Proposed comments for the WHOIS RT

Sat Mar 17 16:43:27 CET 2012

thanks for all the substantive work! Great for NCSG, great for best
practices. Gracias, Ginger
Ginger (Virginia) Paque

VirginiaP at diplomacy.edu
Diplo Foundation
Internet Governance Capacity Building Programme
www.diplomacy.edu/ig
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On 16 March 2012 14:28, Nicolas Adam <nickolas.adam at gmail.com> wrote:

>  Amazing work.
>
> Nicolas
>
> On 16/03/2012 11:20 AM, Maria Farrell wrote:
>
> I also support submitting. (Well, I would, wouldn't I!)
>
>  Maria
>
> On 15 March 2012 19:15, Robin Gross <robin at ipjustice.org> wrote:
>
>> GreAt.  Thank you very much.  Let's submit.
>>
>> Robin
>>
>> On Mar 15, 2012, at 6:31 PM, Wendy Seltzer <wendy at SELTZER.COM> wrote:
>>
>>  > Thanks very much to Maria and Joy for contributions to this, proposed
>> > comments for the WHOIS RT.  Comments are due March 18, but I'd like to
>> > send them before leaving tomorrow, if possible.
>> > <http://www.icann.org/en/news/announcements/announcement-05dec11-en.htm
>> >
>> >
>> > We would like to commend the general readability of the report. WHOIS
>> > has become a very complex issue, and presenting it so clearly and
>> > accessibly facilitates participation in both this consultation process
>> > and participation more generally. We particularly appreciate the hard
>> > work of collecting the WHOIS policies from the various places where
>> > they reside.
>> >
>> > High-level recommendations:
>> >
>> > The report should explicitly recommend that WHOIS policy recognize
>> > that registrants, both individual and organizations, commercial and
>> > non-commercial, have a legitimate interest in, *and in many
>> jurisdictions
>> > the legal right to, the privacy of their personal data*.
>> >
>> > In the normative discussion, privacy should be given equivalent emphasis
>> > to accuracy. *It would be instructive in this regard to reference the
>> > OECD privacy guidelines, agreed to by all OECD member countries with
>> input
>> > from business and civil society. Data accuracy (or 'quality') is
>> considered
>> > by OECD members to be of equal importance to purpose specification, use
>> > limitation and security safeguards, none of which factors are supported
>> by
>> > Whois as it currently operates. (OECD Guideline reference:
>> >
>> http://www.oecd.org/document/18/0,3343,en_2649_34255_1815186_1_1_1_1,00.html
>> > ) *
>> >
>> > It is as important that registrants have privacy as that
>> > their data be accurately recorded. At the moment, the report appears,
>> > from its emphasis on access and accuracy, to discount those privacy
>> > concerns *that are accepted by all OECD member states and participating
>> > business and civil society actors as having equal importance.*
>> >
>> >
>> > Section F. Findings
>> >
>> > The brief ‘tour de table’ provides useful background reading, but
>> > *should* include
>> > reference to the fact that ICANN’s Whois policies are
>> > incompatible with the OECD privacy guidelines and also applicable
>> national
>> > laws in many countries, including
>> > member states of the European Union.*The European Union's Article 29
>> > Working Party of national data protection officers provided specific
>> input
>> > to ICANN's 2003 Montreal meeting regarding the many ways gTLD Whois
>> > breaches EU law. These included the lack of definition of a purpose of
>> > Whois, lack of use limitation, misuse of Whois data by third parties and
>> > the disproportionality of the publication of personal data. The Article
>> 29
>> > Working Party concluded that "there is no legal ground justifying the
>> > mandatory publication of personal data referring to this person. (the
>> > registrant)". *
>> >
>> > *(Article 29 WP reference: Opinion 2/2003 on the application of the data
>> > protection principles*
>> >
>> > *to the Whois directories  *
>> >
>> http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2003/wp76_en.pdf
>> )
>> >
>> > *It is very concerning that the findings of the Whois Review Team do not
>> > consider the glaring fact of the illegality of gTLD Whois requirements
>> in
>> > many jurisdictions, and the incompatibility of Whois as it currently
>> stands
>> > with the only internationally accepted guidelines on data privacy. *
>> >
>> >
>> > Section G. Recommendations
>> >
>> > 1.  Single Whois Policy - "The Board should oversee the creation of a
>> > single Whois policy document."
