Re: [gnso-reg-sgc] Commercial vs. Non-commercial

["Rosette, Kristina" <krosette@xxxxxxx>]

All,

I cannot be on this morning's call, but wanted to send a quick note in support 
of the principles that Chris and Lynn have developed.  Thanks to you both!

Kristina


Kristina Rosette
Covington & Burling LLP
1201 Pennsylvania Avenue, N.W.
Washington, DC  20004-2401
voice:  202-662-5173
direct fax:  202-778-5173
main fax:  202-662-6291
e-mail:  krosette@xxxxxxx

This message is from a law firm and may contain information that is 
confidential or legally privileged.  If you are not the intended recipient, 
please immediately advise the sender by reply e-mail that this message has been 
inadvertently transmitted to you and delete this e-mail from your system.  
Thank you for your cooperation.





-------------------------
Sent from my Wireless Handheld




----- Original Message -----
From: owner-gnso-reg-sgc@xxxxxxxxx <owner-gnso-reg-sgc@xxxxxxxxx>
To: 'Maria Farrell' <maria.farrell@xxxxxxxxx>; gnso-reg-sgc@xxxxxxxxx 
<gnso-reg-sgc@xxxxxxxxx>; jon.bing@xxxxxxxxxx <jon.bing@xxxxxxxxxx>
Cc: 'Goodendorf, Lynn (IHG)' <Lynn.Goodendorf@xxxxxxx>
Sent: Mon May 21 12:56:05 2007
Subject: RE: [gnso-reg-sgc] Commercial vs. Non-commercial

As requested during last weekâs call by the Sub-Group C leaders, Lynn 
Goodendorf and I have provided criteria to address the distinction between 
commercial vs. non-commercial activities.  Lynn and I reviewed a number of 
relevant documents including the EU Directive on Data Protection and the APEC 
Privacy Framework in order to develop the following draft formulation.  We hope 
this submission assists the work of Sub-Group C.

 

Chris Gibson

_____________________________________

 

Commercial vs. Non-Commercial Activity

 

For purposes of considering issues related to access to, and disclosure of, 
WHOIS data:

 

(1) Step One â the registered name holder is a: 

 

(a) legal person (e.g., companies, businesses, partnerships, non-profit 
entities, etc.,), or

 

(b) natural person.  

 

(We assume the distinction between legal vs. natural persons would apply, so 
that the commercial vs. non-commercial distinction needs to be considered only 
in relation to natural persons).

 

(2) Step Two 

 

(a) commercial activity means only those activities carried out by natural 
persons which involve:

 

(i) the offer or sale of goods or services;

 

(ii) the solicitation or collection of money or payments-in-kind for goods or 
services;

 

(iii) marketing activities including advertising or sale of advertising (e.g., 
these categories would include websites containing paid hypertext links); 

 

(iv) all activities carried out by natural persons on behalf of legal persons; 
or

 

(v) the collection, holding or processing of personal data (or instructing 
another legal or natural person to collect, hold, process, use, transfer or 
disclose such data), except in the exercise of activities which relate 
exclusively to personal, family, domestic or household affairs, such as 
correspondence or the holding of address books containing family, friends and 
professional contacts.

 

(b) non-commercial activity means activities by natural persons which do not 
fall within paragraph (2)(a) above.

 

___________________________________

 

________________________________

From: owner-gnso-reg-sgc@xxxxxxxxx [mailto:owner-gnso-reg-sgc@xxxxxxxxx] On 
Behalf Of Maria Farrell
Sent: Wednesday, May 16, 2007 11:14 AM
To: 'Chris Gibson'; gnso-reg-sgc@xxxxxxxxx; jon.bing@xxxxxxxxxx
Cc: 'Goodendorf, Lynn (IHG)'
Subject: RE: [gnso-reg-sgc] Commercial vs Non-commercial

 

Dear Chris,

 

Many thanks to you and Lynn for this. I think the group will really benefit 
from your work - thank you for being so flexible when I put you on the spot on 
our call today! 

 

I hope that other members of the sub group will look at your language and add 
to it as well, using this mailing list. 

 

It would very much help the group if you could have this work to the list by 
next Monday, 21 May. 

 

All the best, Maria

 

________________________________

From: owner-gnso-reg-sgc@xxxxxxxxx [mailto:owner-gnso-reg-sgc@xxxxxxxxx] On 
Behalf Of Chris Gibson
Sent: Wednesday, May 16, 2007 4:08 PM
To: gnso-reg-sgc@xxxxxxxxx; jon.bing@xxxxxxxxxx; 'Maria Farrell'
Cc: 'Goodendorf, Lynn (IHG)'
Subject: [gnso-reg-sgc] Commercial vs Non-commercial

Dear Jon and Maria,

 

Thanks again for the sub-group C call this morning.  I want to confirm that I 
spoke briefly with Lynn Goodendorf (copied) after our call and we will work to 
put together some language (hopefully helpful) suggesting criteria 
(describing/characterizing) commercial activity.

 

Chris Gibson

 

________________________________

From: Christopher Gibson [mailto:cgibson@xxxxxxxxxxx] 
Sent: Tuesday, May 15, 2007 8:40 PM
To: gnso-reg-sgc@xxxxxxxxx; jon.bing@xxxxxxxxxx
Cc: 'Maria Farrell'; philip.sheppard@xxxxxx
Subject: Working Proposal for Sub-Group C

 

Dear Jon and sub-group C members,

 

I am attaching a working proposal (in Word) for consideration of sub-group C.  
It is based on the matrix of WHOIS Options that has been circulated.  There's 
no pride of authorship to this document.  Hopefully, some of the ideas or 
language will prove helpful, and it also makes clearer the implications of 
sub-group C's work.

