On 4/11/07, Wendy Seltzer <wendy@seltzer.com> wrote:

Re-titled so that others may find this message in overflowing mailboxes:

The GNSO is chartering another working group on WHOIS and the privacy
issues implicated by its publicly available database of domain name
registrants' identifying information (name, address, email, and
telephone number).  The previous working group proposed permitting
registrants to replace this personal information with an "Operational
Point of Contact," who could accept notices and pass them along to the
registrant. The new working group is tasked with determining operational
details of that plan, among other things.

The working group is open to anyone, and since it is chartered to work
by consensus rather than vote, individuals may actually have meaningful
opportunity to shape the discussion here.  Please, join us!

More info at
<http://gnso.icann.org/mailing-lists/archives/council/msg03357.html > and
pasted below.

Please email Maria Farrell (maria.farrell at icann.org) or the GNSO
Secretariat (GNSO.SECRETARIAT[at]GNSO.ICANN.ORG) if you would like to
join the working group.

--Wendy

As per the GNSO resolution in Lisbon, a WHOIS Working
Group is being formed with a 120-day timeline.  All
may participate.

The Charter for the WHOIS Working
Group may be found here:
http://gnso.icann.org/mailing-lists/archives/council/msg03357.html

1       Introduction
The GNSO Council voted on 28 March, 2007 to create a Whois Working Group
with a broad, balanced and representative membership to take the output
of the WHOIS task force and carry out further work to address concerns
raised by the community and seek to reach greater consensus around
improvements to the WHOIS service that achieve a balance between
providing contact information adequate to facilitate timely resolution
of any problems that arise in connection with the Register Name, and the
need to take reasonable precautions to protect the data about any
identified or identifiable natural person from loss, misuse,
unauthorized access or disclosure, alteration, or destruction.

2       Background
Whois
ICANN's agreements with gTLD registrars and gTLD registries require them
to provide  data concerning active Registered Names via three
mechanisms: port-43 WHOIS, an interactive web page (often called WHOIS
service), and third-party bulk access. The Registrar Accreditation
Agreement (RAA) spells out which data is collected and which data is
made available.   The data includes contact information of natural
persons that includes names, postal addresses, email addresses, fax and
voice telephone numbers.

Whois Policy Development Process (PDP)
The GNSO is approaching the end of a PDP on Whois that should fulfill
terms of reference agreed in June 2005. The terms of reference of the
PDP (http://gnso.icann.org/policies/terms-of-reference.html ) are to make
policy recommendations to the Board on:
1.The purpose of the Whois service
2.The purpose of the Whois contacts (ie Registered Name Holder,
technical contact, and administrative contact) and the purpose for which
the data is collected.
3.Which data should be available for public access, and determine how to
access data that is not available for public access.
4.How to improve the process for notifying a registrar of inaccurate
data, and how to improve the process for correcting inaccurate data.
5.How to deal with any conflicts between the requirements of ICANN
agreements, and local or national privacy laws

Regarding term of reference #5, a Policy on conflicts between Whois
requirements and local or national privacy laws was developed by the
GNSO and approved by the Board on 10 May 2006.   A draft Procedure for
Handling Whois Conflicts with Privacy Law has been published on the
ICANN website at
(http://gnso.icann.org/issues/whois-privacy/whois_national_laws_procedure.htm).
The Final Task Force Report on Whois Services was submitted to the GNSO
Council on 12 March, 2007. The Task Force Report and Staff Discussion
Points on Potential Implementation Issues are available at
http://icann.org/announcements/announcement-16mar07.htm .    The GNSO
Council met to consider the WHOIS task force report on Saturday 25 March
2007, and also met with the Government Advisory Committee.   Various
concerns were raised regarding some of the recommendations in the
report, and subsequently the GNSO Council met on Wednesday 28 March and
decided to form a working group to attempt to resolve some of the issues
raised.

3       Objective
The objective of the WG is to examine the issues raised with respect to
the policy recommendations of the task force and make recommendations
concerning how those policies recommendations may be improved to address
these issues.

4       Work Plan
4a      Define the roles, responsibilities, and requirements of the contacts
available for unrestricted public query-based access, and what happens
if the responsibilities are not fulfilled.

4b.     Determine how third parties may access registration data that is no
longer
available for unrestricted public query-based access for legitimate
activities.

The GAC Policy Principles on gTLD Whois Services (dated 28 March 07)
sets out a list of legitimate (subject to applicable national law)
activities, including:

1.      Supporting the security and stability of the Internet by providing
contact points for network operators and administrators, including ISPs,
and certified computer incident response teams;

2.      Allowing users to determine the availability of domain names;

3.      Assisting law enforcement authorities in investigations, in enforcing
national and international laws, including, for example, countering
terrorism-related criminal offences and in supporting international
cooperation procedures. In some countries, specialized non governmental
entities may be involved in this work;

4.      Assisting in combating against abusive uses of Information and
Communication Technologies (ICTs), such as illegal and other acts
motivated by racism, racial discrimination, xenophobia, and related
intolerance, hatred, violence, all forms of child abuse, including
paedophilia and child pornography, and trafficking in, and exploitation
of, human beings.

5.      Facilitating enquiries and subsequent steps to conduct trademark
clearances and to help counter intellectual property infringement,
misuse and theft in accordance with applicable national laws and
international treaties;

6.      Contributing to user confidence in the Internet as a reliable and
efficient means of information and communication and as an important
tool for promoting digital inclusion, e-commerce and other legitimate
uses by helping users identify persons or entities responsible for
content and services online; and

7.      Assisting businesses, other organizations and users in combating
fraud, complying with relevant laws, and safeguarding the interests of
the public.

4c      Determine whether and how a distinction could be made between the
registration contact information published based on the nature of the
registered name holder (for example, legal vs. natural persons) or its
use of the domain name (for example, commercial versus non-commercial use)..

The membership of this WG extends to the following:

• Nominating Committee appointed GNSO councilors
• GNSO constituency members

In addition, observers and liaisons may join the
working group on the following basis:

Observers shall not be members of or entitled to vote
on the working group, but otherwise shall be entitled
to participate on equal footing with members of the
working group. In particular observers will be able
to join the mailing list, and attend teleconferences
or physical meetings.

Observers must provide their real name, organization
(if associated with an organization) and contact
details to the GNSO secretariat, and the GNSO
secretariat will verify at least their email address
and phone contact information. Observers will also be
requested to provide a public statement of interest,
as for working group members.

The email address of the GNSO Secretariat is
GNSO.SECRETARIAT[at]GNSO.ICANN.ORG

--
Wendy Seltzer -- wendy@seltzer.org
Visiting Assistant Professor of Law, Brooklyn Law School
Fellow, Berkman Center for Internet & Society
http://cyber.law.harvard.edu/seltzer.html
http://www.chillingeffects.org/

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