[governance] Re: [WSIS CS-Plenary] ICANN/ITU "legitimacy"

[Milton Mueller]

>>> Tom Vest <tomvest at comcast.net> 4/10/2005 3:22:30 PM >>>
>WHOIS requirements don't apply to Internet users; they 
>apply to Internet *producers*, i.e., entities that wish to 
>participate in and add to the Internet's physical and logical 
>architecture. 

I'm sorry, but you are incorrect about WHOIS, and your attempt to
invent a legal/regulatory distinction between producers and users has no
basis in any law or regulations, or ICANN contracts. 

Whois access to personal contact data did not get created because of
any alleged obligations of "producers" - it came into being by accident,
when the directory system set up by a tiny, closed world of techies was
suddenly transformed into a mass global open medium. Once IPR holders,
the people who sell them surveillance services,and law enforcement
agencies found it convenient to get information for free that they used
to have to follow due process to get, we got stuck where we are now.

Some European states have laws that require businesses to post their
contact information on their web sites, but they exempt homes and
individual web sites. Most jurisdictions don't find this distinction
very hard to make, although of course there are gray areas. Are you
trying to say that the Internet is only a tool of commerce, not also a
tool of human communication? 

Your distinction between "producers" and "users" doesn't work. There is
no intellgible distinction between "users" and "entities that wish to
participate in and add to the Internet's physical and logical
architecture." Everyone connected to the Internet participates in its
logical architecture. Tell me: is someone who has no domain name but
does have a home wireless network with a fixed IP address a "producer,"
or a "user"? How is that person different in status from someone who
registers a domain? Registering a domain name is something many people
do just to get a portable email address. They have less infrastructure
than someone with a wireless home network
 
>The fact that some producers are 
>sole proprietors (many of whom outsource all of the actual 
>infrastructure requirements to a third party) shouldn't earn them a 
>complete pass, and shouldn't obscure this basic functional
distinction.

In effect, you are saying that someone who subscribes to the telephone
system and acquires a phone number should be regulated the same way a
telephone company is. It's crazy. You can get an unlisted phone number
for your home. Why can't you get a domain name for home use without
publishing your private contact data? 

>It seems to that linking speech to identity is only problematic in 
>jurisdictions where speech is not valued AND means of expression 
>are strictly controlled. Where freedom of speech is valued, speaking 
>"for attribution" should be taken as the main case, and anonymous 
>speech the exception. 

Is this an argument of what you think the law is, or what you think it
ought to be? I'd suggest that you read the U.S. Constitutional case law
on the relationship between free speech and anonymity, then express an
opinion. Also read the opniions of European privacy authorities on whois
http://www.icann.org/presentations/papapavlou-whois-rome-03mar04.pdf  

>Absent tight controls on means, there are ample mechanisms 
>for speaking "without attribution"  that don't require the wholesale 
>anonymization of the Internet.

Turn this around, and you will understand better what the real whois
debate is about. WHOIS as currently structured requires a domain name
registrant to provide their home telephone number and address to ANY
anonymous user of the Internet. When your whois record is viewed, there
is no record, you don't know who did it, what the reason for viewing it
was, or what they are going to do with it. Isn't it illogical for you to
attack anonymous expression, while supporting anonymous and wholesale
access to private contact data? If anonymous speech can be abused, can't
anonymous access to personal contact data? 

And have you forgotten that there are ample mechanisms for acquiring
information about Internet users for legitimate law enforcement purposes
without making that information available to every spammer, identity
thief, stalker, information harvester or curious person in the world? 

--MM