new ICANN tld's have demonstrated, even with millions of dollars of investment, it will take years before new tld's are sustainable and profitable.

And you can bet that every new tld approved by ICANN will have a competitor in the ccTLD space.

The competitive advantage of re-purposed ccTLD's will be their business model.  They have none of the up-front capital costs that ICANN imposes on them.  As a result, they can be more patient in establishing a customer base without the pressures of shareholders that need to see results next quarter.

Tom Barrett
EnCirca, Inc.

In the event that the holder of a dotMP address violates the rights of others (copyright, trademark, defamation, what-have-you), what does dotMP contemplate doing? A public, accurate WHOIS allows disputants to deal directly with one another and analogizes to public records in land ownership. (But it's a weak analogy: land title records mostly serve liquidity in land markets, not dispute resolution.) By withholding information about second-level domain owners, isn't dotMP inviting liability onto itself - or at least a heck of a lot of legal actions to reveal domain holders' information?

Jim - I suggest the better question is why should a purported copyright interest trump a genuine interest in privacy? Your question makes that assumption once you accept the notion that WHOIS should be public for the purposes that you cite. Imagine requiring mp3 device makers APPLE, DELL, and HP (but, not, perhaps, SAMSUNG, PIONEER, or SONY - they are arbitrarily treated differently) to publish a list of names and addresses of all of their clients/customers in a public database simply because an overwrought third-party finds access to this public database lowers their transaction costs in potential intellectual property litigation: would most folks feel warm and fuzzy about the third-party in complete disregard of the interests of APPLE, DELL, HP and, most importantly, their customers? I suspect most would think not. Why should the domain name business be treated differently?

- Rod Dixon
(Author)

Their site says that ".mp is the only Internet top-level domain (TLD) designated exclusively as the mobile address." This seems like misleading marketing hype to me, given that .mp is not officially designated as anything other than the country code domain for Saipan.

Thanks for your reply, Rod.

In answer to your question: Law enforcement, both private and public, trumps privacy interests all the time. Indeed, investigation of purported law violations trump privacy. There is copyright law, so investigation of copyright infringement trumps privacy. That's not meant to be an anti-privacy statement or a pro-copyright statement. It's just the way it is.

A registry/ar is different from a seller of goods. A domain name is a license to associate a character string with an IP address. A seller of goods (like electronics) might be a reliable source of purchasers' identities, but it is not a reliable source of users' identities (especially of commodities like electronics). A seller has no power to affect the post-sale use of the good. There is no ongoing commercial relationship between buyers and sellers as there is between licensors and licensees.

My question wasn't meant to be normative. I just wonder: In the absence of a published WHOIS, the only source for the identity of the alleged law-violator is dotMP. What does dotMP plan to do when a pile of subpoenas land on its desk(top)? Fight every one? Review each on the merits and comply or move to quash selectively? Pass them on to clients and comply after a set period without response? These are all possibilities, but they seem rather expensive compared to stepping out from between litigants by publishing a WHOIS. I didn't suggest a requirement that it publish a WHOIS, but it might find itself really badly wanting to when its legal staff is larger than its technical staff.

Jim - in the first paragraph of your response, there is a flaw in your argument, and it turns on a mistaken assumption about the relationship between privacy interests and the countervailing interests of law enforcement or intellectual property interests. Simply put, there is no reason to believe that the privacy interests of domain name registrants should recede and fade away by the simple fact that someone has asserted a need to investigate the identity of an owner of a specific domain name.  Indeed, it seems quite absurd to even suggest that an individual need to investigate specified facts could warrant the requirement of a public database that trammels upon the privacy rights of thousands - - dare I say, perhaps, millions - - of domain name registrants. 

One need look no further than the content of American law to find analogic instances of how privacy rights and law enforcement interests are balanced so that you do not have the result ICANN supports for WHOIS.  The Privacy Act, for example, prohibits certain disclosures by the Federal government of data stored in otherwise public databases.  Similarly, the Electronic Communication Privacy Act sets forth privacy-enhancing procedures that law enforcement must follow when intercepting certain communications.

There are countless other examples of how interests are balanced.  ICANN's WHOIS policy, on the other hand, presently reflects no such balancing, and the proposals for the future do not look much better.

As for your last point about dotMP, may I suggest that you visit their website (http://get.mp) to see how the dotMP folks invision responding to the parade of horribles you identify. Or, visit other registrars who have adopted similarly interesting policies that are supportive of the privacy interests of their customers.

The questions you raise illuminate a problem with the focus in the current and previous debates about WHOIS.  Far too many accept as correct the unstated proposition that - - a public WHOIS is an integral part of ICANN's management of the domain name space.

If the assumption was to the contrary, then questions like a few you raised, at best, would seem odd as soon as they were articulated. To build upon this pont, imagine asking the same questions you raised concerning a claim of copyright infringement in a different context, for instance, you would ask what does COMCAST/AOL/HARVARD/IBM "plan to do when a pile of subpoenas land on [its] desk(top)? Fight every one?"

I suspect you may have a number of answers to that question(s), but I doubt any answer would be the same as requiring a public database. In other words, assuming that a lawyer is having some difficulty easily identifying a copyright infringer, could you select one potential recipient and explain why a public database containing personal indentifying information about its clients is the right rational pertinent public policy choice?

- Rod

Thanks again, Rod. I went and found the relevant language on dotMP's site, which I should have done in the first place.

dotMP's "Dispute Policy," a part of its Terms of Use, says:

"You acknowledge and agree that certain individuals or organizations may attempt to exploit the terms of this Dispute Policy and may request Customer Data in bad faith and that Saipan DataCom is not capable of determining and will not attempt to determine the validity or nature of requests for Customer Data. You acknowledge and agree that Saipan DataCom may be served with subpoenas demanding your Customer Data and that we will comply with such subpoenas provided that such subpoenas have been issued by a court of competent jurisdiction and provided that such subpoenas has been properly served on us. You acknowledge and agree that Saipan DataCom may, but is in no way obligated to, provide you with notification of a subpoena(s) for your Customer Data, including but not limited to providing you with a copy of such subpoena(s) via e-mail."

Key points: No obligation to protect privacy when served with a subpoena. Not even an obligation to notify the user.

So, yes, people with dotMP domains have privacy in their administrative contact information when it doesn't matter all that much (my opinion - not interested in debating that here). When the chips are actually down, privacy goes away.

I'll refrain from joining in the big-picture debates that you're fixed on. I never once talked about requiring a published WHOIS. But I think it's advisable to think through what happens with alternatives like this one.