Re: [council] Request to fellow Councilors for input and suggestions to WHOIS Workshop Planning Committee

[Thomas Keller <tom@schlund.de>]

well, I'm not advocating that governments always do the right thing
even if the actual intent is good and I'm sure very cautious of 
governmental regulations especially if the free market is subject
of this regulation. It might ,in regard of governments and laws, be 
worth to spend some time to explore the difference between the following
two groups one being the whois data users and the other being the
whois data provider group.

Whois data users

This group constist out of a wide variety of different interests
which starts with the private person who wants to buy a domainname
and needs to find out who owns it and ends with the retrieval
of whois data for the purpose of law enforcement. Virtually
every person who can use the whois is part of this group without
ever having to apply for this service or identify himself. There 
are no contracts in place which prohibit abuse nor can ever be proofen 
or must be proofen what the data has been used for.

Whois data provider

There are only two typs of persons/companies which can be counted into
this group. The actual domain registrant who has to provide his contact
data to register a domainname and the registrars/registries which have
to provide the whois service.

Both typs of the whois data providers are persons and companies which are 
subject to the local jurisdiction of the country they are living and therefore 
have to abide to local law. One good example of this is the Argentina law for 
the registration of databases Tony talked about. Whether such a regulation makes 
sense or not is not the point, fact is that it is in place and that i.e. a 
registrar in Argentina would have to do so or go out of business.

The whois data users on the other hand are somewhat anonymous and are
therefore not subject to any special law.

What strikes me strange is that the latter group which has no obligations in regard 
to whois what so ever might demand certain action from a whois data provider who
has to breach his local law to satisfy this demand.

So to answer Milton who stated:

... Europe and the rest of the world will be dragged into a globalized 
regime applied to the Internet where their national laws have no application ...

There is applicable law on the whois data provider side and we have to
think about it as we move on or one of ICANNs core values 

http://www.icann.org/general/bylaws.htm#I

"the introducing and promoting competition in the registration of domain names where 
practicable and beneficial in the public interest"

will fail because of lack of international participation.

