[Gnso-ppsai-pdp-wg] SG-C Input Template Redux

Tue Jan 14 14:55:42 UTC 2014

Hi Don,

The same goes for civil law based countries. Something can only be referred to as illegal if a court has ruled it is so. Until then you need to refer to it as “prétendument illégal“  which means alleged/assertedly.

And it goes even further because in those jurisdictions, law enforcement have to search for both inculpatory and exculpatory evidence when investigating.

In any case if something is illegal and not allegedly illegal, a court order will need to be produced and action will be taken accordingly.

My 0,2 euro-cents.

Luc

On Jan 14, 2014, at 15:33, Maria Farrell <maria.farrell at gmail.com<mailto:maria.farrell at gmail.com>> wrote:

Hi Don,

The use of 'alleged' is common, not to say required in Ireland and, I believe the UK. I expect it's used in most or all common law jurisdictions to communicate the fact that the issuance of a procedure is not itself an indictment, and that even-handedness is an essential given that the 'alleged x, y or z' may well in fact be innocent and the role of the process in hand is precisely to determine whether or not this is the case.

In this context, I think it's critical that our discussions are fully cognizant of the fact that accessing whois as a corrective for misdeeds is a process designed in fact for *alleged* misdeeds. It is all too easy to slip into a law enforcement frame of mind where the 'alleged perpetrator' is simply thought of as a perpetrator, and not afforded the presumption of innocence, even in simple procedural or administrative matters such as personal data access.

While designing a procedure like this one, we need to be extremely careful not to slip into lazy assumptions of guilt, just because of the predominance of voices that naturally assume it.

Maria

On 14 January 2014 14:18, Don Blumenthal <dblumenthal at pir.org<mailto:dblumenthal at pir.org>> wrote:
Kathy,

Thanks for all of the work in this document.

I will address a couple of points but leave the substance for the WG consideration. Discussing a minor item first, the use of “alleged” is the result of publicity concerns in the US that arose in, I believe, the 1960s and definitely not before. The usage arose with respect to named defendants. I don’t think it’s necessary here.  I’m curious from others if the practice of using alleged or something similar before conviction or acquittal is common elsewhere.

More fundamentally, we wouldn’t be going through this exercise if the language were sacred. We have made changes. The question is how long we keep making them before sending the letters. Distributing them does not lock us into anything.  Rather, they are tools for gathering community input to inform our substantive work and how we go about it.

Best,

Don

From: Kathryn Kleiman <kathy at kathykleiman.com<mailto:kathy at kathykleiman.com>>
Date: Saturday, January 11, 2014 at 6:30 PM
To: PPSAI <gnso-ppsai-pdp-wg at icann.org<mailto:gnso-ppsai-pdp-wg at icann.org>>

Subject: [Gnso-ppsai-pdp-wg] SG-C Input Template Redux

Hi All,
I hope you are having a good weekend. NCSG members wanted to follow-up on the invitation at the end of last Tuesday's meeting to share revisions to the SG/Constituency and SO/AC questions for consideration this Tuesday.

As requested by staff and our chair, we went back and read closely the background materials. Most questions originate in a report from staff of open issues after the close of the RAA negotiation. They compile questions of those still unhappy with the proxy/privacy system. There was no attempt by the writers of these questions to fair or neutral or balanced or even use consistent terminology-- that was not their goal, and that's fine.

But is that be our goal?  Shouldn't we more fair, neutral, balanced and use consistent terminology?  In brief:
- Malicious or illegal activity has to be judged so, right? If not, it's "alleged" malicious or illegal activity, right?
- There might be some people who are happy with the current proxy/privacy system that allows companies, organizations and individuals to have p/p privacy protection for legal purposes. Shouldn't we at least ask?

So here is a set of questions NCSG members of the WG have put together. We tried to include discussions of Luc, Volker and John earlier, but note jurisdictional issues are thorny, and we look to your guidance and input again on these. We also hope staff can put together a compilation.

In my world, there are only a few sacred texts -- so perhaps there is room for a bit more editing here :-).
All the best,
Kathy

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