Comment on WHOIS Policy Review Team Draft Report

[Avri Doria]

Comment on draft-final-report-05dec11-en.pdf 

While I support the comments submitted by the NCSG <http://forum.icann.org/lists/whois-rt-draft-final-report/msg00021.html>, I wish to discuss further a point that were merely alluded to in that comment.  My comment relate to cross jurisdictional limits on national sovereignty in relation to human rights.

Just as the ICANN community often speaks of "bad actors" among Registrars and Registrants, we must recognize that 'bad actors' exist among the governments of the world.  By 'bad actors' among the governments of the world, I refer to those governments who consistently violate the principles of the Universal Declaration of Human Rights (UDHR) <http://www.un.org/en/documents/udhr/> and the International Covenant on Civil and Political Rights  (ICCPR) <http://www2.ohchr.org/english/law/ccpr.htm>, as well as other international treaties and covenants.   As with 'bad actors' within the Regstrars and Registrants, the 'bad actors' within governments are a minority, but they do exist.  I refer specifically, not only to those governments who use private data to prosecute citizens for freedom of speech and association, but those who persecute and imprison, and sometimes worse, their citizens for the 'crime' of being gay, i.e for having a gender orientation or gender expression that is outside their narrow cultural norms.

The draft document frequently speaks of the authority of national law in requiring Registrars and Thick Registries to turn over privacy and proxy data. However, when that national law is in contravention to international law on human rights, it MUST not be honored.  It is bad enough that these governmental 'bad actors' could force the Registrars and the Thick Registries within their own borders to comply with their illegal demands, it is unacceptable that ICANN should become complicit in their crimes against humanity by virtue of its contractual rules on Registrars and Thick Registries.

As United Nations Secretary General Ban Ki Moon said on 29 January 2012 in an address to the leaders of the African Union

"
Let me mention one form of discrimination that has been ignored or even sanctioned by many states for far too long, discrimination based on sexual orientation or gender identity.  This has prompted some governments to treat people as second-class citizens, or even criminals. Confronting this discrimination is a challenge.  But we must live up to the ideals of the Universal Declaration [of Human Rights]
"

This is similar to remarks made by United States Secretary of State Hillary Clinton Hillary Clinton in her Human Rights Day speech, delivered in Geneva on 6 December 2011.

"
Like being a woman, like being a racial, religious, tribal, or ethnic minority, being LGBT does not make you less human. And that is why gay rights are human rights, and human rights are gay rights. 

It is violation of human rights when people are beaten or killed because of their sexual orientation, or because they do not conform to cultural norms about how men and women should look or behave. It is a violation of human rights when governments declare it illegal to be gay, or allow those who harm gay people to go unpunished. It is a violation of human rights when lesbian or transgendered women are subjected to so-called corrective rape, or forcibly subjected to hormone treatments, or when people are murdered after public calls for violence toward gays, or when they are forced to flee their nations and seek asylum in other lands to save their lives. And it is a violation of human rights when life-saving care is withheld from people because they are gay, or equal access to justice is denied to people because they are gay, or public spaces are out of bounds to people because they are gay. No matter what we look like, where we come from, or who we are, we are all equally entitled to our human rights and dignity.
"

Likewise it is a violation of human rights for ICANN rules on REVEAL to endanger populations and associations whose only crime is in expressing their human rights and thus to expose them to the crimes against humanity committed by their governments under the pretext of it being illegal to be gay.

My recommendation for the final report is that whenever, the authority of national law is referred to in the WHOIS Review recommendations, it should include the qualifier "contingent on adherence to Internationally recognized covenants and treaties on Human Rights",  so that the authority of governmental 'bad actors' is blocked from extending contractually to Registrars and Registries.

Thank you

Avri Doria