>> >
>> > We welcome the call for a single Whois policy that sets out the
>> > requirements, globally and facilitates registrants who wish to consult
>> > those requirements. Whois ‘policy’ is currently inferred from registry
>> > and registrar contracts.* A single Whois policy should be compatible
>> with
>> > the internationally accepted OECD privacy guidelines, in respect of a
>> > statement of purpose for the use of data, use limitation, data accuracy
>> and
>> > appropriate security safeguards for personal data.* However, gTLD policy
>> > development is the
>> > responsibility of the GNSO, not the Board (until the final stages),
>> > and needs to be developed through the bottom up process, with the
>> > cooperation of the multiple stakeholders affected.
>> >
>> > 3 - "Make Whois a Strategic Priority"
>> >
>> > Change "Strategic Priority" to "Strategic Consideration." As the
>> > review team was focused only on WHOIS, it was in no position to
>> > analyze the tradeoffs involved in setting global priorities. Many
>> > items on ICANN's policy agenda *may be considered* more worthy of the
>> > community's
>> > limited time and attention. *The appropriate process for the community
>> to
>> > prioritize issues such as Whois is via the Strategic Plan.* No evidence
>> > is offered in this report to support prioritizing
>> > WHOIS o*ver other issues of importance to the community as a whole.*
>> >
>> > 5 - Data Accuracy - As many law enforcement comments in the report
>> > suggest, contactability is more important than "accuracy." Separation
>> > of the contact details from the public display could enhance the
>> > accuracy of the contact details available to appropriately qualified
>> > requesters.
>> >
>> > 10-16. "Data Access: Privacy and Proxy Services."
>> >
>> > The recommendations should explicitly acknowledge the importance of
>> > privacy and proxy services in providing options to legitimate Internet
>> > users to preserve their privacy. National laws in the United States,
>> > for example, recognize privacy interests not only for individuals, but
>> > for associations. The report further documents the legitimate
>> > interests of even commercial Internet users in private domain name
>> > registrations.
>> > *       In relation to the references to national legislation: it is
>> > important to note that this reference may be problematic if national
>> > legislation violates international human rights standards, for example,
>> > relating to freedom of expression (see the citation of this report
>> below).
>> > *       Freedom of association: proxy registration services can support
>> the
>> > rights of human rights defenders to carry out lawful activity without
>> > persecution. Threats to registrants include surveillance of registrants
>> > through use of information which is accessed via WHOIS data -
>> continuing to
>> > expand the nature of information held in WHOIS will only heighten the
>> > safety
>> > concerns of human rights defenders. In addition, just in time attacks on
>> > websites of civil society organisations have been used to disrupt lawful
>> > activity and democratic participation in a number of countries: see
>> > Deibert,
>> > R., Palfrey, J., Rohozinski, R. & Zittrain, J. (Eds.) (2011). Access
>> > Controlled: The Shaping of Power, Rights, and Rule in Cyberspace. MIT
>> > Press.
>> > *       Governments whose legislation is in violation of these rights
>> > should
>> > not be able to rely on such laws when requesting WHOIS data access and
>> > proxy
>> > information. It would be unreasonable to require Registrars to carry
>> out an
>> > additional analysis. Other options include:
>> > (1)     Provide that LEA WHOIS data requests may be refused where there
>> are
>> > reasonable grounds to believe that such requests may violate
>> *registrants'
>> > *
>> > rights of freedom of expression or freedom of association
>> > (2)     Require LEA to verify that national laws comply with human
>> rights
>> > standards
>> > (3)     Require LEA to verify that WHOIS requests do not violate
>> > international human rights standards
>> >
>> >>
>> > 17 - Data access - "ICANN should set up a dedicated, multilingual
>> > interface website to provide thick Whois data for" COM and NET, who
>> > have thin whois.  This is subject to existing policy and policy-making
>> > by the GNSO. It is inappropriate for the Review Team to intervene at
>> > this level of detail into the GNSO policy process, *and in a way that
>> > privileges certain substantive outcomes over others.*
>> >
>> >
>> > Section E. Work of this RT
>> >
>> > A factual point. There is only one Chatham House rule, so the statement
>> > referring to it should use the singular.
