June 15, 2001
Dear Committee Members:
On May 17, 2001, ICANN unveiled
a new Registrar Accreditation Agreement to be signed by all accredited
registrars for the .biz and .info gTLDs, and which is available to electing
registrars in the .com, .net, and .org gTLDs. Like the existing Registrar
Accreditation Agreement for current registrars in the .com, .net, and
.org gTLDs (hereinafter, the "Existing Accreditation Agreement"),
this new Accreditation Agreement requires all registrars to make Whois
Data available in bulk to all who request such access and pay a fee. In
stark contrast to the existing Whois Data Bulk Access requirements, however,
the new Accreditation Agreement requires registrars to prohibit many marketing
uses of Whois data.
Verio respectfully requests
that ICANN reconsider the new policy set forth in the recently posted
new Registrar Accreditation Agreement limiting the marketing uses of Whois
data acquired through bulk access. Verio further requests a stay of the
implementation of this new policy in that it will cause irreparable harm
to Verio and to the competitive environment for domain name registrations
and related services.
Verio objects to these new
limitations on the marketing use of Whois data acquired through bulk access
for the following reasons:
For the reasons outlined above,
Verio respectfully requests that ICANN reconsider its new policy. Furthermore,
based on the serious impact that this new policy will have on Verio's
business operations, Verio respectfully requests that ICANN stay the implementation
of this new policy until its full effects can be debated within the Internet
I. ICANN Adopted Its New Policy Limiting Uses of Bulk Access In Breach of its Promise to Adopt Any Such New Policy Only After Following Explicit Consensus-Based Procedures Carefully Designed to Include All Stakeholders in the Decision-Making Process.
On May 17, 2001, ICANN posted the new Accreditation Agreement on its website.1 ICANN made no public announcement that a change had been made. ICANN did not even include the new agreement in its "New and Noteworthy" section on its home page. Verio happened upon the new agreement, which ICANN had buried deep in its web site, only by chance.
The new agreement includes sweeping new limitations on the use of Whois data acquired through bulk access. It provides that "Registrar shall provide third-party bulk access [but that] Registrar's access agreement shall require the third party to agree not to use the data to allow, enable, or otherwise support the transmission by e-mail, telephone, or facsimile of mass, unsolicited, commercial advertising or solicitations to entities other than such third party's own existing customers." New Accreditation Agreement § 3.3.6. (emphasis added).
The Existing Accreditation Agreement provides that "Registrar's access agreement shall require the third party to agree not to use the data to allow, enable, or otherwise support the transmission of mass unsolicited, commercial advertising or solicitations via e-mail (spam)." Existing Accreditation Agreement § II.F.6.c. (emphasis added). The Existing Accreditation Agreement did not prohibit marketing use of Whois data by means of the telephone or facsimile.
The Existing Accreditation Agreement further provides that a registrar's obligations under the bulk access provisions shall remain in effect until the earlier of:
Thus, in the absence of a finding
by the DoC that "no individual or entity is able to exercise market
power with respect to registrations or with respect to registration data
used for development of value-added products and services by third parties,"
ICANN was obligated to follow its consensus-based process set forth in
the Existing Accreditation Agreement in order to adopt any new policy
regarding use of bulk Whois data. See Existing Accreditation Agreement
These consensus-based procedures
are set forth in detail in the Existing Accreditation Agreement: ICANN's
Board of Directors would first need to adopt the proposed new policy.
ICANN would then need to obtain a recommendation that the policy should
be adopted, by at least a two-thirds vote of the council of the ICANN
Supporting Organization to which the matter is delegated. Finally, ICANN
would need to submit a written report and supporting materials documenting
the process. Id.
As far as Verio is aware, none
of these procedures have been followed with respect to the new policy
regarding use of bulk Whois data. Verio has searched ICANN's web site
and found no evidence that such a process took place. Thus, in adopting
the new policy restricting marketing uses of Whois data without resort
to the consensus-based process, ICANN has breached the Existing Accreditation
Agreement and has failed to solicit or consider the views of all Internet
II. ICANN Adopted the New Policy Without any Notice and Comment Period or a Majority Vote by the Board In Violation of ICANN's Bylaws.
