[Rt4-whois] FW: Applicable laws [SEC=UNOFFICIAL]

Wed Aug 17 14:34:44 UTC 2011

But Peter,
Isn't the question of laws the very essence of what the GAC should be 
advising ICANN on?   The Affirmation of Commitments sets out a very 
clear guideline: and requires our (WRT) evaluation "subject to 
Applicable Laws." It is a key important definitional question; it is a 
key important legal one. We have addressed the first, but not the second 
in detail.

It is key that the ICANN community grow to understand the key laws that 
fit under Applicable Law. It's not just a "we've been contacted by law 
enforcement and need to change our Whois policy" (the "after-the-fact" 
discussion which is what the narrow current procedure requires) -- but a 
proactive, upfront approach that allows registrars and registries to 
operate within the bounds of their laws from the start and seems 
entirely consistent with the wording of the Affirmation of Commitments.

If GAC can't provide guidance on these key legal issues, who can?

Best,
Kathy

Peter wrote:
<<However, I don't see a compelling case for us to catalogueall 
potential applicable privacy or data protection lawsas a way to take 
this forward. In practice, I think this wouldbe very difficult, and 
arguably of limited use. Even if every GAC member provided details of 
every potentially applicable law, this would not cover every country, 
and would only cover contributing countries at a set point in time. 
Further, what would we do with this data? How would we reconcile the 
inevitabledifferences?
>
> Arguably, any conflict with national law (whether it relates to 
> 'sensitive' information, or other personal information) is intended to 
> be addressed by ICANN's consensus procedure. Theconsensus procedurewas 
> developed by the ICANN community to deal with specificconflicts with 
> national law. Whether and how it has been used may therefore provide 
> us some guidance about any actual conflicts and how they've been 
> handled. I see that Denise has undertaken to get back to us shortly 
> with an answer to this - thanks Denise! Theanswerto this mayprovide 
> useful insights into whether that particular procedure is effective or 
> needs modificationto deal with specific legal situations, and it could 
> also clarify the potential extent of existing legal conflicts.
>
> For the procedure to be effective, there is no need to catalogue 
> applicable laws in advance. Personally, I can't see any way to replace 
> this (or a similar) case-by-case procedurewith a more 
> prescriptiveuniversal mechanismbased on a survey of applicable 
> laws,nor any way to anticipate all potential legal conflicts in advance.
>
> There is then the additional question of whether we're only interested 
> in situations where there is a conflict with a national law?If so, 
> then we need to consider whether there needs to be any additional 
> protections beyond the existing procedure.
>
> On balance, my position is that we should considersome way to 
> acknowledge the privacy concernsof individuals, including those that 
> may not be addressed by ICANN's existing consensus procedures and 
> policies. The problem is how to do this without facilitating the 
> unregulated and widely abused privacy/proxy situation that we now have.
>
> This is what I tried to address in the draft gaps chapter. The 
> proposed recommendations at the end of that chapter are intended to 
> provide a framework for a balanced, open and accountable privacy 
> regime, while acknowledging that much of the detail (such as what data 
> could be 'protected' or 'limited', and standardised processes for 
> release of that data when needed) would rightly be developed through 
> existing ICANN community (and cross community) processes.
>
> I look forward to further discussion on this as we move forward.
>
> Cheers,
>
> Peter
>
> *From:*rt4-whois-bounces at icann.org 
> [mailto:rt4-whois-bounces at icann.org] *On Behalf Of *Kathy Kleiman
> *Sent:* Wednesday, 17 August 2011 2:30 PM
> *To:* rt4-whois at icann.org; lynn at goodsecurityconsulting.com
> *Subject:* Re: [Rt4-whois] Applicable laws
>
> 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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