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April 30, 2005

Wal-Mart on the Domain Name War Path

Wal-Mart on the Domain Name War Path: "Wal-Mart seems to have been particularly vigilant lately about protecting itself from third parties setting up websites critiquing Wal-Mart and its practices. ...Wal-Mart recently scored a victory in an arbitration proceeding under the Uniform Domain Name Dispute Resolution Policy ('UDRP') before the World Intellectual Property Organization ('WIPO') against Jeff Milchen, a self-proclaimed critic of Wal-Mart from Bozeman, Montana who registered the domain..."

(Via CircleID.)

April 29, 2005

What They Won't Tell You - Karl Auerbach

What They Won't Tell You: "

I see that ICANN is advertising for applications to its nominating committee.

Isn't it interesting how ICANN changes its description of itself over the years? ICANN's self description is becoming even more vague about the specific nature of its job, and the words 'technology' and 'technical' in reference to 'ensuring stability' are becoming increasingly rare.

ICANN has become a place where directors and officers seem to abandon their talent for independent thought and decision and become just part of a herd of rubber stamps ready to moo quietly and then approve whatever ICANN's staff puts before them. For a body that is pulling several hundred million dollars per year out of the pockets of internet users, this kind of amateur behavior is, to put it mildly, extremely disappointing.

I will repeat my advice from two years ago:

Any person who is considering becoming a Director of ICANN (or any other corporate entity) ought to consult with his or her own personal legal counsel.

(Although I am a licensed California attorney, the above is not intended to be, nor is it, legal advice; you should consult with your own personal legal counsel on these matters.)

"

(Via CaveBear Blog.)

April 28, 2005

Help Break the IP Stupidity Pact (Donna Wentworth)

Help Break the IP Stupidity Pact (Donna Wentworth): "

Not long after James Boyle penned his excellent Financial Times column bemoaning the 'evidence-free' way legislators craft intellectual property law and policy, Senator Rick Santorum gave us a prime example. Specifically, the Senator introduced a bill to stop the publicly funded National Weather Service (NWS) from publishing user-friendly weather data on the Internet. Why? Because he believes that private companies like AccuWeather would make even more money if they didn't have to compete with 'free.'

As Boyle pointed out in an earlier FT column, AccuWeather likely wouldn't exist at all if it weren't for the US policy of making taxpayer-funded raw weather data freely available at the cost of reproduction. In other words, the private weather industry is already benefiting -- richly -- from our tax dollars. Senator Santorum is proposing that we pay twice for our weather information in order to further line the pockets of private companies.

In my previous post on the subject, I suggested that very few people would challenge the Senator on his assumption that the weather industry can't compete with free -- even though it already is. Here's your opportunity. EFF has just posted an action alert on the Santorum bill with a model letter so you can tell your representative you oppose it. Check it out, add your own thoughts, and send a letter today. And don't forget to pass the word along -- we need each and every voice of reason out there to chime in on this one.

"

(Via Copyfight.)

April 22, 2005

James Boyle on Copyright Stupidity (Donna Wentworth)

James Boyle on Copyright Stupidity (Donna Wentworth): "

James Boyle has just delivered the pièce de résistance in his three-part series on copyright for the Financial Times: Deconstructing Stupidity. The stupidity in question is the way that governments typically make intellectual property law and policy -- that is, without evidence that it will produce the desired social or economic benefit.

'If the stakes were trivial, no one would care,' observes Boyle. 'But intellectual property (IP) is important. These are the ground rules of the information society. Mistakes hurt us. They have costs to free speech, competition, innovation, and science.'

Why, then, do we make these mistakes? According to Boyle, it's not only 'corporate capture' that makes governments stupid about copyright. They also suffer from any number of delusions, making them susceptible to 'anecdote and scaremongering.'


The film and music industries are tiny compared the consumer electronics industry. Yet copyright law dances to the tune played by the former, not the latter. Open source software is big business. But the international IP bureaucracies seem to view it as godless communism.

