[Rt4-whois] Applicable laws

[Kathy Kleiman]

Dear Lynn and All,
I wanted to say how much I appreciate Lynn posting the key regional data 
protection frameworks to the group. I think they are very important, and 
she and I have discussed the need for us to look at them more closely in 
relation to the Whois data. I hope we can do this soon!

Regarding sensitive vs private data, I wanted to add my views as an 
attorney who specializes in the area of data protection and privacy 
since starting my telecommunications practice in 1993. While sensitive 
data may focus on the areas of financial, birth, religion, health, and 
let's add political affiliation and sexual orientation, that's not where 
the story ends.

Data protection and privacy laws certainly consider home address, home 
phone number, and now cell phone data as "private" or "personal data." 
Certainly telecommunications laws in the US, as one example, regularly 
protect the right of a person to "opt-out" of sharing their home address 
or home phone number in a public directory as a matter of personal 
privacy.  In fact, opt-out in directories was chosen by a majority of 
Californians when last I researched it (and the state protects privacy 
as part of its state constitution) because home addresses and home phone 
numbers are considered very personal information, and worthy of protection.

These are the very elements that have been such an issue of controversy 
within the ICANN arena. Over the last decade, as part of the history of 
Whois within ICANN, at least four Data Protection Commissioners and 
their senior staffs have warned ICANN about the problems of this data, 
and its data protection implications. They are very concerned with the 
elements now collected and published in the Whois. I will gather their 
letters to ICANN and share them, as well as notes of the speeches they 
have given. I would like to request that we ask ICANN Staff to work with 
us on this important matter as well.

Ultimately, I do not think this is a matter for us to decide on (which 
may relieve everyone greatly). As many of you know, I have been thinking 
about this issue a great deal. I will be submitting a recommendation to 
our Team asking that GAC provide ICANN with clear information about 
relevant applicable laws, including data protection laws, and their 
guidance, based on these laws, as to the elements of the Whois now 
published. I'll distribute this before our meeting tomorrow.

All the best,
Kathy

Since data privacy is an area of specialization for me, I would like to 
offer a couple of
> comments on the dialogue about privacy laws.
>
> Although WHOIS data contains personal data, it does not have any data 
> elements that are
> considered to be "sensitive" in nature.  The focus and priority of 
> data protection authorities throughout the world is on protection of 
> sensitive data such as financial account details, date of birth, 
> religious affiliations, medical conditions, etc.
>
> For global, multi-national organizations who need to develop and 
> maintain policies regarding the collection and use of personal data, 
> there are multi-lateral privacy frameworks and principles that have 
> been accepted and are well established including:
>
> 1) OECD Guidelines on the Protection of Privacy and Transborder Flows
> 2) UN Guidelines Concerning Computerized Personal Data Files
> 3) EU Directive 95/46/EC on the Protection of Individuals with Regard 
> to the Processing of Personsal Data and on the Free Movement of Such Data
> 4) APEC Privacy Framework
>
> Since ICANN is headquartered in the State of California and the United 
> States, I would note that California has an Office of Privacy 
> Protection.  At the national level, the U.S. Federal Trade Commission 
> has been accepted as the equivalent of a Data Protection Authority.
>
> Hope these brief comments are helpful.
> Lynn
>
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