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CIRA Creates Backdoor WHOIS Exceptions for Police and IP Owners

By Michael Geist

Earlier this year, I wrote glowingly about the new CIRA whois policy, which took effect today and which I described as striking the right balance between access and privacy.  The policy was to have provided new privacy protection to individual registrants - hundreds of thousands of Canadians - by removing the public disclosure of their personal contact information (though the information is collected and stored by domain name registrars). 

Apparently I spoke too soon.  Faced with the prospect of a privacy balance, special interests representing law enforcement and trademark holders quietly pressured CIRA to create a backdoor that will enable these two groups (and these two groups alone) to have special access to registrant information.  In the case of law enforcement, police can bring cases to CIRA involving immediate risk to children or the Internet (ie. denial-of-service attacks) and CIRA will hand over registrant information without court oversight.  In the case of trademark holders (as well as copyright and patent owners), claims that a domain name infringes their rights will be enough to allow CIRA to again disclose registrant information.

This represents a stunning about-face after years of public consultation on the whois policy.  
While the law enforcement exception appears to be narrowly tailored, the exception for trademark, copyright, and patent interests undermines a crucial part of the whois policy, namely compliance with Canadian privacy law (the policy now arguably violates the law) and the appropriate balance between privacy and access.  For example, consider a Canadian that registers companysucks.ca (name your company) as a whistleblower site about a particular company.  They understandably wish to remain anonymous to the general public since disclosure of their personal information could lead to negative repercussions.  Under the new CIRA policy, if they use fake registrant information, they risk losing the domain.  On the other hand, the backdoor exception means that the trademark holder can easily smoke out the identity of the registrant as CIRA will simply hand over this information.

Just over six weeks ago, CIRA celebrated its one millionth domain name registration and claimed world class status.  Today, the organization has betrayed the very principles of consultation upon which it was built and sent a discouraging message that special interests matter more its own members.

Full post as published by Michael Geist on June 10, 2008 (boomark / email).