>> >
>> > Freedom of Expression References:
>> >
>> > As noted by the UN Special Rapporteur on Freedom of Opinion and
>> Expression
>> > in his annual report of 2011:
>> >
>> >               23.     The vast potential and benefits of the Internet
>> are
>> > rooted in its unique characteristics, such as its speed, worldwide reach
>> > and
>> > relative anonymity. At the same time, these distinctive features of the
>> > Internet that enable individuals to disseminate information in "real
>> time"
>> > and to mobilize people has also created fear amongst Governments and the
>> > powerful. This has led to increased restrictions on the Internet through
>> > the
>> > use of increasingly sophisticated technologies to block content, monitor
>> > and
>> > identify activists and critics, criminalization of legitimate
>> expression,
>> > and adoption of restrictive legislation to justify such measures. In
>> this
>> > regard, the Special Rapporteur also emphasizes that the existing
>> > international human rights standards, in particular article 19,
>> paragraph 3
>> > of the ICCPR, remain pertinent in determining the types of restrictions
>> > that
>> > are in breach of States' obligations to guarantee the right to freedom
>> of
>> > expression.
>> >               24.     As set out in article 19, paragraph 3 of the
>> ICCPR,
>> > there are certain, exceptional types of expression which may be
>> > legitimately
>> > restricted under international human rights law, essentially to
>> safeguard
>> > the rights of others. This issue has been examined in the previous
>> annual
>> > report of the Special Rapporteur. However, the Special Rapporteur deems
>> it
>> > appropriate to reiterate that any limitation to the right to freedom of
>> > expression must pass the following three-part, cumulative test:
>> > (1)     it must be provided by law, which is clear and accessible to
>> > everyone (principles of predictability and transparency); and
>> > (2)     it must pursue one of the purposes set out in article 19,
>> paragraph
>> > 3 of the ICCPR, namely (i) to protect the rights or reputations of
>> others,
>> > or (ii) to protect national security or of public order, or of public
>> > health
>> > or morals (principle of legitimacy); and
>> > (3)     it must be proven as necessary and the least restrictive means
>> > required to achieve the purported aim (principles of necessity and
>> > proportionality).
>> >                       Moreover, any legislation restricting the right to
>> > freedom of expression must be applied by a body which is independent of
>> any
>> > political, commercial, or other unwarranted influences in a manner that
>> is
>> > neither arbitrary nor discriminatory, and with adequate safeguards
>> against
>> > abuse, including the possibility of challenge and remedy against its
>> > abusive
>> > application.
>> > And further:
>> >
>> > 26      However, in many instances, States restrict, control,
>> manipulate and
>> > censor content disseminated via the Internet without any legal basis,
>> or on
>> > the basis of broad and ambiguous laws; without justifying the purpose of
>> > such actions; and/or in a manner that is clearly unnecessary and/or
>> > disproportionate to achieve the intended aim, as explored in the
>> following
>> > sections. Such actions are clearly incompatible with States' obligations
>> > under international human rights law, and often create a broader
>> chilling
>> > effect on the right to freedom of opinion and expression.
>> > (full reference: Frank La Rue "Report of the Special Rapporteur on the
>> > promotion and protection of the right to freedom of opinion and
>> expression"
>> > (26 April 2011, A/HRC/17/27) also available at: http://scr.bi/z6lZ8N )
>> >
>> >
>> >
>> >
>> >
>> > --
>> > Wendy Seltzer -- wendy at seltzer.org +1 914-374-0613
>> > Fellow, Yale Law School Information Society Project
>> > Fellow, Berkman Center for Internet & Society at Harvard University
>> > http://cyber.law.harvard.edu/seltzer.html
>> > https://www.chillingeffects.org/
>> > https://www.torproject.org/
>> > http://www.freedom-to-tinker.com/
>> >
>>
>
>
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