If money talks, why can decision-makers only hear one side of the conversation? Corporate capture can only be part of the explanation. Something more is needed. We need to deconstruct the culture of IP stupidity, to understand it so we can change it. But this is a rich and complex stupidity, like a fine Margaux. I can only review a few flavours.


The three flavors in this particular tasting: 'maximalism,' 'authorial romance,' and the legacy effects of 'industry contract.'

As Boyle writes, IP delusions are not merely stupidity. They constitute 'an ideology, a worldview, like flat earth-ism. But the world is not flat and the stupidity pact is not what we want to sign.'

Absolutely not. But delusions are by their nature difficult to shake.

In part two of the series, Boyle pointed out that in the US, we make weather data available at cost -- yet we have a thriving private weather industry. Now, Siva Vaidhyanathan brings news that Senator Rick Santorum (R-PA) wants to prevent the National Weather Service from giving away weather information because it competes with the Weather Channel.

'It is not an easy prospect for a business to attract advertisers, subscribers or investors when the government is providing similar products and services for free,' says Santorum in a Palm Beach Post article. How many people will challenge the Senator on his assumption that the weather industry can't compete with free? I'll wager not many -- despite the fact that it already is.

"

(Via Copyfight.)

April 21, 2005

Ninth Circuit Disagrees With Fourth Circuit's PETA.org decision

ACPA Applies to Noncommercial Use of Domain Name

....Finally, Bosley argued that the conduct was actionable because Kremer used the domain name in connection with Bosley's goods and services. The Ninth Circuit disagreed with this rationale, found in the Fourth Circuit's decision People for the Ethical Treatment of Animals v. Doughney, 263 F.3d 359 (4th Cir. 2001), because it would encompass a mark merely used as the object of criticism. In Kremer's case, no consumer would mistakenly try to buy goods or services from Kremer based on the use of Bosley's mark and Bosley was doing nothing to trade on Bosley's goodwill.

more here

April 20, 2005

Nissan's Appeal Over Website Rejected

Nissan's Appeal Over Website Rejected: "   A refreshing ruling in the right to hold domain names whose content will not confuse the consumer as to the source of a product or service. Also a win against those who try to use the anti cybersquatting consumer protection act as a club wielded by bullies to take names that were registered first by others for their non infringing uses. The U.S. Supreme Court on Monday turned away an appeal by Japanese automaker Nissan Motor Co. in its fight to block a North Carolina man from using his Nissan.net and Nissan.com websites to sell ads and make disparaging comments. Nissan Motor, which has trademarked its name, says Uzi Nissan is diverting consumers looking for the automaker's website. The justices made no comment in rejecting the appeal, included on a list of orders released in Washington. The case now returns to U.S. District Court in Los Angeles, where the two sides are still battling over additional issues. Nissan North America, the automaker's U.S. unit, is headquartered in Gardena. Uzi Nissan, who has used his last name in connection with various businesses since the 1980s, registered the Internet domain names in 1994 and 1996 to advertise a computer sales and service business, Nissan Computer Corp. More here

April 19, 2005

ICANN , .travel, and process - From Wendy Seltzer

ICANN , .travel, and process: "

It's easy to see why those re-reporting Ed Hasbrouck's complaints about the ICANN's approval of a .travel domain focused on conspiracy allegations -- that's far sexier than the intricacies of ICANN process -- but it's not the heart of Ed's concern. As he writes today at The Practical Nomad blog, who's got .travel is 'really the fifth and least important level of my criticisms of ICANN's actions.' More important is how ICANN got to the point of making the award for the new sponsored Top-Level Domain (sTLD), and whether it followed properly open procedures in getting there.

Hasbrouck doesn't think so, and he wants to use the independent review process in ICANN's bylaws to examine that decision, saying

violation of ICANN's bylaw requiring that 'ICANN and its constituent bodies shall operate to the maximum extent feasible in an open and transparent manner', is the sole basis of my request for independent review of the '.travel' decision-making process.