In addition to the consensus-based procedures set forth in the Existing Accreditation Agreement, ICANN's Bylaws require a notice and comment period and a majority vote of the Board for decisions that will have such far reaching effects on third parties.2
ICANN's Bylaws provide that
"with respect to any policies that are being considered by the Board
for adoption that substantially affect the operation of the Internet or
third parties, including the imposition of any fees or charges, the Board
ICANN's Bylaws further provide that "[w]ith respect to any matters that would fall within the requirements of Article III, Section 3(b), the Board may act only by a majority vote of all members of the Board." Bylaws Art. IV, § 1(a). Once again, this does not appear to have happened.
On May 7, 2001 at a special meeting of the Board, resolution number 01.62 was adopted providing that:
This Board resolution did not contemplate or approve the adoption of a new Accreditation Agreement that makes such sweeping changes to the bulk access program. Although apparently expecting the new agreement to conform to contractual terminology and circumstances of the new TLD's, the Board explicitly stated its belief that the new Accreditation Agreement would be consistent with the Existing Accreditation Agreement. As set forth above, the new restrictions on marketing use of Whois data set forth in the new Accreditation Agreement are inconsistent with the Existing Accreditation Agreement, and thus appear to be well outside the scope of Resolution 01.62.
In that this new policy limiting the uses of Whois data acquired through bulk access "substantially affects" Verio's operations, ICANN was obligated to comply with the procedural requirements set forth in Article III, Section 3(b) and adopt it by Board resolution in accordance with Article IV, Section 1(a) of its Bylaws. ICANN apparently complied with neither provision.
Verio is aware that the United States Department of Commerce recently approved the new agreements between ICANN and VeriSign for .com, .net and .org domain name registries.4 ICANN and VeriSign subsequently signed the new agreements.5 Verio is also aware that ICANN recently adopted new TLD Unsponsored Registry Agreements for the .info and .biz registries.6
Upon review of the relevant provisions of these agreements, it appears that the provisions requiring the registry to provide free public query access to obtain Whois data were revised to include additional marketing restrictions on use of Whois data that were not present in the previous Registry Agreement between ICANN and VeriSign.7 Section II.11.C of the new .com Registry Agreement contains the following provision:
These new provisions, however, did not address the permissible uses of Whois data acquired through bulk access. Until May 17, 2001 when ICANN posted the new Accreditation Agreement on its web site, ICANN made no mention of adopting a new policy regarding bulk access to Whois data.
III. ICANN Should Have Awaited the Report of the Whois Committee Before Implementing A New Whois Bulk Access Policy.
The issue of public access
to Whois data for marketing purposes is currently being discussed within
the Whois committee of the Domain Name Supporting Organization ("DNSO").
On June 8, 2001, ICANN announced the DNSO's study of the Internet domain-name
system's Whois system.
With that announcement, the
DNSO invited comments by way of a survey. The stated purpose of the survey
Questions 5, 16, and 17 of
the survey specifically address the use of Whois data for marketing purposes.
The comment period is scheduled
to close on July 31, 2001. At the very least, ICANN should have awaited
the results of the DNSO Whois Committee's report before changing the policy
on bulk access to Whois data.
IV. Bulk Whois Data Should Remain Available for Marketing Purposes Except Through Spam Email.
Both the existing and new versions
of the Accreditation Agreement allow registrars to adopt policies that
permit individuals to "opt-out" of the bulk access program.
The agreements provide that:
Registrars have the ability to implement an "opt-out" program to protect those customers that elect not to receive marketing information from third parties. Thus, no threat exists that Verio, or other parties provided with bulk access, would contact anyone that does not wish to be contacted. There is simply no reason to further limit the permissible uses of Whois data acquired through bulk access.
Moreover, despite its well-meaning
intention of protecting the privacy rights of individuals, ICANN's new
policy is needlessly over-inclusive. Individual registrants are a small
minority of the domain name holders in the .com, .net, and .org spaces.
"It is estimated that well over 70% of domain names are registered
by businesses or organizations."9
The opt-out provision sufficiently protects individual registrants without
smothering competition in the marketing of value-added services to businesses.
