This Issues Report has been prepared according to Item 2 of the GNSO Policy-Development Process (PDP), adjusted as appropriate to accommodate the ongoing transition to the New Bylaws' procedures. Item 2 of the PDP lists the following elements for an Issue Report:
- The proposed issue raised for consideration;
- The identity of the party submitting the issue;
- How that party is affected by the issue;
- Support for the issue to initiate the PDP; and
- A recommendation from the Staff Manager as to whether the Council should initiate the PDP for this issue (the "Staff Recommendation"). Each Staff Recommendation shall include the opinion of the ICANN General Counsel regarding whether the issue proposed to initiate the PDP is properly within the scope of the ICANN policy process and within the scope of the GNSO.
In requesting the staff to prepare an Issues Report, the GNSO Council suggested that two documents that were discussed in the GNSO Council meeting on 25 March 2003 be used in the preparation:
- "WHOIS Issues Paper on Privacy" (11 March 2003) prepared by Marilyn Cade on behalf of the WHOIS Task Force, drawing on the contributions of the Task Force in meetings and previous documents and discussions.
- "Privacy Issues Report: The Creation of a New Task Force Is Necessary for an Adequate Resolution of the Privacy Issues Associated with WHOIS" (10 March 2003) prepared by Electronic Privacy Information Center (EPIC) and Ruchika Agrawal.
In reviewing these documents, as well as other information that has been posted in the community discussion of the relationship between WHOIS (concerned with the display of data about a registrant and associated contacts such as technical, administration and billing) and privacy (concerned with what data is collected from registrant, and how it is used, maintained, and made available to others), several features of the discussion are evident:
- There are many issues involved, not just a single issue.
- There is a stark divergence of views held by different segments of the community about many, if not all, of the issues.
- In many cases, the divergence of views appears to be based on the lack of a common understanding of various facts and circumstances relevant to the issues.
- There also appears to be an imperfect general understanding regarding the requirements concerning WHOIS currently established in (a) ICANN agreements and policies and (b) legal requirements established by laws and other governmental requirements.
- The multiple issues have not been crisply defined, and different segments of the community prefer to define them in different ways. (See point 6 immediately below.)
- Many segments of the community discern linkages between various of the issues, so that their view of what resolutions of one issue are acceptable are dependent on how another issue is resolved. Different segments of the community discern different linkages.
- ICANN entities other than the GNSO have constituents with a stake, and thus an interest, in how the issues are resolved.
These considerations lead the staff to recommend that the appropriate action at this time is to commence a phase of fact-finding and issue-definition work, prior to commencing policy-development processes on the substance of particular issues.
After providing a preliminary catalog of issues, this Issues Report briefly characterizes the interests of various stakeholder groups as they now appear. This report next reviews the activities of other ICANN groups and stakeholders that seem relevant to WHOIS privacy issues. In a final section, it sets forth recommendations for a process to move forward, in coordination with other entities (within ICANN and potentially outside), toward the initial exploration of the menagerie of issues, with the view of better defining them and attaining a working understanding of how the various issues interrelate, so that it is practical to sequence a series of substantive PDPs on them. These staff recommendations take into account some preliminary guidance of the General Counsel concerning the relationship of the issues to ICANN's Mission and Core Values and the GNSO's scope.