Agree or disagree with Hasbrouck's fifth-level suspcions about the .travel award, we should all press ICANN to open its process and submit to the bylaws-mandated review so we can see for ourselves how the organization reached its decision.

"

(Via Wendy: The Blog.)

April 16, 2005

ChoicePoint Wins Menace Award

Privacy, what's that? Nice to see that some people are waking up and complaining about misuse of personal information.

ChoicePoint Wins Menace Award: "The data broker takes top honors at this year's U.S. Big Brother Awards, which spotlight invasive privacy practices in business and government. Other winners include a California elementary school and the Department of Education. By Joanna Glasner."

(Via Wired News.)

April 10, 2005

from the continuing-disappointment-that-is-the-NYTIMES department

from the continuing-disappointment-that-is-the-NYTIMES department: "

So there's a view about the file-sharing debate held by most people who don't know anything about the debate. It is a view the recording industry likes most people to hold. It is a view far from anything anyone interesting is saying.

The view - call it the uninformed stereotype (US) view - goes something like this: that there are just two sides to this debate, those who favor 'piracy' and those who don't. Supporters of Grokster are people who favor piracy, and who are against artists.

On Thursday, at the NYPL, I had the extraordinarily pleasure of being on stage with Jeff Tweedy and Steven Johnson, for a discussion titled 'Who Owns Culture?' The evening started with 15 minutes of me and my 'powerpoint' (actually, Keynote), and then a 50 minute discussion with Tweedy and me, moderated by Johnson. There was then time for questions from the audience.

It was an extraordinary evening. I had the chance before to talk to Tweedy, so I wasn't surprised. But he was extraordinary — funny, subtle, smart about the issues, and deeply passionate. Suffice it that neither he nor I (as is obvious to anyone on this page) subscribe to, or fit, within the US view. I explicitly denounced 'piracy'; Tweedy -- in context -- said nothing to support the view that people should infringe the rights of other artists.

David Carr of the New York Times was at the event. He wrote a review. Everyone I've spoken to loved the piece. I think they loved it because it was a piece printed in the Times, and we're a culture that loves attention more than accuracy.

The review is filled with quotes from Tweedy, taken out of context, to support the US view. Nothing in the article suggests anything was said at all contrary to the US view. One reading the piece would think, there they go again, those supporters of theft, and haters of artists.

I'm not sure why there needs to be a NYTimes, if its role is simply to reinforce what people already think, especially with pieces like this. God forbid the Nation's paper of record should reflect something more subtle or complex than the crudest view of an important debate.

"

(Via Lessig Blog.)

WIPO Politics, Quantified (Donna Wentworth)

WIPO Politics, Quantified (Donna Wentworth): "

Earlier this week, David Bollier wrote about how the US and other wealthy nations are pushing developing countries to adopt ever-ratcheting intellectual property protection as an end in itself even as they consider for themselves the smarter approach -- judging a specific IP protection by its performance.

As CPTech's Jamie Love observes in The Financial Times, 'Regardless of what is said in Delhi, back home wealthy countries are backing open standards for the Internet, open-source software, open-access archives for publicly funded scientific research, public domain databases like the Human Genome Project or the HapMap Project and similar open initiatives.' Why? Because there are considerable social and economic benefits to doing so.

Now, in anticipation of next week's historic WIPO Development Agenda meetings (April 11-13), a number of public-interest groups are working together to ensure that all of the delegates have the tools to argue for IP law and policy that accords with their own national best interests. As my EFF colleague Cory Doctorow points out over BoingBoing, this includes a clear-eyed look at what wealthy nations are saying in Geneva while reserving for themselves the luxury of exploring more intelligent approaches at home.

Love has stepped up to bat, providing (1) links to various countries' proposals for interpreting the Development Agenda and (2) a telling 'scorecard' of key words in the proposals, providing an at-a-glance analysis of substantive slant.