Best,

tom


Am 10.06.2003 schrieb Cade,Marilyn S - LGCRP:
> Tom, thanks for your comments, and Tony, for yours.
> 
> As someone who's full time job is focused on Internet and e-commerce issues
> I confess to having extreme caution about global regimes, as we know them today.
> 
> Policy makers, regardless of where they are, are challenged by needing to know more of the technology
> and its capabilities. This is not a criticism of governments, since of course, it is also the private sector challenge, as we seek to keep pace with the rapid changes of technology. 
> 
> The definition of what is a database does indeed vary from country to country.  Perhaps the take away of this is that this is also a topic worth discussion in the Workshops.  
> 
> 
> -----Original Message-----
> From: Antonio Harris [mailto:harris@cabase.org.ar]
> Sent: Tuesday, June 10, 2003 12:45 PM
> To: Thomas Keller; Cade,Marilyn S - LGCRP; council@dnso.org
> Cc: 'Mike Roberts (E-mail)'; 'Dan Halloran (E-mail)'; sabine@denic.de;
> tom@schlund.de
> Subject: Re: [council] Request to fellow Councilors for input and
> suggestions to WHOIS Workshop Planning Committee
> 
> 
> These are interesting comments!
> 
> Perhaps I can share a strange development
> of affairs with you. Argentina has a personal
> data privacy protection law in place. It has
> now created a Directorate where databases
> containing personal data must be duly registered.
> 
> The authorities recently visited our Association and
> informed us that the obligation to register databases
> is not confined to those databases that list personal
> data for third parties to access, e.g. such as credit
> bureau services, but it applies to each and every
> database containing personal data - such is the
> case of payroll, customer, supplier, employee, etc.
> databases collected in any format, even non-digital.
> A yearly fee of 30 dollars is applicable to each
> registration, and each database is a separate
> registration, even if a company has a hundred
> databases. Additionally, obligations to ensure
> databases are not hacked into must be complied
> with, and also any new database that evolves from
> the combination of existing (registered) databases
> will require permission from the Directorate before
> it is produced.
> 
> This is an example of how a well intentioned law can
> evolve into a nightmare if officials become "creative"
> about it.
> 
> To get to Milton's comment:
> "Europe and the rest of the world will be
> dragged into a globalized regime applied to the Internet
> where their national laws have no application"
> 
> Perhaps this would not be so bad after all...
> 
> Tony Harris
> 
> ----- Original Message -----
> From: "Thomas Keller" <tom@schlund.de>
> To: "'Cade,Marilyn S - LGCRP'" <mcade@att.com>; <council@dnso.org>
> Cc: "'Mike Roberts (E-mail)'" <mmr@darwin.ptvy.ca.us>; "'Dan Halloran
> (E-mail)'" <halloran@icann.org>; <sabine@denic.de>; <tom@schlund.de>
> Sent: Tuesday, June 10, 2003 12:51 PM
> Subject: AW: [council] Request to fellow Councilors for input and
> suggestions to WHOIS Workshop Planning Committee
> 
> 
> Dear Marilyn,
> 
> thank you and the planning comittee for giving us the possibility of
> input please find mine below.
> 
> 
> Having followed the privately organised phone calls on whois as well as
> reading the
> concurrent mailing list I heard a lot of opinions why this or that user
> group MUST
> have full access to whois data or that certain user groups MUST have
> special
> protection in form of anonymous whois output. There seems to be no limit
> for the
> diversity of views but if read careful one will discover that all made
> proposals no
> matter whether it is from the FTC and talks about the necessity of law
> enforcement
> to protect end users or it is from the PTO saying that law enforcement
> conducted privately
> by ip owners is imperative because of the latency of the legal system or
> to complete the
> picture the demand of groups like EPIC which advocate the protection of
> personal data in
> light of the right of freedom of speech are focused on ONE special
> market place in the world.
> 
> Apparently there is some fighting going on in one specific country about
> how and to
> what extend contact data, especially personalized contact data can/must
> be distributed
> and whois is the battlefield thought it could be every other database
> containing such
> data as well.
> 
> Ironically these questions and debates are not worth a minute thinking
> in other parts
> of the world because there are well established laws in place which very
> clearly identify who
> can do what under which circumstances. Unfortunately all this local laws
> are not
> necessarily in sync so that there are a whole lot of definitions and
> regulations which
> contradict each other on the same subject but are totally valid inside
> the particular
> countries. For more information on the differences have a look at the
> following URL:
> 
> http://www.whitecase.com/pr_wc_privacy_law_survey.html
> 
> To be more specific a good example for the diversity of the
> implementation of data protection restrictions are the whois services of
> the ccTLDs:
> 
> .com.au
> 
> displays the registrant name and his email address to the
> public.
> 
> .de
> displays the registrants name and address but not the email
> address and telefonnumber to the public.
> 
> .co.uk
> 
> displays just the registrants name to the public if the
> registrants
> is a non trading individual.
> 
> This very clearly documents that cultural diversity has led to different
