[IAG-WHOIS conflicts] Follow up from IAG call

Wed Apr 29 06:42:27 UTC 2015

Thanks, Christopher.

I note from your email below that you have quoted the example of the EU privacy law.

It seems to me that the IAG discussions so far have assumed a strict prohibition on the collection and use of personal data under certain local law and the oft-quoted example is the “EU Privacy Law”.  However, with respect, a quick wiki search on “EU Privacy Law” will reveal that this is not the situation http://en.wikipedia.org/wiki/Data_Protection_Directive  Under the Data Protection Directive in the EU, “Personal data should not be processed at all, except when certain conditions are met. These conditions fall into three categories: transparency, legitimate purpose, and proportionality.”  It does not appear to be a complete prohibition on the collection and use of personal data in the EU.  In particular, article 7 of the EU Directive provides

“Article 7

Member States shall provide that personal data may be processed only if:

(a) the data subject has unambiguously given his consent; or

(b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; or

(c) processing is necessary for compliance with a legal obligation to which the controller is subject; or

(d) processing is necessary in order to protect the vital interests of the data subject; or

(e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed; or

(f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection under Article 1 (1).”

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML

Perhaps, the ICANN Secretariat could provide to members of IAG a briefing on the EU Privacy law as an example.

My apologies that I shall not be able to attend the upcoming conference call but would request the example of the EU Privacy law be revisited.

Regards,

Raymond

_________________________________________________

RAYMOND HO FCIArb, LLM(Lond), MSocSc(HK), LLB(Hons)(HK)
Independent Arbitrator

Suite 21, Level 4, 401-3, Cyberport 1, 100 Cyberport Road, Hong Kong.

E: arbitrator at raymondho.com 

From: Christopher Wilkinson 
Sent: Sunday, April 19, 2015 1:18 AM
To: James Gannon 
Cc: whois-iag-volunteers at icann.org 
Subject: Re: [IAG-WHOIS conflicts] Follow up from IAG call

Good afternoon. Thankyou, James for your useful comments. 

More generally, I am not very much taken with the idea that we should be editing the existing document, that is in principle unsustainable.

It is inappropriate to envisage a procedure whereby each and every Registrar in each and every EU Member State has to address this matter with ICANN, severally. No.

Allow me to refer, yet again, to the Articles of Incorporation of ICANN. Article 4:

4. The Corporation shall operate for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law …

The purpose of that text is to ensure that ICANN will respect, proactively, local law of which a current example is EU privacy law.

I hope that this is helpful

CW

PS: In the Wiki, what is the purpose of the "Resolve" button on the comments? First time I touched it, James' comment disappeared, which I am sure is not the intention!

On 18 Apr 2015, at 18:14, James Gannon <james at cyberinvasion.net> wrote:

  Hi Maria,
  Thanks for this, I was hoping that I would get to this sooner as I was the requestor I think! T

  I have made a number of comments and would encourage other members of the IAG to have a look at them prior to our next call. I would love to get some feedback on my initial comments and some of the members with more legal experience than I might be able to flesh out some of my less informed comments.

  James Gannon

  From: Maria Otanes <maria.otanes at icann.org>
  Date: Thursday 2 April 2015 15:42
  To: "whois-iag-volunteers at icann.org" <whois-iag-volunteers at icann.org>
  Subject: Re: [IAG-WHOIS conflicts] Follow up from IAG call

  Hello all,

  Following up on a request from yesterday’s call and Mary’s email below, we have created a Google docs workspace for the ICANN Procedure for Handling WHOIS Conflicts with Privacy Law. Everyone on this email distribution has access to the document and has the ability to suggest edits or provide comments. If you have any questions or run into any problems with the Google doc, please let us know. Thanks.

  https://docs.google.com/document/d/18WWFEu2ud7Prd4g2LI2UM0a9zT-Q8v9lHtbLJ8rchvU/edit

  Kind regards,
  Maria

  From: Mary Wong <mary.wong at icann.org>
  Date: Wednesday, April 1, 2015 8:04 PM
  To: "whois-iag-volunteers at icann.org" <whois-iag-volunteers at icann.org>
  Subject: [IAG-WHOIS conflicts] Follow up from IAG call

  Dear IAG members,

  Thank you for a productive meeting earlier today. To follow up, these points that emerged from the discussion may be useful “action items” for the group to consider prior to the next call:

  (1) On what would be adequate and practicable to satisfy the policy that a registry or registrar “credibly demonstrate” that it is legally prevented from complying with its contractual obligations regarding its collection, display or distribution of Whois data – in other words, what the appropriate “triggers” for invoking the procedure should be:

  The IAG may find the report of public comments received to the proposal to review the procedure, as well as the actual public comments themselves, helpful in continuing its discussions on this issue. These documents can be found on the IAG wiki space as well as here: https://www.icann.org/public-comments/whois-conflicts-procedure-2014-05-22-en. Your further deliberations will be critical to taking forward some of the suggestions outlined in the discussion paper that Jamie had circulated, to ensure that future discussions center on suggestions made by the community (as reflected in the public comments received) and the IAG.

  (2) On whether, in addition to the procedure, the underlying policy itself needs to be reviewed (noting that the IAG’s mandate is limited to recommending such a review, if any, to the GNSO, as the IAG is not chartered as a policy making body):

  The IAG may find it helpful to list and document those elements and/or steps in the current procedure that need to be changed, and do the same for the underlying policy. This exercise should be of assistance in both framing further discussions of the IAG beyond the triggers and on the various other aspects of the procedure, as well as identifying the specific rationale for, and elements that require reviewing, in the policy, if any. The procedure can be found here: https://www.icann.org/resources/pages/whois-privacy-conflicts-procedure-2008-01-17-en and the policy, as approved by the GNSO Council and subsequently by the ICANN Board, is contained in the GNSO Council’s resolution here: http://gnso.icann.org/en/council/resolutions#200511.

  ICANN staff will look into creating a Google Docs workspace, as requested on the call, in the hopes of furthering the IAG’s deliberations on these and the other topics outlined in the mission and scope for the group.

  Thanks and cheers
  Mary

  Mary Wong
  Senior Policy Director
  Internet Corporation for Assigned Names & Numbers (ICANN)
  Telephone: +1 603 574 4892
  Email: mary.wong at icann.org

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  Whois-iag-volunteers at icann.org
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