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ABSTRACT
The Internet's Whois service allows anyone to type a domain name into a Web interface and then receive the name and contact details of whoever has registered it. Internet Corporation for Assigned Names and Numbers (ICANN) contracts make it mandatory to provide indiscriminate public access to this information. Data protection laws in Europe and other countries conflict with this ICANN policy, yet Whois has remained in place for a decade. This article offers an explanation for this puzzling contradiction. We use the concept of a default value to explain how the development of a technological system can change the institutional conditions under which rights claims can be realized. We also note that the Whois story poses problems for Daniel Drezner's theory of global governance. Despite disagreement between the two great powers, the ICANN regime provides effective global governance; Drezner's theory cannot explain how the rise of a technical system could produce a global shift in privacy policy and alter the bargaining power of Great Powers.
Notes
1. International Working Group on Data Protection in Telecommunications, Common Position on Privacy and Data Protection aspects of the Registration of Domain Names on the Internet adopted at the 27th meeting of the Working Group on 4–5 May 2000 in Rethymnon, Crete. http://www.datenschutz-berlin.de/doc/int/iwgdpt/dns_en.htm
2. The American Heritage Dictionary of the English Language: Fourth Edition. 2000. “Default” entry: Noun, 4a. http://www.bartleby.com/61/97/D0089700.html.
3. The authors are grateful to Hans Peter Schmitz for pointing out the resonance of this case with studies of path dependency, along with references on historical and political institutionalism literature.
4. In this way we also feel that we answer the critique whereby scholars working within the historical institutionalism framework tend “to investigate only the persistence of the victorious policy option instead of bringing out the complexity and uncertainty that characterize formative moments in the creation of policies” (CitationPeters, Pierre, & King, 2005, p. 1277).
5. Increasing returns define “the tendency for that which is ahead to get farther ahead, for that which loses advantage to lose further advantage. They are mechanisms of positive feedback that operate—within markets, business, and industries—to reinforce that which gains success or aggravate that which suffers loss” (CitationArthur, 1996, p. 100).
6. As an example of the kind of switching costs that will become evident as we move into the empirical exposition, in a politically contentious environment there is a huge transaction cost difference between renewing an established contract and renegotiating a totally new and different one.
7. Defense Data Network.
8. In 1981, there were only 200 computers connected to the Internet; by 1985, that had grown to about 2,000. Internet Systems Consortium Domain Survey, http://www.isc.org/index.pl?/ops/ds/host-count-history.php
9. “DCA requests that each individual with a directory on an ARPANET or MILNET host, who is capable of passing traffic across the DoD Internet, be registered in the NIC Whois Database. MILNET TAC users must be registered in the database” (RFC 954, 1985, p. 1).
10. Supra, note 8.
11. See the work of Matthew Zook at http://www.zooknic.com for an example of creative use of zone file and Whois information in social science research.
12. ICANN's Amicus Curiae Memorandum, Register.com, Inc. v. Verio Inc. (22 September 2000, p. 3). As a result of these discussions, public access to the .com, .net, and .org zone files becomes subject to use restrictions set forth in a Zone File Access Agreement.
13. Letter from Louis Touton to the Committee Requesting Advice on Implementation(1 December 2000, ¶ 5), http://www.icann.org/committees/whois/touton-letter-01dec00.htm
14. Registrar Accreditation Agreement (RAA) November 1999. http://www.icann.org/nsi/icann-raa-04nov99.htm
15. At its expense, Registrar shall provide an interactive Web page and a port 43 Whois service providing free public query-based access to up-to-date (i.e. updated at least daily) data concerning all active SLD [second-level domain] registrations sponsored by Registrar in the registry for the .com, .net, and .org TLDs. The data accessible shall consist of elements that are designated from time to time according to an ICANN-adopted policy. (RAA, 1999, Section F).
16. RAA, 1999 November, Section F, ¶ 5.
17. E.g., paragraphs 7.b, 7.e, and 7.f, plus the section R.
18. The basic technology of providing such an interface is not all that different from Whois, although uniformity across ISPs would require some standardization of data formats. But of course, that is no different from the standardization ICANN imposed on domain name registrars.
19. For example, in a 2004 U.S. Supreme Court case, U.S. telecommunication company Verizon actively fought attempts by the Recording Industry Association of America to gain access to its customer's names. See “Supreme Court Internet Privacy Decision,” Washingtonpost.com. (2004, October 14). Available at http://www.washingtonpost.com/wp-dyn/articles/A29974-2004Oct13.html.
20. See the advisory opinion of the intellectual property industry to U.S. authorities: The US-Singapore Free Trade Agreement (FTA): The Intellectual Property Provisions. Report of the Industry Functional Advisory Committee on Intellectual Property Rights for Trade Policy Matters (IFAC-3). 2003 February 28, p. 7. http://www.ustr.gov/assets/Trade_Agreements/Bilateral/Singapore_FTA/Reports/asset_upload_file273_3234.pdf. See also CitationRoffe (2004, pp. 35–37) for an analysis of the Chile-USA Agreement.
