To: Bruce Tonkin, Chair of the GNSO Council From: Carlos A. Afonso, Chair, NCUC cc: Glen de Saint Géry, GNSO Secretariat Dear Bruce, Regarding Australia's contribution to GNSO on the Whois issues recently submitted by the GAC representative Ashley Cross, the NCUC would like that the statement below be conveyed to him as an official inquiry from NCUC and copied to GNSO Council, as well as to all GAC members. fraternal regards --c.a. Carlos A. Afonso Chair, NCUC ====== beginning of NCUC statement ===== NCUC statement on Australia's contribution to GNSO on the Whois issues (submitted to GNSO in April, 2006, by the GAC representative Ashley Cross) 1. We would like to recall the Australian national privacy principles (at http://www.privacy.gov.au/publications/npps01.html), which, under the heading "Use and disclosure", state: "An organisation must not use or disclose personal information about an individual for a purpose (the secondary purpose) other than the primary purpose of collection unless: "(f) the organisation has reason to suspect that unlawful activity has been, is being or may be engaged in, and uses or discloses the personal information as a necessary part of its investigation of the matter or in reporting its concerns to relevant persons or authorities; or (g) the use or disclosure is required or authorised by or under law; or (h) the organisation reasonably believes that the use or disclosure is reasonably necessary for one or more of the following by or on behalf of an enforcement body: (i) the prevention, detection, investigation, prosecution or punishment of criminal offences, breaches of a law imposing a penalty or sanction or breaches of a prescribed law; (ii) the enforcement of laws relating to the confiscation of the proceeds of crime; (iii) the protection of the public revenue; (iv) the prevention, detection, investigation or remedying of seriously improper conduct or prescribed conduct; (v) the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of the orders of a court or tribunal." The Australian national privacy principles also state: "If an organisation uses or discloses personal information under paragraph (h), it must make a written note of the use or disclosure." So, at least in Australia, law enforcement activities are already covered under the privacy laws. What is not envisaged in the privacy laws is that the method to provide data to law enforcement should be via public publication. There is literally no practical way to restrict the subsequent "use" of data once it is published in the public. In light of the above, is the Australia GAC representative contradicting Australia's national policy or suggesting that its laws be changed? 2. Why is the Australia GAC representative supporting Formulation 2, when ".au" has a Whois policy and purpose that corresponds more closely to Formulation 1 than Formulation 2? 3. If GAC itself has not come to a unified position on Formulation 1 versus Formulation 2 -- we are aware of governments who support Formulation 1 or who take a more pro-privacy position --, what relevance does the position of the Australia GAC representative have? April 23rd, 2006 ==== end of NCUC statement ===== -- Carlos A. Afonso diretor de planejamento Rits -- http://www.rits.org.br ******************************************** * Sacix -- distribuição Debian CDD Linux * * orientada a projetos de inclusão digital * * com software livre e de código aberto, * * mantida pela Rits em colaboração com o * * Coletivo Digital. * * Saiba mais: http://www.sacix.org.br * ********************************************