[arin-ppml] SWIPs & IPv6

[tvest at eyeconomics.com]

On Dec 5, 2009, at 4:11 PM, Milton L Mueller wrote:

> Thanks, Lee, I will take a look at that. But note that I have been  
> through a similar debate on the DNS side, and the more I learned  
> about the LEA position the more I realized that standard protections  
> and procedures should apply.  Indeed, I have discussed this with  
> several LEAs in Europe who will admit (privately) that they use  
> Whois to avoid legal constraints and that doing so has no  
> justification other than their own convenience and that open access  
> to the information is often abused or leads to abuse by third parties.

Given your very well-known, lopsided hard-line position on privacy  
matters, this claim defies all credibility. It's literally impossible  
to imagine some credible LEA insider glibly confessing this to you.  
However, its quite easy to imagine you exercising your equally well- 
known authorial license by selectively summarizing some description of  
LEA practices down to "unjustified evasion of legal constraints, just  
because it's easy."

The real problem is the act of *misuse* of identifying information,  
and not the legal status or identity of the party misusing it, or the  
particulars of how the misused information was come by. And given  
that, your demand for what boils down to the imposition of prior  
restraint on an essential component of Internet technical coordination  
represents a strange, if predictable, departure from your otherwise  
panglossian insistence that post-facto individual legal remedies are  
always and everywhere sufficient to handle any unfortunate side- 
effects of private market behavior. Why don't you counsel those  
alleging "whois abuse" to simply address their grievances to the  
courts, the same way that you counsel victims of abusive private  
sector practices or the exercise of anticompetitive market power to  
take it to the judge?

List members may find the contrast between what you're advocating here  
and what you advocated in the run-up to the privatization of DNS  
illumInating.
In your October 1997 CATO Institute Briefing Paper, "Internet Domain  
Names: Privatization, Competition, and Freedom of Expression," you  
write:
> The Burden of Proof on Applicants for Domain Names
>
> Some people have suggested that domain name applicants be required  
> to demonstrate that they have a basis for requesting a particular  
> domain name. Further questions then arise. What information should  
> be supplied? Who should evaluate the information? What basis or  
> criteria should be used?
>
> Those questions are helpful but need to be reframed. The answers to  
> them can come only from the policies name registries adopt to  
> prevent name speculation and to control the secondary market for  
> names. Name speculation is a form of arbitrage. Speculators attempt  
> to exploit the gap between the price of registering a name and the  
> higher value of that name to some other potential user. Name  
> speculation thus provides a clear signal that the primary  
> distributor of name registrations is not exploiting the full  
> economic value of its name resources.
>
> The best long-term solution to this problem is privatization of name  
> registration and expansion of TLD space. It is in the rational self- 
> interest of commercial registries to manage name resources actively  
> rather than passively. Just as airlines or movie theater owners do  
> not allow aggregators and wholesalers to buy up all available seats  
> and resell them to end users, so it seems unlikely that private,  
> profit-motivated name registries would allow speculators, rather  
> than themselves, to exploit the full economic value of their  
> namespace. As the namespace becomes privatized and commercialized,  
> it seems likely that more active monitoring of who is applying for  
> names and why would take place. Administrative policies such as this  
> are much preferable to intellectual property law as a solution to  
> problems of name speculation.
>
Full text here:
http://www.cato.org/pub_display.php?pub_id=1473&full=1

This little nugget is full of telling observations -- from your unique  
"theory of speculation" to your predictions about how privatization  
and competition would influence the policy-setting behavior of  
commercial domain registries. I'm guessing that you'd still stand by  
these recommendations, even knowing that one consequence of their  
implementation has been the permanent elimination of DNS whois as an  
effective mechanism for inter-domain technical coordination, but feel  
free to surprise me.

Arguably, history has demonstrated that DNS whois was, in fact,  
expendable. However, that's only because the underlying/parallel  
inetnum whois provided a sufficient if not superior mechanism for most  
technical coordination requirements. The whois functions provided by  
the RIRs are different in kind than DNS whois, and for those functions  
there is no plausible substitute -- or at least none that can be  
provided by voluntary private action.

So, for the present discussion, I would highlight the last two  
sentences of this passage, and ask Milton why "administrative  
policies" such as the ones that make inetnum-related whois viable  
should not be preferred over the imposition of legally (i.e.,  
nationally) mandated compulsory address resource registration, which  
is likely to be the only alternative?

I know you're not big on actually answering practical, policy-relevant  
questions in any substantive way. That's your prerogative.
But I'll keep asking them anyway, if only to remind other readers of  
your long-standing disinclination to put any of your own ideas to any  
meaningful, real-world test.

TV