“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 (22.214.171.124),
– Name, address, email address, phone number and fax (if available) of the domain name’s technical contact (126.96.36.199), and
– Name, address, email address, phone number and fax (if available) of the domain name’s administrative contact (188.8.131.52)
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.
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.
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.
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.
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.
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.
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