> solutions for the same problem always depending on the specific
> background, traditions and history of each country.
> 
> To make things short I would like to suggest that the WHOIS Workshop
> committee gives some time for consiteration of the question whether
> there is a need for a one fits all whois solution which reflects all
> international data protection laws and traditions and is not in conflict
> with paragraph 2.3.3 and  3.7.2 of the ICANN RAA.
> 
> http://www.icann.org/registrars/ra-agreement-17may01.htm#3
> 
> 2.3.3 not apply standards, policies, procedures or practices
> arbitrarily,
> unjustifiably, or inequitably and not single out Registrar for disparate
> 
> treatment unless justified by substantial and reasonable cause.
> 
> 3.7.2 Registrar shall abide by applicable laws and governmental
> regulations.
> 
> or whether the world might be better of with a whois approach on a basis
> of
> local jurisdiction.
> 
> Best,
> 
> tom
> 
> --
> 
> Thomas Keller
> 
> Domain Services
> Schlund + Partner AG
> Brauerstrasse 48               Tel  +49-721-91374-534
> 76135 Karlsruhe, Germany               Fax  +49-721-91374-215
> http://www.schlund.de                  tom@schlund.de
> 
> 
> 
> -----Ursprüngliche Nachricht-----
> Von: owner-council@dnso.org [mailto:owner-council@dnso.org] Im Auftrag
> von Cade,Marilyn S - LGCRP
> Gesendet: Montag, 9. Juni 2003 05:48
> An: council@dnso.org
> Cc: Mike Roberts (E-mail); Bruce Tonkin (E-mail); Dan Halloran (E-mail)
> Betreff: [council] Request to fellow Councilors for input and
> suggestions to WHOIS Workshop Planning Committee
> 
> 
> Dear fellow councilors
> 
> The WHOIS Workshop Planning committee, recently appointed by ICANN's
> President/CEO, (see below) held its first conf. call Saturday, to
> discuss planning for the Montreal workshops on WHOIS and related privacy
> and other issues, as requested by ICANN's President. The committee will
> host at least two more conference calls this week in order to plan the
> program for the two 1/2 day workshops now scheduled for Montreal's
> meeting. We began to outline the approach for the workshops on our
> initial call.
> 
> Although all on the Committee are acting in their individual capacity as
> appointees to the Planning Committee, the chair of the Program Committee
> and the chair of the Council have agreed that I might solicit input from
> fellow Councilors, and I welcome that opportunity to seek your input and
> suggestions.
> 
> Your input and suggestions on areas to be addressed, possible experts
> for presentations, and ideas about existing reports or other materials
> that you might suggest as background to be provided to support and
> inform the workshops would be most welcomed. To be most useful, I will
> need input by Thursday, June 12. Earlier suggestions will be helpful.
> 
> You may post to me at mcade@att.com, or you may share your
> recommendations/input with the full Council, if you prefer.
> 
> In addition to suggesting topics or issues to be addressed, if you
> suggest a speaker, please provide email and telephone contact
> information, as well as a sentence or two regarding the nature of the
> topic you recommend that speaker for.  I will be provide all
> contributions to the rest of the committee as inputs for their
> consideration.  And, should a speaker be accepted by the Committee, it
> will expedite contact to have contact details already available.
> 
> I apologize for the urgency of the request, but the Committee must move
> quickly to develop the workshops in order to issue invitations to
> speakers for the workshops.
> 
> Regards,
> 
> Marilyn Cade
> 
> 
> 
> 
> 
> 
> 
> 
> -----Original Message-----
> From: Bruce Tonkin [mailto:Bruce.Tonkin@melbourneit.com.au]
> Sent: Friday, June 06, 2003 4:09 AM
> To: council@dnso.org
> Subject: [council] ICANN Announces Whois Workshop Planning Committee for
> Montréal
> 
> 
> AS requested by the GNSO Council in its teleconference on 22 May 2003:
> 
> ICANN Announces Whois Workshop Planning Committee for Montréal
> http://www.icann.org/announcements/announcement-05jun03.htm
> 
> Marina del Rey, California USA (5 June 2003): ICANN President and CEO
> Paul Twomey today announced the appointment of a Workshop Planning
> Committee to help coordinate a workshop on Whois and related issues at
> ICANN's meeting later this month in Montréal, Canada. The President's
> Whois Workshop Committee includes the following recognized leaders in
> this subject:
> 
> Elana Broitman
> Marilyn Cade
> Steve Crocker
> Sabine Dolderer
> Robin Layton
> Michael Palage
> George Papapavlou
> Mike Roberts (Chair)
> Thomas Roessler
> The Whois workshop is intended to initiate a period of discussion within
> the ICANN community on Whois and related privacy and other issues. The
> workshop is being held in response to a request from the GNSO Council,
> and in cooperation with the GAC's work program. Current plans call for a
> two-part workshop, scheduled for the mornings of Tuesday, 24 June 2003,
> and Wednesday, 25 June 2003.
> 
> For additional details on the ICANN meetings in Montréal, Canada (22-26
> June 2003), please visit <http://www.icann.org/montreal/>.
> 
> The meetings will be hosted by the Canadian Internet Registration
> Authority (CIRA). CIRA has posted additional information regarding the
> area, the meeting, and local hotels at <http://www.icannmontreal.ca/>.
> 
> 
> 
> 
> 
> 

Gruss,

tom

(__)        
(OO)_____  
(oo)    /|\	A cow is not entirely full of
  | |--/ | *    milk some of it is hamburger!
  w w w  w