Compare and contrast the scorecard for the US and the 'Friends of Development,' which includes Argentina, Bolivia, Brazil, Cuba, the Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania, and Venezuela:


USA [Proposal]
All words: 3,059
Abuse: 0
Access: 3
Access to knowledge: 0
Anticompetitive: 0
Consumer: 0
Doha Declaration on the TRIPS: 0
Education: 6
Exceptions: 0
Human Rights: 0
Limitations: 0
Market failure: 0
Monopoly: 0
Open source: 0
Poverty: 0
Public Health: 0

Friends of Development (14 countries) [Proposal]
All words: 12,040
Abuse: 6
Access: 3
Access to knowledge: 7
Anticompetitive: 4
Consumer: 9
Doha Declaration on the TRIPS: 3
Education: 3
Exceptions: 3
Human Rights: 2
Limitations: 4
Market failure: 0
Monopoly: 6
Open source: 1
Poverty: 1
Public Health: 5


Here we can see even more clearly the farce the WIPO Secretariat is carrying out by barring participation in these meetings by groups that are among the best-qualified to be there. Groups that were founded to address the issues the US isn't addressing.

Bonus headline for the 'big media' journalists who ought to be covering this story: 'IP Justice Barred From Meetings to Address IP Justice.' It would be funny if it weren't true.

Two more of my EFF colleagues, Gwen Hinze and Ren Bucholz, will be blogging these meetings next week over at Deep Links, and I'll be alerting you to new posts here at Copyfight. Stay tuned.

"

(Via Copyfight.)

ICANN's Directors Once Again Shirk Their Responsbilities

ICANN's Directors Once Again Shirk Their Responsbilities: "

I see that ICANN's Board approved several resolutions concerning IP address allocations.

Among these resolutions was one in which ICANN's Board unanimously adopted an 'IPv4 Global Allocation Policy'.

IP address allocation policy is the most crucial matter ever to come before ICANN's board. IP addresses are the fuel on which the internet runs. Without an IP address a person or computer is simply not part of the internet. A policy that says who can get addresses and under what terms has a breathtaking impact on the shape of future internet growth. Such a policy will have a significant impact on what enterprises survive and what enterprises fail. The economic and social ramifications of IP address policy vastly overshadow the effects of ICANN's domain name policies.

Any policy regarding IP address allocation, therefore, ought to be made only with the greatest degree of lucidity and with the greatest attention to its technical, economic, and social effects.

Unfortunately, once again, ICANN fiddled and danced - and made jokes - and avoided the difficult, but necessary, work of actually engaging with the issues of this extremely important matter.

The resolution adopting this policy asserts the following 'facts':

'the Board has considered the public comments that were submitted to the forum'

[the Board] 'determined that existing procedures adequately address the issues that were raised

[N]o objection was raised by the Security and Stability Advisory Committee or other ICANN advisory bodies

There were four comments made on this policy during its comment period. All of these comments cited substantial concrete concerns about fundamental aspects of the policy.

ICANN has never responded to any of these comments. There is no reason to believe that ICANN's Board or any board member is even aware of those comments.

I challenge ICANN to demonstrate that any board member ever read these comments, much less considered them when making his or her decision on the IPv4 address policy.

As for the board's assertion that 'existing procedures adequately address the issues that were raised'. Hogwash. There is no indication that the board or any of its members actually reached this conclusion except by being led to it by the nose by 'staff'. And the assertion is also factually incorrect. Not one of the concerns raised is covered by any existing procedures.

And finally - as for objections by the so-called 'Security and Stability Advisory Committee': Because that committee operates in total secrecy how can anyone tell what that committee says or does?

Once more we have the members of ICANN's board acting as nothing more than mindless monkeys who respond with affirmative noises to whatever is put in front of them.