21. The US-Peru Trade Promotion Agreement (TPA): The intellectual property provisions. Report of the U.S. government's Industry Trade Advisory Committee on Intellectual Property Rights (ITAC-15). 2006, February 1, ¶ 41. http://www.bilaterals.org/article.php3?id_article=4222.
22. Central American Free Trade Agreement, CAFTA-DR Final Text, Article 15.4.2. http://www.ustr.gov/Trade_Agreements/Regional/CAFTA/CAFTA-DR_Final_Texts/Section_Index.html.
23. Records of ICANN's .com/.net/.org Whois Committee of December 2000 are still posted at http://www.icann.org/committees/whois/ as of March 2008. Typically for ICANN at that time, the Committee included only representatives of commercial registration interests and intellectual property holders, and no civil society representatives or privacy advocates.
24. From the policy report “Accuracy and Bulk Access.” Terms of Reference, ¶ 1. (30 November 2002) http://www.dnso.org/dnso/notes/20021130.NCWhoisTF-accuracy-and-bulkaccess.html.
25. Evidence of WDPRS implementation is provided by one of the yearly reports on the 2006 “Community Experiences with the InterNIC Whois Data Problem Reports System” (March 31, 2006): http://www.icann.org/announcements/wdprs-report-final-31mar06.pdf. Related to the same effort to improve accuracy, ICANN also releases a yearly report on the implementation of the Whois Data Reminder Policy (WDRP); http://www.icann.org/whois/wdrp-report-30nov06.pdf.
26. Letter of Smith and Berman, respectively (new) chairman and ranking member of the Subcommittee on courts, the Internet and intellectual property, addressed to Commerce Department in August 2003, and reproduced in the report of the September hearing.
27. Revised VeriSign .net and .org registry agreement: Appendix W. Additional Covenants of Registry Operator. Section 2, ¶ 2. Posted April 16, 2001. http://www.icann.org/tlds/agreements/verisign/registry-agmt-appw-net-org-16apr01.htm.
28. Letter from Hansjürgen Garstka to Stuart Lynn Regarding Whois Issues. (2003 January15). http://www.icann.org/correspondence/garstka-to-lynn-15jan03.htm.
29. Port 43. In programming, a port is a “logical connection place,” and in the Internet's protocol, refers to the way a client program specifies a particular server program on a computer in a network.
30. Privacy Issues Report. Prepared by Electronic Privacy Information Center on behalf of Noncommercial Users Constituency. (March 10, 2003) http://epic.org/privacy/whois/privacy_issues_report.pdf
31. Noncommercial Users Constituency of ICANN. (2005). International Data Protection Laws: Comments to ICANN from Commissioners and Organizations Regarding WHOIS and the Protection of Privacy. http://www.ncdnhc.org/policydocuments/whois-ncuc-backgrounder.pdf.
32. See GNSO Council minutes, 12 April 2006, Item 2. http://gnso.icann.org/meetings/minutes-gnso-12apr06.shtml. If, as the identification party preferred, the purpose of the Whois was to provide information to resolve “any issues related to the registration or use of a domain name,” then current practices would be supported. If, on the other hand, the purpose of Whois was to “resolve, issues related to the configuration of the records associated with the domain name within a DNS nameserver,” as the domain name industry and privacy party preferred, then restrictions on the data collected and restrictions on access to the data would be obligatory.
33. Note by Ashley Cross, Australia's GAC representative, sent to Bruce Tonkin as chair of the GNSO Council following the vote, and forwarded to the Council list on 13 April 2006.
34. See the correspondence to ICANN archived at its Web site: http://www.icann.org/correspondence/
35. Joint Project Agreement between the U.S. Department of Commerce and the Internet Corporation for Assigned Names and Numbers. Annex A, ¶ 5. (September 29, 2006) http://www.ntia.doc.gov/ntiahome/domainname/agreements/jpa/signedmou290906.pdf.
36. CIPPIC to ICANN. (2006, June 22, ¶ 7). ICANN correspondence page. http://icann.org/correspondence/lawson-to-cerf-22jun06.pdf.
37. Privacy Commissioner of Canada to ICANN, 12 July 2006, ICANN correspondence page.
38. Letter of March 12, 2007 (p. 4) in reaction to the ‘Draft Procedure on Potential Conflicts with Whois Requirements and National Laws’ and ‘Preliminary Task Force Report on Whois Services.’ http://icann.org/correspondence
39. Governmental Advisory Committee, GAC Policy Principles Regarding the Whois Service, 28 March, 2007. Retrieved May 13, 2008, from http://gac.icann.org/web/home/WHOIS_principles.pdf.
40. The GNSO voted on October 31, 2007 to “Formally en[d] the Policy Development Process on gTLD Whois without making any recommendations for specific policy changes to ICANN's Board of Directors.” http://gnso.icann.org/resolutions/
41. For a good summary of the debate among legal scholars about Easterbrook's article, see CitationMurray (2007).
42. States or other actors would be willing to defect from the globally compatible DNS only if they were very confident that, in the ensuing network rivalry, the rest of the world would quickly converge on their standard rather than the incumbent one.