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Miami journalist Gus Garcia-Roberts wrote a blog post on for the Miami New Times attacking “Moniker Whois Privacy Services” as a company that distributes child pornography, based on a lawsuit that names them as one of the defendants in order to get them to reveal the actual owners of the names. Unfortunately it appears that he neither tried to contact Moniker, nor felt it necessary to research more about “whois privacy”.

(c) 2011 DomainNameNews.com (8)

When ICANN introduced the mandatory Registrar Data Escrow (RDE) for registrars in 2007, the program was a direct result of the problems experienced with the registrar RegisterFly. ICANN requires all registrars to deposit a copy of their whois information with an approved RDE provider in order to protect registrants from the loss of their domain. The system is trying to encourage registrars to deposit the underlying whois information for domains under whois privacy (which was one of the issues at Registerfly, since some of the ownership data was lost). Registrars under the old Registrar Accreditation Agreement (RAA) can still deposit whois proxy information, but the new RAA forces registrars to inform their registrants if this is the case.

In November of 2007, ICANN selected Iron Mountain as the preferred provider for RDE services. While registrars are free to select another (ICANN approved) provider, most, if not all, chose to go with Iron Mountain, also since there would be no additional cost involved. Today Iron Mountain announced in a press release, that it now offers an audit service for the submitted information.

With the ICANN Deposit Audit Service (IDAS) application, Iron Mountain systematically audits registrar escrow deposits, measures the integrity of those deposits, and reports the results to ICANN. The new application supplements Iron Mountain’s Registrar Data Escrow service. With this service, domain name registrars periodically escrow their registration information records to safeguard these intellectual property assets. Because the registration data is placed in an escrow account with Iron Mountain and verified through the IDAS application, it can be effectively retrieved by ICANN in the event of a technical, operational, or business failure of a registrar.

The additional reports will be used by ICANN to audit compliance of registrars. Details on how the audit works were not provided, but it can be assumed that the deposited data would be verified and compared with zonefile and registry records, since bulk querying the whois-servers of registrars would be against their terms of use.

“The goal of the data escrow program is to help ensure the security and stability of the Domain Name System by protecting the data associated with registered domain names in a secure escrow account,” said Mike Zupke, ICANN’s registrar liaison manager. “Iron Mountain’s Deposit Audit Service is the next step in a full range of programs and procedures that will work to safeguard registrants and maintain Internet stability.”

Disclaimer: This article has been syndicated from DomainCocoon’s corporate blog. Frank Michlick, Editor at DNN, also is founder of DomainCocoon.

(c) 2010 DomainNameNews.com

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A ruling by the US Court of Appeals 9th Circuit in the case of U.S. v Kilbride has determined that using whois privacy on domains can be considered “material falsification”.  The case involved an appeal on criminal charges of spamming. The ruling in this case provides an the courts opinion on provisions of  the CAN SPAM Act that specifically relate to the use of domains and were argued by the defense as “vague”.

In Title 18 § 1037 Section (d) (2). “Fraud and related activity in connection with electronic mail”  it states that :

For purposes of paragraphs (3) and (4) of subsection (a), header information or registration information is materially falsified if it is altered or concealed in a manner that would impair the ability of a recipient of the message, an Internet access service processing the message on behalf of a recipient, a person alleging a violation of this section, or a law enforcement agency to identify, locate, or respond to a person who initiated the electronic mail message or to investigate the alleged violation.

The defendants in this case were convicted under 18 U.S.C. § 1037(a)(3) and (a)(4) and argued that the terms “impair”, “materially falsify” and “conceal” in that code are vague.  The court however pointed out that ““When Congress does not define a term in a statute, we construe that term according to its ordinary, contemporary, common meaning.”  The court made it clear in their ruling that the defendants use of private whois information was “materially falsified”.

“. . . private registration for the purpose of concealing the actual registrant’s identity would constitute “material falsification.

Defendants assert that many innocent people who privately register without the requisite intent may be subject to investigation for violation of § 1037 until their intent can be determined, allowing for abuse by enforcement authorities. This may be so, but it does not make the statute unconstitutionally vague.”

“It should have been clear to Defendants that intentionally falsifying the identity of the contact person and phone number for the actual registrant constitutes intentionally decreasing the ability of a recipient to locate and contact the actual registrant, regardless of whether a recipient may still be left some avenue to do so. We therefore conclude Defendants had notice that their conduct violated § 1037.”

The ruling doesn’t make use of whois privacy illegal. However coupling the use of privacy services with an allegation of intentional spamming and you’ve got the cards stacked against you.

[Source : TechLaw blog]

(c) 2009 DomainNameNews.com

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Guest contributor Zak Muscovitch is a domain name lawyer, based in Toronto, Ontario, Canada. He has been practising domain name law for ten years. Go to http://www.DNattorney.com and http://www.muscovitch.com.

Privacy Protection for domainers who have legitimate portfolios is a little like a burka on a bikini model.

Although keeping one’s domain name registration details private is an attractive concept and may even help wary registrants avoid imparting too much information to prospective domain name dispute claimants, in my humble opinion, the practice is a business killer in the .CA realm. As a domain name lawyer I can rarely find out who owns what to try and put together deals. I can’t trace the history of domains to perform due diligence. I can’t identify connections between web sites and domain owners. It stymies me. And if it stymies me from doing .CA deals, that means that it is hurting business for .CA owners , who dont need any more negative factors affecting the Canadian market than they already have. Sure I can sometimes use other methods, but the utility of domaintools.com whois archives is lessening as time goes on, because it carries no new information for most .ca’s since all recent records are privacy protected.

By way of background, CIRA, the Canadian Internet Registration Authority made privacy protection a “default setting” [ed. for individual registrants], and considered this move a leadership position in the Internet world. And I did too. I am a big fan of privacy and thought that CIRA’s privacy protection policy was extraordinarily progressive and consumer-friendly. But I was wrong. It kills business. Imagine a stock exchange where there are no listings….That is what has happened here. And the benefit of privacy is nil for a domainer who is trying to hide, because there a CDRP [ed:.CA Dispute Resolution Policy] reveals your identity anhow….and hiding can actually encourage a CDRP…So it gets you nowhere other than to avoid someone like me finding out what domain name you own so I can easily contact you and know who you are, to make a deal.

In the Canadian .CA realm, domains are extraordinarily underdeveloped so we need all the contact and attention that we can get – not privacy! We dont want a marketplace with hidden vendors. We want a marketplace with vendors showing their wares off in public and making themselves available to bargain with each other.

(c) 2009 DomainNameNews.com

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