Re: [gnso-acc-sgb] Re: RCMP summary of procedures

["Carole Bird" <Carole.Bird@xxxxxxxxxxxxxx>]

Hi Milton, 

I think it's a question of perspective.

I see that a country's laws should be the defining standard ( and by this I 
mean both the crimnal laws,etc as well as the privacy laws) and think that a 
tiered access which would allow a country to select access to the level they 
are permitted to have by law.  This to me is the middle ground.   

Carole

>>> "Milton Mueller" <mueller@xxxxxxx> 05/22/07 11:20 PM >>>
>>> "Carole Bird" <Carole.Bird@xxxxxxxxxxxxxx> 05/22/07 6:37 PM >>>
>That's actually the opposite of what I would recommend.  It's a given 
>that ICANN's policy cannot supercede a country's legislation.  
>That is say that if ICANN allows for more information to be provided 
>than a country's law allows, then the law is the defining standard.  

That is obviously _not_ true! If ICANN allows for more information to be
provided 
than a country's law allows, the Whois data is available regardless of
the national law. ICANN is the defining standard, not the law. As is the
case now. 

>If ICANN looks to the strictest laws and imposes this on all countries 
>then ICANN is determining that privacy standards should exceed that 
>which a country has determined it requires.

But if ICANN looks to the weakest laws and imposes this on all
countries, it is doing exactly the same thing. 

The difference is that it is possible for countries to move from strong
protection to weak protection on a national basis -- but movement in the
opposite direction is NOT possible on a national basis. So your argument
is clearly wrong. 

Proof: If ICANN's whois policies are designed with the strictest laws in
mind, then it is easy for countries with looser regulations to define
tiered access mechanisms that permit LEAs -- and even private parties --
to gain access to the data when the suspect registrant, the registry or
the registrar is in their jurisdiction. 

But If ICANN's whois policies give open access, then the data is "out
there" by default and there is no way to shield it on the basis of laws
based on territorial jurisdiction. 

This is an undeniable fact.