<HTML><FONT FACE=arial,helvetica><HTML><FONT SIZE=2 PTSIZE=10 FAMILY="SANSSERIF" FACE="Arial" LANG="0">Friends:<BR>
I am pleased to report that after 3 years of work, the WHOIS Task Force (TF)<BR>
finally has a recommendation we can support! Now posted on both the<BR>
GNSO and ICANN homepages is a procedure (from the WHOIS TF to the<BR>
Council) that would allow Registrars to respect their own privacy laws and<BR>
protect personal data -- when threatened with prosecution under their<BR>
national/local privacy laws. <BR>
<BR>
This Recommendation is an important first step -- to allow ICANN to work with<BR>
Registrars who live in countries that protect and prosecute under their data protection laws. If passed by GNSO Council and the ICANN Board, it will be the first time that ICANN has a mandate to create a set of exceptions to the Registrar contracts -- and the first time that ICANN officially recognizes that the personal data located in the WHOIS databases (including name, address, telephone and email) <BR>
is protected and governed by national and local laws. <BR>
<BR>
Would you please take a moment to support this important recommendation? Short comments from your organization, or you as an individual, are welcome.<BR>
PROCEEDING: Combined WHOIS task force (1,2 & 3)<BR>
Preliminary Report on a policy recommendation and advice on a<BR>
procedure for handling conflicts between a registrar/registry's<BR>
legal obligations under privacy laws and their contractual<BR>
obligations to ICANN <BR>
**DEADLINE: Sunday, October 2, 2005, 5pm.** <BR>
LINKS: www.icann.org or www.gnso.icann.org click Public Comment Forum<BR>
COMMENTS TO: gnso-whoisprivacy-cmts@icann.org<BR>
COMMENTS ARCHIVED AT: http://forum.icann.org/lists/gnso-whoisprivacy-cmts <BR>
<BR>
If you have any questions, feel free to contact me. <BR>
Regards,<BR>
Kathy Kleiman (co-author of this Recommendation as one of NCUC's Representation to the Combined WHOIS TF)<BR>
<BR>
p.s. This Recommendation is an important first step. Milton and I have told the TF that we must continue to work towards changes in the WHOIS database that protect the privacy of ALL registrants. <BR>
<BR>
Additional Background useful for preparing comments:<BR>
Published back in 2003, the original report of WHOIS Task Force 2 noted that<BR>
Registrars were receiving complaints for violations of privacy laws with the<BR>
collection and publication of personal data in the WHOIS database (mandated<BR>
by ICANN's Registrar Accreditation Agreement). The TF2 report was strong in<BR>
its conclusions:<BR>
"The Task Force believes that there is an ongoing risk of conflict<BR>
between a registrars' or registries' legal obligations under local privacy laws<BR>
and their contractual obligations to ICANN. Since the variety of the existing<BR>
local privacy laws does not allow for a one-size-fits-all solution, the registrars<BR>
and registries encountering such local difficulties should be allowed an<BR>
exception from the contractual WHOIS obligation for the part of the WHOIS<BR>
data in question by the local regulation, after proving the existence of such a<BR>
conflict with a law or regulation."<BR>
<BR>
In this report, TF2 also published a Table of Registrars, their countries and the<BR>
data protection laws (overview) of the countries. This Excel spreadsheet is<BR>
very interesting, and posted at the NCUC website www.ncdnhc.org under<BR>
"Summary of national laws affecting data privacy."<BR>
<BR>
This year the Combined WHOIS TF moved forward with the work above and<BR>
created the Policy Recommendation now under review. It received unanimous support from all the Constituencies at the TF level! Here is the text:<BR>
<BR>
"I. Task Force Policy for WHOIS Conflicts with Privacy Law <BR>
CONSENSUS POLICY RECOMMENDATION <BR>
In order to facilitate reconciliation of any conflicts between<BR>
local/national mandatory privacy laws or regulations and applicable<BR>
provisions of the ICANN contract regarding the collection, display and<BR>
distribution of personal data via Whois, ICANN should: <BR>
Develop and publicly document a procedure for dealing with the<BR>
situation in which a registrar or registry can credibly demonstrate<BR>
that it is legally prevented by local/national privacy laws or<BR>
regulations from fully complying with applicable provisions of<BR>
its ICANN contract regarding the collection, display and<BR>
distribution of personal data via WHOIS. <BR>
Create goals for the procedure which include: <BR>
<BR>
Ensuring that ICANN staff is informed of a conflict at the<BR>
earliest appropriate juncture; <BR>
Resolving the conflict, if possible, in a manner conducive to<BR>
ICANN's Mission, applicable Core Values and the<BR>
stability and uniformity of the Whois system; <BR>
Providing a mechanism for the recognition, if appropriate, in<BR>
circumstances where the conflict cannot be otherwise<BR>
resolved, of an exception to contractual obligations to<BR>
those registries/registrars to which the specific conflict<BR>
applies with regard to collection, display and distribution<BR>
of personally identifiable data via Whois; and <BR>
Preserving sufficient flexibility for ICANN staff to respond to<BR>
particular factual situations as they arise."<BR>
<BR>
Detailed procedures for the handling conflicts with privacy law are set<BR>
out in Section II of the report (see links above).</FONT></HTML>