I also support submitting. (Well, I would, wouldn't I!) Maria On 15 March 2012 19:15, Robin Gross <[log in to unmask]> wrote: > GreAt. Thank you very much. Let's submit. > > Robin > > On Mar 15, 2012, at 6:31 PM, Wendy Seltzer <[log in to unmask]> 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 -- [log in to unmask] +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/ > > >