Input to Expert Working Group on gTLD Directory Services Has the EWG Evaluated Closely What is at Stake for Registrants?

Thu Aug 22 14:26:46 UTC 2013

*We submit the following comments (below and attached) to the EWG to ask: **Has
the EWG Evaluated Closely What is at Stake for Registrants?*

*
Sincerely,
**Kathy Kleiman
Tamir ******Israel******
******Milton****** Mueller
******Roy****** Balleste
Robin Gross
Avri Doria
Marie-Laure Lemineur
Peter Green
Edward Morris
All members of the NCSG*

****************************************************************

*Has the EWG Evaluated Closely What is at Stake for Registrants?*

As trumpeted at the ITU meeting in Dubai, and on news programs across the
globe, the Internet is the greatest form of communication known to mankind
– a link across individuals, organizations and companies that can help
bring down dictatorships, bypass state-controlled media and allow
individuals to communicate the most interesting and controversial ideas
directly to each other.

I. Privacy is a Human Right

As has been shared at ICANN since its founding, privacy is a human right
firmly rooted in the United Nations’ Universal Declaration of Human Rights
(UDHR), and it states, in Article 1, that *“all human beings are born free
and equal in dignity and rights.” *The UDHR specifically protects privacy
in Article 12.  Furthermore, the United States, European nations, and
almost all of the governments that participate at ICANN, have signed and
ratified the International Covenant on Civil and Political Rights (ICCPR),
which codifies the Universal Declaration of Human Rights, including
Articles 17 (privacy) and 19 (freedom of expression).

Article I of the 1948 American Declaration on the Rights and Duties of Man,
articulates the right of every human being right *“to life, liberty and the
security of his person.”*  Article IV declares *“the right to freedom of
investigation, of opinion, and of the expression and dissemination of
ideas, by any medium whatsoever.”  *
Above all, Article V notes *“the right to the protection of the law against
abusive attacks upon his honor, his reputation, and his private and family
life.” *

In Latin American nations, there is a recent trend towards data directives,
and in the case of ****Argentina****, ****Peru****, ****Colombia****, and **
**Mexico****, these nations have enacted data protection laws.  Similar
guarantees exist in the 1969 American Convention on Human Rights (Art. 11),
and the 1950 European Convention on Human Rights and Fundamental Freedoms
(Art. 8).  The European Union Data Protection Directive (95/46/EC) of 1995
addresses the collection and disclosure of personal information. The
Directive has been enacted into national laws by the 27 member states.

Articles 1(1) of the Directive states that member states *“shall protect
the fundamental rights and freedoms of natural persons, and …their right to
privacy with respect to the processing of personal data.” *According to
Article 6, member states are obliged to handle personal data lawfully,
collected for specified, explicit and legitimate purposes, having regard to
the purposes for which they were collected, and appropriate safeguards for
personal data stored for longer periods.

This protection is further enhanced for the 47 member states of the Council
of Europe in the Convention for the Protection of Individuals with regard
to Automatic Processing of Personal Data of 1980, and the Additional
Protocol to the Convention for the Protection of Individuals with regard to
Automatic Processing of Personal Data regarding supervisory authorities and
transborder data flows of 2001. Human rights are also recognized in the
constitutions and other legal acts of nation-states around the world.
These documents demonstrate a worldwide consensus on the existence of the
universal right to privacy.

II.        The Internet is the Greatest Avenue Ever Created for Minority
Speech

That the Internet has become an avenue for minorities to communicate ideas
is clearly known. Those who felt they could easily communicate ideas in
person – because their religion is a minority in their region, because
their political ideas are a minority in their state, or because their ideas
off challenge and competition to those bigger and pre-existing, now have an
avenue in the Internet for communication, cooperation and challenge that
never before existed.

And people, governments, companies, and attorney want to stamp them
out.  Oppressive
governments want to arrest the leaders of movements that want to challenge
their leadership, even those seeking more human rights and democracy.
Oppressive companies want to find and drive out of business new and small
businesses with ideas that rival, challenge and threaten marketshare.  Many
seek to seize pithy domain names, without a legal basis, but through
threats and intimidation.