There is no indication that any ICANN Board member actually performed his or her duty to make an independent and informed judgment on what is, in truth the most critical, and in fact the only truly technical, matter ever to come before ICANN: IP address allocation policy.

ICANN has many flaws, but perhaps its greatest flaw is that the members of its Board of Directors again and again and again insult the internet community and violate their duties by refusing to take the time to try to comprehend and understand the issues put before them and refusing to make their own independent decisions.

ICANN's Board, both as a body and as individuals, has demonstrated once again that even when compared to the extremely lax standards of the past board's of Enron, Tyco, and MCI/Worldcom, ICANN's board and its members comes out gravely wanting.

ICANN's directors should be ashamed of themselves. Not even one director has indicated that he or she is treating his or her role with the kind of attention and respect that the community of internet users deserves and which the law requires.

"

(Via CaveBear Blog.)

April 08, 2005

Bollier on US Hypocrisy Regarding IP Policy for Developing Countries (Donna Wentworth)

Bollier on US Hypocrisy Regarding IP Policy for Developing Countries (Donna Wentworth): "

Public Knowledge co-founder David Bollier has a must-read piece on the current machinations at WIPO and the 'irony -- if not hypocrisy -- that there is growing debate within the United States and Europe about the actual value of strict IP rules even as they press poor countries to adopt the West's legal regime':


While the US and Europe mull such changes, they are pressuring India to adopt a strong patent law that sanctions only closed and proprietary models for controlling access to knowledge.

Why such intransigence in the West about relaxing IP rules in order to help the poorest, most needy nations develop? Perhaps because in this time of American triumphalism, the West thinks it can prevail through sheer force. This is apparently the plan at WIPO, which has refused even to allow an open debate on the issue.

"

(Via Copyfight.)

April 07, 2005

Blog Without Getting Burned

Blog Without Getting Burned: "

EFF Releases How-To Guide for People Who Want to Blog Safely and Anonymously

San Francisco, CA - With the privacy of bloggers and their news sources coming under fire in the court system, it's crucial that web writers know how to express themselves without risking their jobs or social lives. Yesterday the Electronic Frontier Foundation (EFF) released 'How to Blog Safely (About Work or Anything Else),' a how-to guide for bloggers worried about protecting their privacy and free speech.

The guide covers basic measures people can take to keep their blogs anonymous and explores what the law says about discussing work-related issues online. Some advice is common sense; for example, don't post a picture of yourself if you want to stay anonymous. But for bloggers who want strong guarantees of privacy, EFF suggests using technologies like Tor or Anonymizer to prevent your blog-hosting company from logging your computer's unique Internet Protocol (IP) address. Bloggers who fear they could be fired for blogging are also given an introduction to laws that prevent an employer from punishing them for speaking out online.

'There is a lot of misinformation out there about the ways people could get into trouble for blogging,' said EFF Policy Analyst Annalee Newitz. 'We hope advice about online anonymity and the law will help more people engage in free expression without living in fear of reprisals, legal or otherwise.'

Contacts:

Annalee Newitz
Policy Analyst
Electronic Frontier Foundation
annalee@eff.org

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

"

(Via EFF: Press.)

What the Entertainment Industry Really Wants to Do to the Internet (Donna Wentworth)

What the Entertainment Industry Really Wants to Do to the Internet (Donna Wentworth): "

CoCo blog has what European Digital Rights says is the wish list by the European international versions of the MPAA and RIAA (the MPA and IFPI) for Internet service providers: Movie & Music Industry Proposals ISP Self-Regulation. Evidently, they want ISPs to:


  • 'remove references and links to sites or services that do not respect the copyrights of rights holders'
  • 'require subscribers to consent in advance to the disclosure of their identity in response to a reasonable complaint of intellectual property infringement by an established right holder defence organisation or by right holder(s) whose intellectual property is being infringed'
  • terminate contracts of recidivist
  • implement instant messaging to communicate with infringers
  • implement filtering technologies to block sites that are 'substantially dedicated to illegal file sharing or download services'
  • voluntarily store data for copyright enforcement

Did I say 'wish list'? Sorry; that would be 'hit list.'

