The Privacy Conundrum in Domain Registration

Every person who registers one of the main top level domain names such as a .com, .net and .org as well as some country code top level domains is required to agree to the Uniform Domain Name Dispute Resolution Policy.
The UDRP not only provides a mechanism through which domain disputes are handled but it also requires that each registrant agree that the statements made in the "Registration Agreement are complete and accurate."

The most important information collected in a Domain Registration Agreement is the ownership information for a domain name including the registrant's name, address, phone number and email information.

Under the May 21, 2009 Registrar Accreditation Agreement (updated August,
2012) between Registrars and ICANN that defines the responsibilities of
Registrars, an ICANN accredited Registrar is obligated to maintain a
publically accessible WHOIS datbase that provides the following:

- Name and address of the domain's Registered Name Holder (3.3.1.6),

- Name, address, email address, phone number and fax (if available) of the
domain name's technical contact (3.3.1.7), and

- Name, address, email address, phone number and fax (if available) of the
domain name's administrative contact (3.3.1.8)

In other words, the person registering a domain name is required to
provide accurate information for the ownership records and an ICANN
Accredited Registrar must make that information publically available.

Why is a Domain Name's Contact Information public and not private?

By the late 1990's trademark infringement in domain names was a widespread
problem. People were buying domain names that infringed on company
trademarks. They were setting up phony websites that tricked consumers
into thinking that the website belonged to the trademark owner. These
cybersquatters were difficult and expensive for the trademark holders to
fight throughout the world. The Uniform Dispute Resolution Policy was
created in order to make it easy and inexpensive for a trademark holder to
resolve such disputes and to lessen the likelihood of consumer confusion.

The contact information of all domain owners was made public so that if a
domain was disputed the registrant could be easily discovered and
contacted.

The Development of Unforeseen Issues

Since a domain name owner's information was publically available it wasn't
long before this information became a target for the unscrupulous. This
information was mined and used for a variety of illegal, unethical and/or
illicit purposes including scammers, spammers, direct marketing groups,
identity theft rings and other shady individuals and companies.

The Birth of Private Registration

Accredited Registrars were put in a difficult position. Required by ICANN
to make a domain owner's information public in order to protect the
public, the registrars were also bombarded by unhappy customers who wanted
their personal information kept private.

In response to this, private domain registration was born.

With private registration a Registrar registers the domain in the
Registrar's name, not the person who is registering the domain. This
allows the Registrar to put its contact information in the Domain Contact
Information fields fulfilling the Registrar's obligations to ICANN yet
also keeping the Registrar's customer information safe from public view.

Legal Issues with Private Registration

Since the legal domain owner is the required owner of the domain name, in
a private registration the domain owner is the Registrar not the person
who registered the domain name. While this has occasionally caused some
legal issues, for the average user who is not using privacy as a shield to
illegal or illicit activity or trademark infringement it is not an issue
and results in protection of his or her personal information.

 

Another outcome of private registration is that it has made it much harder for law enforcement to take action against law breakers such as counterfeiters since they are unable to locate the persons behind such websites using the public whois directory.  A subpoena will usually result in the identity of the registrant being provided. 

Where We Stand Today

Today, the privacy conundrum continues. On the one hand there is the
public's need for protection against cybersquatters and deceptive
trademark infringement. On the other there is an individual's right to
privacy and the need to protect his or her personal information from
unscrupulous individuals and companies. Even though this matter has been
discussed within ICANN and among Registrars a consensus to balance these
two competing interests has yet to be reached and it is unlikely one will
be in the near future.

 

Related Posts of Interest

Guide to Private Domain Registration

Domain Privacy