Re: [gnso-acc-sgb] GAC's position on Whois

["Bertrand de La Chapelle" <bdelachapelle@xxxxxxxxx>]

Dear all,

On 5/12/07, Milton Mueller <mueller@xxxxxxx> wrote:
> Let me correct what seems to be an increasingly common set of errors on
> interpreting the GAC principles. [snip]
>
> Fourth, the GAC statement on Whois deliberately did _not_ say that
> access to the whois data as it now exists should be retained. It
> enumerated several "legitimate activities" that use the whois data. That
> was compromise wording deliberately chosen to avoid saying what
> Christopher Gibson is saying below. In other words, in the GAC
> principles it is the activities that are legitimate, but not necessarily
> the open access to them that we have now.



1) As a GAC member directly involved in the last discussions on the GAC's
WHOIS principles, I fully confirm Milton's comment above, which is of the
highest importance to understand the GAC's document.

The GAC's position is to recognize that there are legitimate activities that
have progressively used WHOIS data (because it happened to be available) and
at the same time that there is conflict between the present international
WHOIS regime for gTLDs and some national privacy laws (in particular within
the european union).

It purposefully avoided to say that the use of WHOIS data for these
activities is "per se" legitimate and that WHOIS data should remain
accessible in the present form to allow them, precisely because of the legal
issues of compatibility with national laws.

As a matter of fact, this is the very problem we are all trying to solve :
how to support legitimate activities and make sure that the WHOIS services
protect privacy.

2) I can also confirm that ccTLDs are a different issue, as their management
is handled by more national frameworks. National privacy laws are therefore
usually taken into account.

3) As a side note : the - non-exhaustive - list of "legitimate activities"
in the GAC principles illustrate the different "purposes" I have refered to
in the conference calls. Maybe this could be kept in mind while defining the
"legitimate third parties". Maybe we structure our work more around
legitimate needs, and try to define the corresponding legitimate parties and
technical modalities of access to specific sets of whois data ?

And we must also be aware that WHOIS is not the only tool available. Maybe
other additional procedures could be chartered separately.

4) Finally, as a general comment, the WHOIS  regime for gTLDs is a template
issue for a recurring problem in terms of "international public policy
related to the Internet" : what principles, norms, rules and decision-making
procedures can be established to allow both a sufficiently unified global
regime and the respect of heterogeneous national legislations.

It is also neither surprising nor bad that within each country, LEAs and
Privacy authorities have different viewpoints. The purpose of public policy
is not to make one win against the other but precisely to see how both
legitimate concerns can be combined and conciliated in the best public
interest balance

Hope the clarification helps us move forward.

Best

Bertrand

--
____________________
Bertrand de La Chapelle
Délégué Spécial pour la Société de l'Information / Special Envoy for the
Information Society
Ministère des Affaires Etrangères / French Ministry of Foreign Affairs
Tel : +33 (0)6 11 88 33 32

"Le plus beau métier des hommes, c'est d'unir les hommes" Antoine de Saint
Exupéry
("there is no better mission for humans than uniting humans")