[Privsec] [Fwd: [Fwd: [NCUC-DISCUSS] Timely - Please sign on to EPIC letter!]]

Robin Gross robin at ipjustice.org
Mon Oct 29 21:04:55 GMT 2007

Dear Privacy Activists:

We need your help in the next 2 days to comment to ICANN and ask for 
privacy protections in the WHOIS database.   Or please sign-on to EPIC's 
letter on the issue (see below).  The IP constituency is working hard to 
undermine efforts to protect privacy with their own letters to ICANN. 

We need the privacy community to weigh-in at ICANN too.

Thank you,

-------- Original Message --------
Subject: 	[NCUC-DISCUSS] Timely - Please sign on to EPIC letter!
Date: 	Sat, 27 Oct 2007 10:52:18 EDT
From: 	KathrynKL at AOL.COM
Reply-To: 	KathrynKL at AOL.COM

Friends in NCUC, we need your help. GNSO Council is now completely 
OVERWHELMED with letters from the Intellectual Property (IP) 
Constituency.  After seven years of work, IP wants to send everything 
back to beginning -- no privacy, no plan, no direction.  We have come 
too far to do that.  We have spent too many years on Task Forces and 
Working Groups.  National laws all over the world gives us the right to 
privacy, and ICANN knows it.

Would you be willing to sign on to the Electronic Privacy Information 
Center's (EPIC's letter) below?  If so, please write to Marc Rotenberg 
at rotenberg at epic.org <mailto:rotenberg at epic.org> with your name and 



Kathy Kleiman (NCUC Whois Task Force member 2003-2006)

(Comments can be submitted to: <whois-comments-2007 at icann.org>
Comments may be viewed at:

October 25, 2007

Mr. Vint Cerf, Chairman

Mr. Paul Twomey, President & CEO

Internet Corporation for Assigned Names and Numbers

4676 Admiralty Way, Suite 330

Marina del Rey, CA 90292-6601


Dear Mr Twomey and Members of the ICANN Board,

The purpose of this letter is to express our support for changes to 
Whois services that would protect the privacy of individuals, 
specifically the removal of registrants’ contact information from the 
publicly accessible Whois database.^^1 
<aoldb://mail/write/template.htm#sdfootnote1sym> It is also to propose a 
sensible resolution to the long-running discussion over Whois that would 
establish a bit of “policy stability” and allow the various 
constituencies to move on to other work

EPIC has had long-standing involvement in the Whois issue. As a member 
of the Whois Privacy Steering Committee, EPIC assisted in the 
development of the Whois work program, and has been a member of the 
Non-Commercial Users Constituency for several years. EPIC has submitted 
extensive comments to ICANN on Whois, and has testified before the US 
Congress in support of new privacy safeguards for WHOIS as well as 
filing a brief in the US courts on the privacy implications of the WHOIS 
registry.^^2 <aoldb://mail/write/template.htm#sdfootnote2sym>

Both the Whois Task Force and the Whois Working Group agree that new 
mechanisms must be adopted to address an individual's right to privacy 
and the protection of his/her data.^^3 
<aoldb://mail/write/template.htm#sdfootnote3sym> Current ICANN Whois 
policy conflicts with national privacy laws, including the EU Data 
Protection Directive, which requires the establishment of a legal 
framework to ensure that when personal information is collected, it is 
used only for its intended purpose. As personal information in the 
directory is used for other purposes and ICANN's policy keeps the 
information public and anonymously accessible, the database could be 
found illegal according to many national privacy and data protection 
laws including the European Data Protection Directive, European data 
protection laws and legislation in Canada and Australia.^^4 

The Article 29 Working Party, an independent European advisory body on 
data protection and privacy, states that “in its current form the 
[Whois] database does not take account of the data protection and 
privacy rights of those identifiable persons who are named as the 
contacts for domain names and organizations.”^^5 
<aoldb://mail/write/template.htm#sdfootnote5sym> The conflict with 
national privacy law is real and cannot be dismissed. A sensible 
resolution of the Whois matter must take this into account.

