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[gnso-dow123] NCUC Contacts Statement

  • To: gnso-dow123@xxxxxxxxxxxxxx
  • Subject: [gnso-dow123] NCUC Contacts Statement
  • From: KathrynKL@xxxxxxx
  • Date: Sun, 9 Oct 2005 21:42:14 EDT

I am pleased to submit the NCUC Statement on WHOIS Contacts.   

Text below (with formatted file attached for the Joint Constituency 
Statement).
Regards, Kathy
------------------------------------------------------------------------------
-------------------------------------

Statement of the Noncommercial Users Constituency on WHOIS Contacts

Task 2 asks us to "(2) Define the purpose of the Registered Name Holder, 
technical, and administrative contacts, in the context of the purpose of WHOIS, 
and the purpose for which the data was collected. Use the relevant definitions 
from Exhibit C of the Transfers Task Force Report as a starting point 
(http://www.icann.org/gnso/transfers-tf/report-exhc-12feb03.htm). 

The NCUC believes that once we have selected a purpose for our
database, data protection laws require us to closely examine whether the 
information we collect meets the goals we have set out â and make adjustments 
accordingly. These comments discuss the Contact data currently collected for 
WHOIS 
and the personal nature of much of it.  They raise the question whether this 
data should be collected at all for WHOIS purposes.


I.  Data Protection Laws Require Limited Collection of 
    Personal Data   

In its 2003 Opinion, the Article 29 Data Protection Working Party of European 
Union Data Protection Commissions urged ICANN to closely examine the personal 
data it collects for WHOIS.  The Commissioners warned:  

âArticle 6c of the Directive imposes clear limitations concerning the 
collection and processing of personal data meaning that data should be relevant 
and 
not excessive for the specific purpose.  In that light it is essential to limit 
the amount of personal data to be collected and processed.â  

Opinion 2/2003 on the application of the data protection principles to the 
Whois directories
http://europa.eu.int/comm/justice_home/fsj/privacy/docs/wpdocs/2003/wp76_en.pd
f (emphasis added).  

The Data Protection Commissionersâ concern over collection of WHOIS data is 
grounded in the clear language of the EU Data Protection Directive and its 
Article 6  âPrinciples Relating to Data Qualityâ which clearly sets limits 
on the 
collection of personal data:  

âMember States shall provide that personal data must be:
(a) processed fairly and lawfully;
(b) collected for specified, explicit and legitimate purposes and not further 
 processed in a way incompatible with those purposes. ***
(c) adequate, relevant and not excessive in relation to the purposes for 
which they are collected and/or further processed;â

Directive 95/46/EC of the European Parliament and of the Council of 24 
October 1995 on the protection of individuals with regard to the processing of 
personal data and on the free movement of such data, 
http://europa.eu.int/comm/justice_home/fsj/privacy/law/index_en.htm.

    The Canadian Personal Information Protection and Electronics Document Act 
also sets limits on the collection of personal data:   

âThe purpose of this Part is to establish, in an era in which technology 
increasingly facilitates the circulation and exchange of information, rules to 
govern the collection, use and disclosure of personal information in a manner 
that recognizes the right of privacy of individuals with respect to their 
personal information and the need of organizations to collect, use or disclose 
personal information for purposes that a reasonable person would consider 
appropriate in the circumstances.â  

http://laws.justice.gc.ca/en/P-8.6/93196.html#rid-93228 [emphasis added].

    Similarly, Australiaâs Privacy Principles mandate: 
â1.1 An organisation must not collect personal information unless the 
information is necessary for one or more of its functions or activities.â

National Privacy Principles (Extracted from the Privacy Amendment (Private 
Sector) Act 2000), http://www.privacy.gov.au/publications/npps01.html.

Based on these legal requirements, the NCUC submits that the WHOIS Task Force 
must review the contact data currently collected, evaluate whether it is 
personal, and determine whether it should continue to be collected in keeping 
with 
the purpose of the WHOIS Database.  Over-collection of personal data does not 
serve ICANNâs mission nor does it help registrars comply with the many 
existing laws that protect registrant privacy worldwide.  

II. The Purpose of the WHOIS Database

In our Task 1 comments, NCUC submitted a clear definition of the purpose of 
the WHOIS database:

âThe purpose of the WHOIS is to provide to third parties an accurate and 
authoritative link between a domain name and a responsible party who can either 
act to resolve, or reliably pass information to those who can resolve, 
technical 
problems associated with or caused by the domain.â  Statement of the NCUC on 
WHOIS Purpose.

As discussed in our comments, this technical purpose is consistent with the 
original purpose of the WHOIS, as set out by Vint Cerf and others, and within 
the limited scope of ICANNâs mission.  

III.  Contact Data:  Definition?  Personal?  Fits Purpose of WHOIS?

The GNSO Council asked us to examine the definitions and purpose of the 
Technical Contact, Administrative Contact and Registered Name Holder.  We do so 
in 
light of the legal considerations set out above. 
 