Verio understands that one
of the reasons that ICANN may have adopted these new restrictions on the
use of Whois dataobtained through bulk access is to protect individuals
from being contacted with marketing solicitations. Verio understands this
concern but feels that the ability to "opt-out" of the bulk
access program effectively addresses these concerns. To the extent that
ICANN feels that the "opt-out" policy does not adequately address
individual privacy concerns, ICANN should limit the new restrictions to
TLD's designed for use by individuals as opposed to TLD's designed for
use by commercial entities and organizations.
The recently approved ".name"
TLD Registry is designed specifically for use by individuals. If ICANN
had limited its new policy restricting the use of Whois data acquired
through bulk access to the ".name" registry, individuals who
sought to avoid any commercial solicitations would have a place to register
a domain name without any concern for their individual privacy. They could
simply register their domain name with the ".name" registry
and feel certain that they would receive no commercial solicitations.
If they, however, decided to register a domain name with another registry,
they could elect to "opt-out" of the bulk access program.
The other registries, like
the .aero, .biz, .com, .coop, .info, .museum, .net, .org, and .pro registries,
were designed for use by commercial entities and organizations or for
unrestricted use. ICANN need not place additional restrictions on the
use of bulk Whois data for domain names in these TLD's.
Without placing any further
restrictions on the use of Whois data acquired through bulk access, ICANN
already has sufficient measures in place to protect the privacy interest
of individual registrants. ICANN should let the ".name" registry
serve its purpose of giving individuals a place to register a domain name
and have their privacy interests protected.
The original bulk access policy
prohibited use of Whois data for spam email because of the threat spam
poses to the operational stability of the Internet. It was thought that
spam email could cause serious system drains. No such concerns exist with
the newly banned marketing uses, which have absolutely no effect on the
operational stability of the Internet.
ICANN simply had no need to
prohibit using Whois data acquired through bulk access to make telephone
sales calls. In the United States, both federal and state laws already
extensively regulate unsolicited telephone sales.10
For example, many states publish statewide "do-not-call lists"
upon which individuals can ask to be listed and which companies must honor.
Many states also have laws dealing with facsimile solicitations. Furthermore,
industry trade groups like the Direct Marketing Association publish "do-not-call
lists" that reputable companies agree to honor.
Prohibiting lawful marketing tools other than spam email is not necessary and would seriously decrease competition in the marketing of domain name renewals and value-added products and services. In the Existing Accreditation Agreement, the DoC and ICANN sought only to prohibit conduct that threatened the operational stability of the Internet and to allow all other lawful conduct. Without any showing that new considerations require prohibiting other lawful marketing tools, the original policy should be followed in the new Accreditation Agreement as well.
This new policy restricting
use of Whois data for marketing purposes does not apply to a registrar
marketing to "its" customers. It applies only to third parties
marketing to these individuals. Thus, this new policy is directly at odds
with a former policy that arose out of a deliberative process, in which
ICANN and the DoC recognized the dangers inherent in giving anyone a monopoly
over the marketing use of Whois data.
At one point during the privatization
of the domain name management system, Network Solutions attempted to impose
a restrictive regime on use of Whois data similar to that which ICANN
has just adopted. ICANN and the DoC, however, rejected NSI's proposal.
The rejection was based on the premise that Whois data is not the property
of registrars but is the property of the individual registrants and the
public at large. Thus, ICANN and the DoC properly concluded that registrars
should not be allowed to profit from Whois data to the exclusion of others.
For example, on July 22, 1999,
Andrew J. Pincus, General Counsel of the Department of Commerce, submitted
a statement for the record before the United States House of Representatives
Commerce Committee's Subcommittee on Oversight and Investigations.11
Mr. Pincus stated:
(emphasis added). Mr. Pincus went on to state that "NSI agreed to provide free bulk access to zone file data until July 23, 1999, under the terms of a Department of Commerce-approved agreement that would prohibit objectionable uses such as spamming but would allow all other lawful uses." (emphasis added).