In addition, country code Top Level Domains are moving to provide more 
privacy protection in accordance with national law. For example, 
regarding Australia's TLD, .au, the WHOIS policy of the .au Domain 
Administration Ltd (AUDA) states in section 4.2, "In order to comply 
with Australian privacy legislation, registrant telephone and facsimile 
numbers will not be disclosed. In the case of id.au domain names (for 
individual registrants, rather than corporate registrants), the 
registrant contact name and address details also will not be 
disclosed."^^6 <aoldb://mail/write/template.htm#sdfootnote6sym>

The Final Outcomes Report recently published by the Whois Working Group 
contains several key compromises and useful statements and represents 
significant progress on substantive Whois issues. The Whois Working 
Group found agreement in critical areas that advance the Whois 
discussion within ICANN and provide clear guidance to the ICANN Board.

In its report, the Whois Working Group accepted the Operational Point of 
Contact (OPoC) proposal as a starting point, and the best option to 
date. The OPoC proposal would replace publicly available registrant 
contact information with an intermediate contact responsible for 
relaying messages to the registrant. The Working Group agreed that there 
may be up to two OPoCs, and that an OPoC can be the Registrant, the 
Registrar, or any third party appointed by the Registrant. The 
Registrant is responsible for having a functional OPOC. The Working 
Party also agreed that the OPOC should have a consensual relationship to 
the Registrant with defined responsibilities. This would necessitate the 
creation of a new process, and changes to the Registrar Accreditation 
Agreement and Registrar-Registrant agreements to reflect this relationship.

The Board should support the agreed standard for disclosure of 
unpublished Whois personal data – reasonable evidence of actionable 
harm. But the Board should leave this term undefined, as it is now in 
the RAA for proxy services. This standard will allow the OPoC contact, 
registrars and registries to work within the framework of their national 
and local laws to provide access to this personal data.

OPoCs must be allowed to employ strategies and standards similar to 
those of the registrars and registries to ensure that the person 
receiving the protected personal Whois data is in fact a law enforcement 

The OPoC proposal does not impede reasonable law or intellectual 
property enforcement efforts. In fact, effective implementation of the 
OPoC proposal would benefit all stakeholders by improving the accuracy 
of the information in the database. Because personal data will be kept 
private, individuals will provide more accurate data. As a result, the 
Whois database will be more useful and more reliable.

The OPoC proposal is not the ideal privacy solution. EPIC, as well as 
groups such as the Non-Commercial Users Constituency, recommended a 
distinction between commercial and non-commercial domains in order to 
protect the privacy of registrants of domain names used for religious 
purposes, political speech, organizational speech, and other forms of 
non-commercial speech. EPIC has previously stated that the Whois 
database should not publicize any registrant information, including name 
and jurisdiction.

The Whois Working Group has proposed a workable framework. It is not a 
perfect framework. But it will help ensure that the WHOIS policy 
conforms with law and allow ICANN to move forward. If it is not possible 
to adopt this solution, then the only sensible approach would be to 
allow the current Whois terms to simply sunset. Resolution 3 would be 
the only real option.

The signatories to this letter are willing to assist in finishing off 
the implementation details of the OPoC proposal.


Marc Rotenberg

EPIC Executive Director

Allison Knight

Coordinator, Public Voice Project

1 <aoldb://mail/write/template.htm#sdfootnote1anc> EPIC’s comments on 
the ICANN Whois Task Force’s "Preliminary Task Force Report on Whois 
Services," January 12, 2007, available at 

2 <aoldb://mail/write/template.htm#sdfootnote2anc> [cite]

3 <aoldb://mail/write/template.htm#sdfootnote3anc> Final Report of the 
Whois Task Force, March 12, 2007, available at 
and Final Report of the Whois Working Group, August 20, 2007, available 
at <http://gnso.icann.org/drafts/icann-whois-wg-report-final-1-9.pdf>.

4 <aoldb://mail/write/template.htm#sdfootnote4anc> Privacy and Human 
Rights: An International Survey of Privacy Laws and Developments (EPIC 
and Privacy International 2006), available at <http://www.epic.org/phr06>.

5 <aoldb://mail/write/template.htm#sdfootnote5anc> Letter from Article 
29^ Working Party to Vinton Cerf, March 12, 2007, available at 

6 <aoldb://mail/write/template.htm#sdfootnote6anc> For additional 
country code Top Level Domain policy examples, see EPIC Testimony Before 
House Subcommittee, Financial Institutions and Consumer Credit, 
Committee on Financial Services “ICANN and the WHOIS Database: Providing 
Access to Protect Consumers from Phishing,” available at 

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