[Rt4-whois] WHOIS Public Comments - for your review [SEC=UNCLASSIFIED]

Wed Mar 2 01:44:33 UTC 2011

Hello all,

Thanks Alice for circulating this document, which I think will form an excellent basis for the team's consultation with the community.

My comments are below.

As you'll see, they are primarily attempts to keep the definitions broad, inclusive and as plain-English as possible, recognising the broad range of stakeholders we will be targeting.

There are also some comments which I offer for discussion, as some of the proposed wording seems to me to imply a decision or inclination on the part of the review team on issues that have yet to be discussed in detail.

I would also like to discuss the survey, as I am unsure what this is intended to achieve.

I am happy to discuss any of these comments, and look forward to today's teleconference.

Kind regards,

Peter

Law enforcement

As noted in my earlier email, I have some reservations about the law enforcement definition that has been proposed. I think I understand what is intended and why some of the caveats have been included, but from my perspective I think a simpler formulation would achieve the same result with less ambiguity and sensitivity.

As such I propose the following, based on earlier definitions circulated by the sub-group:

"Law Enforcement shall be considered to be an organisation endorsed by a government and whose responsibilities include the maintenance, co-ordination, or enforcement of laws, multi-national treaty or other legal obligations."

My reasoning is below:

*       The exclusive list of 'department, division...' etc appears to be unnecessary, and risks excluding a legitimate law enforcement organisation. Reference to an organisation appears to achieve the same goal.

*       I do not understand what is meant by 'part and parcel'. In my view, reference to an organisation 'endorsed' by a government (noting that it must have specific and legitimate legal responsibilities) is sufficient and clearer.

*       I suggest that the reference to 'responsibilities' should be inclusive, as a legitimate law enforcement organisation may have other responsibilities (e.g. advising government t on the effectiveness of laws etc).

*       I understand the reference to 'regulations', but think that it should be broader (in Australia, regulation has a particular meaning and is only one type of 'legislative instrument', all of which have the force of law). I propose that we use 'other legal obligations' instead, as a broader formulation.

*       I do not think the references to boundaries are necessary, and raise sensitive geo-political issues beyond the remit of the review team.

Applicable laws

With regard to applicable laws, I think the definition does a good job of covering the field of possible laws that regulate personal data.

However, I note that the relevant sentence in the AoC refers to an obligation on ICANN to enforce its WHOIS policies (without caveats). Without specific advice from ICANN on what it considers the relevant laws to be, I propose a simple change to the proposed definition to make it inclusive rather than exclusive. In this way, if ICANN decides that the contract/commercial law of a country  is relevant to its ability to enforce a contract obligation, then we haven't inadvertently excluded this.

I also have concerns about the phrase 'internationally recognised legal norms', as agreement about what an internationally recognised legal norm is would appear to be beyond the scope of the review team. I have tried to simplify the definition accordingly:

"Includes any and all local and national laws that regulate and/or control the collection, use, access, and disclosure of personally identifiable information. It may also include other relevant legal obligations or treaties."

Consumer trust

I think the definition is good, noting that I agree with Bill's recently proposed edit.

However, I have some reservations about the preamble. If this is to be retained, I would suggest that it be generalised to avoid the impression that the review is focused on one particular jurisdiction, region or other type of grouping.

As such, I propose the following to replace the existing two paragraphs of preamble:

"There is no single universally agreed definition of 'consumer', and legal definitions in different jurisdictions vary widely. Some are narrow and limited to 'natural persons', while others are broader and include various types of organisations.

The WHOIS review team has been considering a broad interpretation of the term 'consumer', as this would allow a broad range of perspectives to be considered by the review team. This appears to be consistent with the intention of the drafters of the AoC."

With regard to 'B. What promotes consumer trust?', I would like to discuss further the phrase 'WHOIS data is provided accurately and with consent'. I initially read this as a simple recognition of the need to consider privacy issues. However, I now wonder whether this can be read as an unambiguous statement of a specific requirement (i.e. the need for consent). If so, I do not think we have reached a settled position on this issue yet. I'm not advocating a view either way on this, and I think the discussion forward will need to be detailed and nuanced, but I am concerned that the existing text could be seen to close off these discussions. I have a similar comment on question 5 in the survey, which refers to 'legitimate options available to hide the WHOIS data'. Again, I do not think the existing situation is so clear cut, and I personally have not got a settled position on this.

With regard to the survey as a whole, I have some comments on the wording of specific questions (particularly relating to clarity), but I wanted to raise a broader issue. In particular, I note that the current proposed survey is essentially closed and qualitative, and I wonder what exactly we are aiming to achieve from it?

From: rt4-whois-bounces at icann.org [mailto:rt4-whois-bounces at icann.org] On Behalf Of Alice Jansen
Sent: Tuesday, 1 March 2011 8:09 PM
To: rt4-whois at icann.org WHOIS
Subject: [Rt4-whois] WHOIS Public Comments - for your review

Dear Review Team Members,

Please find attached a public comment draft announcement for your review and consideration in anticipation of your conference call scheduled for tomorrow.

Kindly note that this was drafted and approved by Kathy and Emily.

Many thanks in advance,

Very best regards

Alice

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