[Rt4-whois] Summary of public comments - Law Enforcement

[Lutz Donnerhacke]

On Mon, May 16, 2011 at 11:33:25AM +0100, LEMON, Sharon wrote:
> I have reviewed the comments in relation to law enforcement.

Thank you.

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Reading through the messages (http://forum.icann.org/lists/whois-rt/index.html)
I found the following comments:

> ALAC
: We endorse a formal definition of the term “law enforcement”’ and the term
: "legitimate needs of law enforcement."

> Business Constituency
: The BC accepts the definitions provided by the WRT for the terms Law
: Enforcement ...

> European Communities Trademark Association + Marques
: This definition is very broadly drafted. Is it intended that private
: parties interested in enforcing civil law remedies should fall within such
: a definition? If it is intended to refer to law enforcement in the sense
: of public agencies, such as Police forces, then greater care needs to be
: taken in the drafting. Consideration needs to be given to the range of
: legitimate legal proceedings, whether criminal, civil or administrative,
: for which access to WHOIS data, or extended WHOIS data, should be
: available.

> Intellectual Property Constituency
: The Review Team appears to read this phrase as limited to governmental
: enforcement agencies. We do not believe there is any evidence that the
: drafters of the AOC intended this reading. Rather, in assessing whether
: the implementation of Whois policy “meets the legitimate needs of law
: enforcement,” the Review Team should focus on whether this implementation
: meets needs that are legitimate for the enforcement of laws. Many laws
: depend for their enforcement upon the efforts of private parties,
: including, to a great extent, laws protecting trademark and copyright.
: Certainly reliable access to accurate Whois data plays a significant role
: in advancing the legitimate needs of enforcement of these laws.

> Volodya
: The term LEA (or "Law Enforcement" as it's termed) is defined without
: making the scope clear. As this conglamaration of groups is being somehow
: placed in the separate category than the "regular humans" it is important
: to know if we are talking about traffic wardens or NSA here. In addition
: to that the term government needs to be defined very carefully, several
: micronations exist in today's world, and they do have their governments,
: can they create agencies which will be placed in this category?

> Guilmette
: Certainly, that can be inferred from the mere fact that one of the
: questions that has been put to the community by the review team is one
: concerning the proper defintion of "law enforcement". Such a definition
: can only, and will only be useful if it has been decided (pre-decided?)
: that the domain name WHOIS service will have (or does have) some special
: and particular intended uses which are unique to "law enforcement".
:
: I suppose that by raising such questions as "What is law enforcement'?"
: outside observers such as myself might conclude that the WRT is in fact
: wending its way, however circuitously, towards a kind of a formal charter
: for domain name WHOIS service, but my simple suggestion would be to for-
: mally and explicitly assert and acknowledge that the development of a
: formal charter for domain name WHOIS service is in fact a goal and in-
: tended work product of the WRT.  I would argue that it is only within the
: framework of exactly such a formal goal do questions such as "What is law
: enforcement?" even make any sense.  The definition, even if one can be
: agreed, is utterly superfluous in the absence of context.
:
: I have no opinion of the best or most proper definition of the term `law
: enforcement'' until I am presented with at least a draft of the
: over-arching document into which said definition is intended to fit. (And
: if that over-arching document asserts that henceforth only `law
: enforcement'' shall be granted access to certain types of WHOIS
: information, then everyone may be assured that any definition of `law
: enforcement'' that _I_ would likely espouse would most assuredly be
: drafted so broadly as to include myself.)


In the finalized document http://forum.icann.org/lists/whois-rt/pdfZCv8tpNnFc.pdf
there is an additional comments (not occuring in the mailing list archive):

> Coalition against Unsolicited Commercial email
: The definition does not distinguish between sworn law enforcement
: officials and other entities with the mentioned obligations. Law
: enforcement officers should be narrowly defined as individuals: 1) who
: have been sworn or commissioned as a law enforcement officer by a
: government agency of competent authority; 2) who are charged with
: upholding the general criminal laws of an applicable jurisdiction,
: including having power to arrest; 3) typically have received specialized
: peace officer training (see submission for examples); 4) who normally
: receive tangible official signs of their role such as police uniform or
: official credentials. Adjusting this definition does not mean to exclude
: non‐sworn officials from the scope, they just need another label. It
: should also be considered whether law enforcement should include national
: intelligence services and national/multi‐national military services

Comments from the following parties did not refer to Law Enforcement
definition.
> Lexinta
> Registrar Stakeholder Group

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Please let me first clarify my understanding of the Law Enforcement definition:

  My proposal is narrow "A law enforcement agency is an government agency
  responsible for the enforcement of the laws, which is subject to judicial
  or open civil overview." (Extracted from Wikipedia, added "civil overview"
  to prohibit secrect and military services)
  http://mm.icann.org/pipermail/rt4-whois/Week-of-Mon-20110131/000537.html

  The current definition is "Law Enforcement shall be considered to be an
  entity authorized by a government and whose responsibilities include the
  maintenance, co-ordination, or enforcement of laws, multi-national treaty
  or government-imposed legal obligations."
  https://community.icann.org/display/whoisreview/A+-+Law+enforcement

  The current proposal for the definition includes "maintain, co-ordinate"
  in addition to "enforce", so extending law enforcement to law making
  bodies as well as regulatory authorites.
    
  The current proposal for the definition replaced "government agency" by
  "entity authorized by a government", so extending law enforcement to any
  kind of commercial organisation which is in charge of an government
  contract regarding any lawful acitivity.
    
  The current proposal of the definition includes "multi-national treaty or
  government-imposed legal obligations" in addition to law, so extending the
  law enforcement to any kind of intellectual propererty and contract law.
  This allows any commercial body to insist on the same rights as classical
  law enforcement.

Please do not consider this as a work group position.
It's just _my_ understanding.

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My summary on those comments:

: ALAC insists on a "formal definition". From first hand knowledge, I have
: to add that this statement means to have a definition (however it will be)
: to rely on for further policy agreements. It states, that ALAC awaits a
: definition with can be widly accepted within ICANN.

I'd accept the ALAC comment for us. We do provide such a definition.

: BC simply says, that they have nothing to do with LAE and therefore ignore
: the topic.

I'd ignore the BC comment for us.

: ECTA and Marques wish to have a narrower definition. They do not feel well
: with including the private parties. Furthermore they insist on a definition
: of "legitimate use", hence use cases.

I'd accept the ECTA/Marques comment for us. We should narrow the definition.

: IPC wish to have a wider definition. They do not feel will with the
: governmental relationship requirement and like to include everybody who
: deals with law enforcment on any basis.

I'd reject the IPC comment for us. Extenting the definition to everybody
will not help.

: Mr. Volodya wishs to understand definition by seeing concrete examples. He
: points out the corner cases of the definition.

I'd accept the Volodya comment for us. We should provide a lot of examples
which case should be covered by the definition and which not.

: Mr. Guilmette insits of creating the use cases for the definition first.
: He clearly remarks that there is no need for any law enforcement
: definition at the moment, simply because law enforcement is not mentioned
: in the policies.

I'd reject the Guilmette comment for us. We should not wait for new policies
which refer to law enforcement before considering the AoC requirments.

: CAUCE wish to have a special definition for the people doing the law
: enforcement and proposes a definition for governmental agents of this
: type.

I'd reject the CAUCE comment for us. We should not diffenciate the internal
structures of law enforcemnt.

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HTH