Re: Phone book
My phone number and my name are not in the phone book.
Yet I still have a phone number and people can still phone me.
My name and address are not in the public (edited) electoral roll.
Yet I can still vote.
My name, addres and phone number do not need to be in the public whois database for my domains to resolve correctly.
As you said, there is no difference and ICANN simply needs to comply with the law or suffer the consequences. It is neither technically nor politically difficult for them to do so, as most registrars already do offer a service which would comply - at extra cost.