Re: [gnso-dow123] Emailing: 2100-9588_22-5986553.htm

[KathrynKL@xxxxxxx]

Belated response to Maggie --
Maggie, I regret that you were not at the Privacy Conference.  We scheduled 
it to run after the then-scheduled GAC Whois meeting and then posted it to the 
TF -- a good time for maximum TF participation we thought.  I think you would 
have found Drew McArthur's comments of Telus very interesting -- and Chris 
Savage (US expert) agreed with him regarding the traditional protections of 
privacy imbedded in the telephone and ISP systems of the US and Canada.

As for two comments you made below:
1) I agree that data retention questions raise many privacy issues and 
concerns.  I think they are far beyond the scope and purpose of this TF.

2) What I find of great concern is the erosion of clear lines in the TF 
discussion between "ideas" and "goods and services."  The "marketplace of 
ideas" is 
completely different from the "marketplace of goods and services."  It is a 
clear distinction that FTC and others agree on.  The FTC acknowledges that its 
jurisdiction is solely to those "holding themselves out" *to the public* "to 
provide goods and services."  Websites of ideas are different from websites for 
goods and services sold to the general public. 

In countries that value democratic dialogue, the marketplace of ideas has 
never required someone to put his/her name on an idea.  That includes "Publius" 
(James Madison and others authoring the Federalist papers), Mark Twain, George 
Sand, and many others.  At the Privacy Conference, I read from the US Supreme 
Court case McIntrye v. Ohio Elections Comm'n (1995) striking down an Ohio law 
that required a person to put his/her name and address on political pamphlets. 
 The Court ruled that you cannot require "disclosure as a condition of entry" 
into the marketplace of ideas. <full quote below>

The whole concept of "holding himself/herself out to the public" applies to 
commercial ventures.  A 1967 case summarizes the US Supreme Court position 
nicely: "In Deputy v. du Pont, 308 U.S. 488, the Court held that a "trade or 
business * * * involves holding one's self out to others as engaged in the 
selling 
of goods or services."  (Cherry v. Commissioner, US Tax Court, 1967).

I would like to request that the TF keep a clean line here -- that ideas are 
different from goods and services.  It is a line of the FTC, and of every 
other area of life. Websites of ideas are different from websites of goods and 
services.

Kathy
--------------------- Quote from McIntyre v. Ohio Elections Commission 
------------------------
ââAnonymous pamphlets, leaflets, brochures and even books have played an 
important role in the progress of mankind. Great works of literature have 
frequently been produced by authors writing under assumed names. Despite 
readersâ 
curiosity and the publicâs interest in identifying the creator of a work of 
art, the author generally is free to decide whether or not to disclose his or 
her 
true identity.The decision in favor of anonymity may be motivated by fear of 
economic or official retaliation, by concern about social ostracism, or merely 
by a desire to preserve as much of ones privacy as possible. Whatever the 
motivation may be, at least in the field of literary endeavor, the interest in 
having anonymous works enter the marketplace of ideas unquestionably outweighs 
any public interest in requiring disclosure as a condition of entry.â
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<<Maggie wrote: 
> 
> I didn't receive notice of the conference until a couple of weeks prior,
> when I had already made travel arrangements, I was not present.  As a
> network provider, in fact our largest customer base is covered by the IP
> Whois database. If the ISPCP had been given proper notice and an
> invitation to speak at your conference, everyone could have been
> educated on this issue. 
> 
> I do not live in Canada or Britain, and as you may have noted from my
> email, I had said nothing about those countries' law enforcement
> efforts.  Since you brought it up, I will say, however, that six weeks
> ago I spoke with a law enforcement official from Great Britain who
> indicated that they need greater tools to fight cyber crimes in GB
> because their current regime had proven woefully inadequate, and thus
> they implemented massive data retention requirements.  Their thinking
> was that, they will just require ISPs, Registrars and any other online
> businesses to collect all data, in mass, regardless type and transfer it
> to the hands of the government, regardless of whether it is remotely
> related to an investigation or not.  To me, that is a far greater
> concern for privacy than any Whois access.  
> 
> If your analogy to phone numbers and drivers' licenses related to
> personal email addresses, I could agree with you. But by registering a
> domain and operating a website, a person or organization is holding
> himself/itself out to the public, and I believe there should be some
> accountability as a result. 
>