That free access to Whois data
was a top policy objective cannot be disputed. In a Press Release dated
August 6, 1999, the DoC announced that it had forced NSI to "remove
restrictions on the use of WHOIS data for third-party development of value-added
products and services pending resolution of all outstanding issues"12
On September 28, 1999, Secretary Of Commerce William M. Daley announced the DoC's approval of the agreements on domain name management, including the Accreditation Agreement that ICANN has just revised. In that statement, Secretary Daley specifically mentioned the fight to keep Whois data open to the public. Secretary Daley stated:
(emphasis added). This ample
record demonstrates the significant policy attention given to open use
of Whois data, and the strongpolicy tilt in favor of open access and use
and away from assertions of a proprietary interest in Whois data.
In view of the degree of attention
focused on this issue during the original privatization process, ICANN
should reconsider this newpolicy on the use of Whois data acquired through
bulk access. No convincing rationale exists for upsetting the balance
that was struck only a few short years ago.
As ICANN and the DoC understood
when crafting the bulk access policy contained in the Existing Accreditation
Agreement, keeping Whois data available to all on equal terms for all
lawful purposes, as opposed to providing registrars sole or superior access
to the data, promotes competition in the domain name renewal and value-added
products and services markets.
In contrast, with the new policy,
registrars are granted the exclusive right to market "their"
customers with mass unsolicited commercial advertising or solicitations
by e-mail, telephone, or facsimile. The net effect of providing registrars
such exclusive marketing use of Whois data will be an increase in the
price the consumer ultimately pays for value-added products and services
and domain name renewals. By limiting access to this data, registrars
will effectively prevent third parties from cost-effectively contacting
consumers in the market for Internet services. The only voice offering
these services to the consumers will be their own registrar, who will
have less incentive to compete on price with others offering the same
V. The New Policy Conflicts with Prior Representations of ICANN and Has Serious Implications for the Intellectual Property System.
The new bulk access policy
seriously implicates the freedom to public information embodied in United
States copyright laws. Early in its history, ICANN gave testimony to the
United States Congress that Whois data would be available to all. Now,
ICANN reverses course.
On June 22, 1999, as Chairman of the House Commerce Committee, Representative Tom Bliley wrote ICANN requesting ICANN to state whether it has "conducted, or had conducted on its behalf, a legal analysis of its authority to retain intellectual property rights over registrar data?"13
In its July 8, 1999 response to the House Commerce Committee's questions, ICANN stated:
(emphasis added).14 Thus, in response to a formal request from the House Commerce Committee, ICANN previously took the position that free access to Whois data cannot be denied under United States law.
ICANN previously represented
that the factual information embodied in Whois data could not be bottled
up under copyright or trade secret laws but instead would be freely used
by any party for their own lawful purposes. The new policy effectively
provides registrars with intellectual property rights over Whois data.
Third parties are denied access to the data for most commercial marketing
purposes, while registrars are allowed unfettered use of the data, including
by spam email.
ICANN has reversed course without a sound basis for doing so. There were no new facts, and certainly no new legal principles, that support establishing a quasi-proprietary rights regime over Whois data. ICANN should have adhered to its earlier commitments and maintained Whois data in a competitively open environment.
VI. Verio Respectfully Requests That ICANN Reconsider its New Policy and Stay its Implementation Pending the Completion of the Necessary ICANN Procedures.
ICANN's Bylaws require that ICANN make available a mechanism for review and reconsideration of its actions. The Bylaws provide:
Bylaws, Art. III, Sec. 4(a). Verio has been adversely affected by this action due to Verio's past use of Whois data for lawful marketing purposes and its desire to continue such use. Verio requests that ICANN review it and in the interests of fairness, recommends to ICANN's Board that it retain the old policy embodied in the Existing Accreditation Agreement.
As Verio understands ICANN's Reconsideration Policy, a request for review or reconsideration must be filed within 30 days after (a) the affected party or its affiliate receives notice of the action, or (b) ICANN posts notice of the action on its web site, whichever is sooner. In that ICANN first posted notice of its new policy restricting bulk access to Whois data on May 17, 2001, Verio has made a timely request for reconsideration.
In accordance with the Reconsideration Policy, Verio further requests a temporary stay of the implementation of this new policy limiting the use of bulk Whois data pending completion of the procedures set forth in Article III, Section 3(b) and Article IV, Section 1(a) of ICANN's Bylaws followed by the procedures set forth in Section I.B. of the Existing Accreditation Agreement.