"

(Via Copyfight.)

Internet Governance Project Proposes ICANN Reforms

Internet Governance Project Proposes ICANN Reforms: "An academic group studying Internet governance has released a report calling for structural changes in the Internet Corporation for Assigned Names and Numbers (ICANN). The paper calls for clear limitations on ICANN's role, putting ICANN under the purview of an international body instead of the U.S. government, and restoring elections for seats on ICANN's board. CDT believes continued reform of ICANN is necessary, but remains seriously concerned about greater intergovernmental or UN control of Internet naming and numbering."

(Via Center for Democracy and Technology.)

April 06, 2005

WIPO Spins Lockout of Civil Society Groups (Donna Wentworth)

WIPO Spins Lockout of Civil Society Groups (Donna Wentworth): "

In advance of the controversial WIPO Development Agenda meetings next week, David Tannenbaum provides excellent preemptive spin-control on WIPO's preemptive spin (hyperlink, mine):


This media advisory suggests that the General Assembly language binds the secretariat to close out civil society NGOs, but the restrictive gloss on this language is a creation of the secretariat alone.

Previous relevant Copyfight coverage here and here.

Update: More preemptive spin control reported @ IP Watch: The Friends of Development detail their proposals for WIPO reform and rebut US representatives' counter-proposal aimed at minimizing/containing the Development Agenda: '[The] Friends of Development emphasized their view that 'the development dimension of intellectual property is not the same thing as technical assistance.' They affirmed that they attach importance 'to the role of intellectual property in the path towards development' and stressed their belief that 'WIPO could have a new role…if it incorporates the development dimension into its work.''

"

(Via Copyfight.)

April 05, 2005

ICANN ".travel" Scandal (Ernest Miller)

ICANN ".travel" Scandal (Ernest Miller): "

Many have forgotten about the procedural and regulatory abomination that is ICANN. But the folks at ICANN Watch have not, and they report yet another scandal regarding domain names. In this case, the bogus procedures that have allowed the international airline cartel (IATA) to take over the '.travel' domain by proxy (ICANN reveals '.travel' sponsor is a front).

Read the whole thing and wonder why ICANN is still in charge of the domain name system.

"

(Via Copyfight.)

Relocate the Delocator (Donna Wentworth)

Relocate the Delocator (Donna Wentworth): "

If you can't beat the lawyers, route around them (or something like that): Cory and Carrie demonstrate how you can stop Starbucks from pushing the Starbucks Delocator out of Google's neighborhood.

"

(Via Copyfight.)

I'm Not Only a Member of the Hair Club for Men, I'm Also... (Donna Wentworth)

I'm Not Only a Member of the Hair Club for Men, I'm Also... (Donna Wentworth): "

...entitled to fair use under the Lanham Act. hair.jpg

Big news from yesterday: the Ninth Circuit ruling (PDF) that a hair 'restoration' company can't use trademark law to strip a domain name from an unhappy customer who set up a website to criticize the company. The Court had not a little bit of fun with language in the opinion:


Defendant Michael Kremer was dissatisfied with the hair restoration services provided to him by the Bosley Medical 3978 BOSLEY MEDICAL INSTITUTE v. KREMER Institute, Inc. In a bald-faced effort to get even, Kremer started a website at www.BosleyMedical.com, which, to put it mildly, was uncomplimentary of the Bosley Medical Institute. The problem is that 'Bosley Medical' is the registered trademark of the Bosley Medical Institute, Inc., which brought suit against Kremer for trademark infringement and like claims. Kremer argues that noncommercial use of the mark is not actionable as infringement under the Lanham Act. Bosley responds that Kremer is splitting hairs.

Like the district court, we agree with Kremer. We hold today that the noncommercial use of a trademark as the domain name of a website — the subject of which is consumer commentary about the products and services represented by the mark — does not constitute infringement under the Lanham Act.

