RE: [gnso-dow123] Info From Australian (auDA) review of Whois

["Milton Mueller" <Mueller@xxxxxxx>]

Niklas:
I suppose that's one way to put the best possible face on it. But just
to be more accurate, the auDA are NOT saying that publising the contact
information is legal. They did not take a position on that, recognizing
that it is contested. They are simply saying making a public interest
determination, which is within their discretion and moots the issue of
legality. 

On the question of legality, If you read the full report, you discover
that the IP/copyright interests argued that if registrants give their
consent - and ONLY if they consent - it is legal to disclose the full
contact info. And of course, even I would agree with that. 

The sticky question is: what constitutes registrants "consent?" If you
force them to sign it before they can register a domain, that does not
imho constitute "consent." That's just a a contract of adhesion that
exploits the DNS monopoly to impose obligations on registrants. If
however, registrants are not required to disclose as a condition of
registration but are given a right to "opt in" to permit access to their
information, then of course that is consent, and disclosure is ok with
me. In setting aside the issue of legality, auDA was basically ducking
that question, that's all.

>>> <Niklas_Lagergren@xxxxxxxx> 10/25/2005 11:31 AM >>>
Thanks for the info, Milton -

It is quite telling to see that auDA is not asserting that Australian
privacy law bars the disclosure of the full range of registrant
contact
data. It simply states "Although disclosure of full registrant contact
details may not breach Australian privacy legislation, we do not
believe
that such disclosure is in the interests of registrants or the general
public." 

In other words, it is justifying its stance on political rather than
legal grounds.   

This is worth keeping in mind since Australia has in the past been
mentioned by some members of the Task Force as one of the countries
where ICANN's contractual obligations regarding WHOIS would allegedly
violate local privacy law. During the last two years of TF work, we
have
heard many claims from a few persons of cases of non-compliance with
privacy law at national level (notably in Australia and in some
European
countries) but remarkably little evidence to actually support these
claims... 

As to the POLITICAL objective of, say, a given government or a given
ccTLD regarding WHOIS accessibility, it is all very interesting but
certainly not an issue for the GNSO to deal with. The GNSO would
neither
have the mandate nor the time to do that I believe.

Kind regards -

Nik

-----Original Message-----
From: Milton Mueller [mailto:Mueller@xxxxxxx] 
Sent: mardi 25 octobre 2005 15:31
To: gnso-dow123@xxxxxxxxxxxxxx 
Subject: [gnso-dow123] Info From Australian (auDA) review of Whois


Registrant contact details
Submissions from IP and copyright interests called for disclosure of
full registrant contact details. It was argued that Australian privacy
legislation does not prohibit disclosure provided the registrant has
given consent (express or implied). Some submissions acknowledged that
registrant contact details can be found via other means where the
WHOIS
record includes an official identifier (eg. ACN or ABN), however this
is
often not the case where the registrant has used a registered business
name or trade mark as eligibility criteria for the domain name.

auDA response:
Although disclosure of full registrant contact details may not breach
Australian privacy legislation, we do not believe that such disclosure
is in the interests of registrants or the general public. Given the
sensitivity surrounding the disclosure of email addresses, our view is
that most registrants would not want their physical address and phone
number disclosed on WHOIS. We are concerned that registrants may
provide
proxy or false contact details to avoid public disclosure, thereby
undermining the quality and integrity of .au registry data. We note
that
ASIC
and ABR also do not disclose full contact details online.