Proposed comments for the WHOIS RT

Ginger Paque gpaque at GMAIL.COM
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
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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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