"

(Via Copyfight.)

April 04, 2005

ICANN Versus the College of Cardinals - Which Is More Opaque and Closed?

ICANN Versus the College of Cardinals - Which Is More Opaque and Closed?: "

A few years ago I suggested that we know more about how the college of cardinals selects a new pope than we know about how ICANN makes its decisions. (My suggestion was picked up and repeated by Representative Edward Markey of Massachusetts.)

It is sad when anyone passes. And the loss of a major world figure, particularly one with a strong sense of ethics and morality (even if we individually may differ on certain specific issues) is not a matter to be taken lightly.

Nevertheless, such things do happen. We now have an opportunity to put my claim to the test.

ICANN is meeting in Argentina this week. If anything ICANN has become even more opaque and closed than it was back in year 2000 when I first made the comparison between the selection of a new pope and ICANN's opaque and closed processes.

Perhaps ICANN can demonstrate that it can leap over the exceedingly low hurdle of being more open and transparent than the college of cardinals.

But the outlook is poor.

There is already reason to believe that ICANN won't be successful in that effort. Already it has been reported that a major amount of time was spent, or rather wasted, trying to seal a meeting that is supposed to be open to public inspection, if not to public participation.

The internet is not governed by a Pope and ICANN is not a College of Cardinals. We the community of internet users deserve better than the secrecy and unaccountability that ICANN has been feeding us ever since it was formed.

"

(Via CaveBear Blog.)

April 01, 2005

NTIA, .us, Whois, and the Privacy Act of 1974

As usual, DNRC Director, Karl Auerbach is right on the money. Anyone want to fund a lawsuit?

NTIA, .us, Whois, and the Privacy Act of 1974: "

An agency of the US Department of Commerce, the NTIA, has decreed that domain name registration information ('whois') for the .us top level domain must be made available to all comers, for any reason, at any time.

The Privacy Act of 1974 defines the obligations and duties of Federal agencies that control databases containing personally identifiable information. That act may be found at 5 USC 552a (be careful about that trailing 'a' else you end up with a related, but entirely different chunk of law, the Freedom of Information Act.)

The act covers systems of records - which section (a)(5) the act defines as:

a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual

For purposes of the .us whois database perhaps the most important words in the above definition are 'under the control'.

Back in 1997 I raised the issue whether the National Science Foundation was under Privacy Act obligations with respect to the whois of that era. After much heming and hawing (and a failure to meet statutory deadlines) the NSF excused itself by claiming that the whois database of that pre-ICANN era was the property of Network Solutions and was not under the control of the National Science Foundation. (The NSF letter is an excellent example of bureaucratic gobbledygook and slight-of-hand - it tried to use Freedom of Information Act law - a completely distinct law - to claim that it had nothing to do with 'whois'.)

Well times have changed and now we have NTIA, the Federal agency that has stepped into NSF's role with respect to the internet.

And NTIA has exercised considerable control over the .us top level domain and over the policies under which it operates. Most importantly, NTIA has mandated not only that 'whois' information be collected but has also dictated the information privacy rules under which the .us whois operates.

It seems to me that NTIA is exercising sufficient control over the .us top level domain and over the associated registration records ('whois') to trigger Privacy Act obligations on NTIA and Privacy Act rights in individuals who may or may not be named in that database. Even if we were to use the agency-excusing standards that NSF used in its letter to me in 1997, it is hard to see that that NTIA can escape being subject to the act.

It would be an interesting exercise to make a request (similar to the one I made in 1997 to NSF) to NTIA and see how the agency reacts. A current-day request would need to indicate the factual situation so that NTIA would not be able to easily wiggle away from the fact that it does, in fact, control the whois database affiliated with the .us top level domain.

By-the-way, there's an a petition protesting NTIA's policy over the .us TLD.

"

(Via CaveBear Blog.)