The ability of the world to come knocking on an individual, small
organization or small businesses’ door to contend, confront, accuse,
threaten, harass and object has been the direct result of the publication
of data in the gTLD Whois databases. Never before has such an inequity
existed – because traditionally names and addresses are not associated with
speech. Traditionally political ideas (by individuals or organizations) are
published with the name of the organization – not the place you can
throttle the organizer.

Pamphlets, brochures, signs worldwide traditionally trumpet the ideas, but
not the physical location of where those ideas originate – a right and
protection embraced by the US Supreme Court in 1995 in McIntyre vs. Ohio
Elections Commission, citing not only US law, but a worldwide tradition of
writing our most dramatic and world-changing ideas under anonymity or
pseudonyms to allow the idea to percolate and disseminate before the writer
was burned at the stake (literally or figuratively).

It is this ability to disseminate ideas without direct connection to our
home addresses, our organization’s small offices, the location of our
children, spouses and parents that has allowed such an array of political,
religious and personal ideas to proliferate in the 20th and now 21st
 century.  The Internet is every man (and woman’s) printing press and the
ability of so many to help, support, cajole, implore, expand, challenge and
inspire has opened new worlds, new ideas and new opportunities in every
region of the world that the Internet hits – which is every region of the
world.

***III****.       Privacy and Speech Protections Must be Built Into a
Streamlined, Minimized Set of Whois/Directory Data Upfront – Because
Persecuted People have a Very Hard Time Seeking Remedies After-the-Fact.*

It is absolutely critical that the entire system of the Whois/Directory
Services system be designed upfront – not for law enforcement but for
Registrants!  The privacy and protection of Registrants, the customers and
huge base of the ICANN pyramid and system, must be of paramount and primary
importance to the EWG work.

*Registrants are not “guilty until proven innocent,” *and the unbounded
uses to which Registrants have put domain names has changed the face of the
world, the leadership of countries, the actions of militaries and expanded
the freedoms of millions.

We do not see within the EWG work the deep understanding and appreciation
of the Internet as the greatest form of communication ever created, and one
in which speakers are threatened by virtue of the very communication they
are sharing.  The Whois/Directory Service must protect, not expose, those
who use domain names for personal, political, religious, ethnic, racial,
robust and challenging speech, and protect (through lack of collection of
data) groups that include:

-         Synagogues located in areas in which Jews are persecuted
minorities that seek only to publish the times of their services, but where
the synagogues have been removed from the local maps as repeated targets of
bombings. (Why should collection, storage and publication of physical
address be the price for making information about their services available?)

-         For Mosques in US states with populations not pleased with local
Moslem populations and where the mosques are hidden from easy view of
public streets (same questions as above: why should their threat level and
fears be raised because they have shared the times of services or lessons
online?)

-         For organizations that foster ideas now, and in the future, that
challenge the standard thinking of tribal leaders, local City Councils,
regional governors and national leaders

-         For women’s groups around the world seeking to bring education
and employment to women where well-armed groups seek neither (and whose
leaders, old and young, we know are targets of attack)

-         For gay and lesbian organizations who seek to continue to fight
for their rights without identifying the physical location of their members
to face the physical violence that has haunted this movement for years

-         For small businesses and entrepreneurs that seek to challenge the
IBMs, Time Warners, Estee Lauders and Facebooks of the world with new
ideas, alternative technologies and who seek not to be eliminated in their
infancy by threats, intimidation or unfair competition (much easier when
you know the physical address of the entrepreneurial founder and where her
children live).

Domain names are the street signs of the Internet – the guide to where
content might be found – be it websites, listserves, emails and more. The
person who posts the street signs has never before had to autograph it with
her/his physical address, phone number, IP number, email and more.  That
should not be the case now.

*IV.       Our Hopes for the EWG*

* *

*We expect more from the EWG. We hope that you will rise above the
interests of individual companies and constituencies to give us a new
vision:*

-         *of less information*

-         *of information tailored for the needs of the infrastructure, not
the needs of the content police (public and private), and*

-         *of contactibility (the goal set by the Whois Review Team), not
reachablility and potential arrest and harassment for any type of message
and content online.*

* *

* Thank you!*

** **

**
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