Verio has been adversely affected by ICANN's new policy. With the understanding that bulk access would be an acceptable alternative to query-based access for obtaining Whois data for marketing purposes, Verio has expended considerable time and effort negotiating bulk access agreements with a number of accredited registrars. Verio has further paid tens of thousands of dollars to these registrars to obtain bulk Whois data. Since this new policy can be interpreted as applying to even existing signed agreements, ICANN has, without a word of warning, deprived Verio of the marketing data for which it bargained and paid.
The Reconsideration Committee
indicates that it will endeavor to complete its work and submit its recommendation
to the Board within 30 days of the filing of the request and that its
recommendations will be made public on the ICANN web site. Verio requests
that the Reconsideration Committee complete its work within that proposed
time frame, so that ICANN's Board can make a decision on whether to either
retain the old policy or to comply with the procedures set forth in Article
III, Section 3(b) and Article IV, Section 1(a) of ICANN's Bylaws followed
by the procedures set forth in Section I.B. of the Existing Accreditation
Agreement in adopting a new policy.
Verio respectfully requests
that ICANN reconsider its new policy limiting the uses of Whois data acquired
through bulk access. There is no need for this new policy, and it has
serious anti-competitive effects.
Michael A. Jacobs
cc: Louis Touton, Esq.
1 A copy of the new Accreditation Agreement as posted on May 17, 2001 is available on ICANN's web site. (<http://www.icann.org/registrars/ra-agreement-17may01.htm>)
2 A copy of ICANN's bylaws as amended July 16, 2000 is available on ICANN's web site. (<http://www.icann.org/general/bylaws.htm>).
3 A copy of the May 7, 2001 minutes of the Board is available on ICANN's web site. (<http://www.icann.org/minutes/prelim-report-07may01.htm>).
4 A copy of the May 18, 2001 press release announcing the DoC's approval is available on the DoC's web site. (<http://www2.osec.doc.gov/public.nsf/docs/icann-verisign-0518>).
A copy of this May 25, 2001 press release is available on ICANN's web
A copy of this May 15, 2001 press release is available on ICANN's web
7 Copies of the proposed ".com," ".net," ".org," and the Unsponsored Registry Agreements are available on ICANN's web site. (<http://www.icann.org/nsi/proposed-com-registry-agmt-01mar01.htm>; <http://www.icann.org/nsi/proposed-net-registry-agmt-01mar01.htm>; <http://www.icann.org/nsi/proposed-org-registry-agmt-01mar01.htm>; <http://www.icann.org/tlds/agreements/unsponsored/registry-agmt-11may01.htm>).
8 A copy of the June 8, 2001 announcement of the DNSO survey is available on ICANN's web site. (<http://www.icann.org/dnso/whois-survey-en-08jun01.htm>).
9 See June 8, 2001 announcement of the DNSO survey. (<http://www.icann.org/dnso/whois-survey-en-08jun01.htm>).
10 In addition to numerous state laws regulating telephonic sales, both the Telephone Consumer Protection Act, 47 U.S.C. § 227, which directed the FCC to promulgate regulations governing telephonic sales (47 C.F.R. §§ 64.1200-1201), and the Telemarketing and Consumer Fraud and Abuse Protection Act, 15 U.S.C. §§ 6101-6108, which directed the FTC to promulgate regulations governing telephonic sales (16 C.F.R. §§ 310.1-310.8) regulate telephonic sales.
11 A copy of Mr. Pincus' July 22, 1999 statement is available on the DoC's web site. (<http://www.ogc.doc.gov/ogc/legreg/testimon/106f/pincus0722.htm#N_26_>)
12 A copy of this August 6, 1999 press release is available on the DoC's web site. (<http://www.ntia.doc.gov/ntiahome/press/dns08061999.htm>).
13 A copy of Chairman Bliley's June 22, 1999 Letter is available on ICANN's web site. (<http://www.icann.org/correspondence/bliley-letter-22june99.htm>)
14 A copy of the ICANN's July 8, 1999 response is available on ICANN's web site. (<http://www.icann.org/correspondence/bliley-response-08july99.htm#1C>)