    A.  Technical Contact

The Transfer Task Force defined technical contact as: 
âthe individual, role or organization that is responsible for the technical 
operations of the delegated zone. This contact likely maintains the domain name 
server(s) for the domain. The technical contact should be able to answer 
technical questions about the domain name, the delegated zone and work with 
technically oriented people in other zones to solve technical problems that 
affect 
the domain name and/or zone.â

The next step requires us to assess whether Technical Contact data is 
personal and needs to be treated with special care.  In our review with our 
Constituency, we found that occasionally Technical Contact Data is the personal 
data of 
an individual.  Increasingly, however, registrants entrust a technical party 
to manage their domain name and expertly handle any technical problems that 
arise â often an ISP, online service provider, Registrar or web host 
provider.   
Thus, for individuals and small organizations, we found that the technical 
contact field does not raise strong concerns regarding personal data.  

Further, in assessing whether collection of Technical Contact data fits 
within the purpose of ICANN and the WHOIS database, we found that it does.  The 
Technical Contact is the person designated to respond to exactly the set of 
technical problems and issues at the heart of the WHOIS purpose.  Accordingly, 
NCUC 
submits that Technical Contact data should be collected and maintained for 
the WHOIS database. 

B.  Administrative Contact

The Transfer Task Force defined administrative contact as:
âan individual, role or organization authorized to interact with the Registry 
or Registrar on behalf of the Domain Holder. The administrative contact 
should be able to answer non-technical questions about the domain name's 
registration and the Domain Holder.â
      
The next step requires us to assess whether Administrative Contact data is 
personal and needs to be treated with special care.  In our review, we found 
that the Administrative Contact data OFTEN includes personal data, especially 
for 
individuals and small organization leaders who must list their own names, 
home addresses, personal (and often unlisted) phone numbers and private email 
addresses for the Administrative Contact field.  

This type of personal data is exactly what the privacy laws of many regions 
and countries set out to protect.  Its collection invokes major privacy 
concerns for individuals and small organizations -- and draws the formal 
protection 
of data protection laws in many countries in which registrants live and 
registrars operate.  

Further, in assessing whether collection of Administrative Contact data fits 
within the purpose of ICANN and the WHOIS database, we found that it does not. 
 By the Transfer TF definition, the Admin is responsible for ânon-technical 
questionsâ which range as far as the imagination and generally are completely 
outside the scope of ICANN:  Is the domain name for sale?  Is the woman 
described on a website available for a date?  Can a stranger meet the child 
shown in 
a family picture?  There are very good reasons for the privacy protections and 
other national and local protections to operate for the Administrative 
Contact.

Finally, since the purpose of the WHOIS database is technical and the 
Administrative Contact is expressly non-technical, NCUC submits that this 
contact 
data should no longer be collected for the WHOIS database.  

    C.  Registered Name Holder or âDomain Holderâ

The Transfer Task Force defined domain holder as:
âThe individual or organization that registers a specific domain name. This 
individual or organization holds the right to use that specific domain name for 
a specified period of time, provided certain conditions are met and the 
registration fees are paid. This person or organization is the âlegal 
entityâ 
bound by the terms of the relevant service agreement with the Registry operator 
for the TLD in question.â

Following this definition, we must evaluate whether the registrant data is 
personal and should be treated with special care.  Of all the contact data, we 
find the Domain Holder to be the most personal.  This is the woman, the family 
head, the Cub Scout leader, and other individuals and leaders of small 
organizations who must list their personal names, home addresses, private phone 
numbers and personal email addresses.  Once published, this personal data is 
used 
for all the abuse and misuse documented in the Task Force Uses report â from 
spamming to stalking and harassment.  

This personal data is exactly the type of data that data protection laws seek 
to protect.  Article 29 Data Protection Commissioners now urge ICANN and our 
TF that:  

âThe registration of domain names by individuals raises different legal 
considerations than that of companies and other legal persons registering 
domain 
namesâ and  âit is essential to limit the amount of personal data to be 
collected and processed.â Article 29 WG citation above. 

The collection of such personal data as a global ICANN WHOIS policy serves no 
technical purpose.  Individual registrants rarely answer technical questions 
about their domains or their abuse â and would refer such questions (such as 
the hijacking of their domain name by a spammer) to their technical contact 
instead.   Accordingly, the collection of Domain Holder data serves little 
purpose for the WHOIS database and should not be continued as a global ICANN 
policy. 


Conclusion:
The best way to protect millions of individual and small organizational 
domain name registrants, and to comply with data protection laws worldwide, is 
for 
ICANN to carefully review the contact data collected for the WHOIS database 
and limit the data strictly to that necessary for its technical purposes and 
mission.

Outreach Statement:
Months ago the NCUC TF representatives queried NCUC members regarding Whois 
data and what they and their organizations place in the contact fields. The 
answers and discussion that ensued were incorporated into this statement. The 
NCUC TF representatives then prepared this Contacts Statement.  It was posted 
to the Constituency list on August 31, and subsequently adopted as the official 
position of the Constituency.ÂÂ

Attachment: NCUC Contacts Statement.rtf
Description: RTF file



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