 

Chris Gibson

 

________________________________

From: owner-gnso-reg-sgc@xxxxxxxxx [mailto:owner-gnso-reg-sgc@xxxxxxxxx] On 
Behalf Of Maria Farrell
Sent: Monday, May 14, 2007 6:06 PM
To: gnso-reg-sgc@xxxxxxxxx
Subject: [gnso-reg-sgc] Summary of last week's call + initial remarks on this 
sub group's oucomes

Dear Sub Group C members,

 

Instead of the usual call summary by staff, Jon Bing has pulled together some 
initial remarks on this group's outcomes. I include it below for your 
information and discussion.

 

Can you please review this and give some thought to how we can develop this 
into a summary of this group's conclusions on this week's call?

 

As a reminder, in the Working Group proper, we will use the conventions set out 
in the Charter to capture consensus and positions with varying levels of 
agreement: 

 

" 

-            Agreement â  there is broad agreement within the Working Group 
(largely equivalent to ârough consensusâ as used in the IETF)

-           Support â  there is some gathering of positive opinion, but 
competing positions may exist and broad agreement has not been reached

-           Alternative view â a differing opinion that has been expressed, 
without garnering enough following within the WG to merit the notion of either 
Support or Agreement."

 

For now, let's focus on seeing what we tentative options and conclusions have 
emerged in this sub group. 

 

All the best, Maria

 

Sub Group C

10 May 2007

 

 

Participants:

Glen De SaintGery

  Lynn Goodendorf

  John Bing

  Philip Sheppard

  Avri Doria

  Kristina Rosette

  Bertrand De La Chapelle

  Mawaki Chango

  Paul Stahura

  Lane Mortensen

  Neil Schwartzman

  Maria Farrell

  Jay Westerdal

  Chris Gibson 

 

 

A false declaration, should be grounds for challenge, directed in the first 
instance to the OPOC


Matrix of Whois options and outcomes: legal/natural and 
commercial/non-commercial


The original matrix as supplied by Maria Farrell looked as below:


 

 




 

 

        Commercial 

        Non-commercial

        
Legal

        Legal person + commercial objective

 

e.g. a legal partnership (law firm) or limited liability company 

 

 

 

 

Whois output: OPEN 

 

Criteria for establishing this status:

-          company or legal registration?

-          Self-declaration? 

        Legal person + non-commercial objective

 

e.g. a not for profit organisation such as ICANN, or Medecins san Frontieres, 
or â in some jurisdictions â a sports club, trade association or 
faith-based organisation. 

 

Whois output:  ?

 

Criteria for establishing this status:

-          Legal registration?

-          Self-declaration?

-          Membership of recognised non-profit list, e.g. WIPO interlocutor? 

        
Natural

        Natural person + commercial objective

 

e.g. a sole trader such as an eBay merchant or small business owner, or a 
chartered accountant or solicitor in solo practice

 

Whois output: OPEN

 

Criteria for establishing this status:

-          Self-declaration?

 

        Natural person + non-commercial objective

 

e.g. a blogger, operator of email list(s), family website, hobby site/email use

 

Whois output: CLOSED

 

Criteria for establishing this status:

-          Legal registration?

-          Self-declaration?

 

        

 

There is broad agreement that the matrix was a useful tool for thinking about 
the options, and that the term âactivityâ might be preferred to the term 
âobjectiveâ, which is used in the matrix.


Commercial â non commercial


There seems to be broad consensus of two aspects. Support for idea that 
distinction natural between a legal and physical person can be practically 
made, but distinctions between commercial and non-commercial activities are 
complex and differ within and between jurisdictions â and also that the 
distinction is gradual: an activity may slip from being non-commercial to 
becoming commercial along a slope. If one may expect several borderline 
registrants, the distinction may not be operative and perhaps generate more 
problems that it solves.

 

The tentative conclusion is suggested that one abandons the distinction between 
commercial and non-commercial activities, basing the rules for the registration 
only on the distinction between legal and natural persons. 

 

However, there prevails the aalternative view that work should still be done on 
distinguishing between commercial and non-commercial activities. If this is to 
be explored, one should also explore how to make it operational.


Legal persons â individuals (natural persons)


There seems to be support for the distinction between natural and legal 
persons, a distinction which is based on the corresponding distinction common 
to data protection regulation, both national and international. An assumption 
is made that legal persons or their OPoC would have full contact data published 
in Whois, while natural persons would have a smaller set of data published, 
both sets of data not specified beyond this assumption.

 

Legal persons

        Natural persons

        
Full contact data published

        Smaller set of contact data published

        

 

1.      How to define which registrants belong to which category? The major 
distinction would seem to be whether one would require or not some sort of 
authentication procedure. A minimum would be a requirement for the registrar to 
ensure that the data was not fabricated; a next step would be to ensure that 
the data was correct; a further step would be to ensure that there is no 
misrepresentation, for instance a natural person fronting for a legal person. 

 

Any authentication procedure will incur costs, and must therefore be justified 
in the advantages it brings. The advantages sought for are reduction in 
misrepresentations and a corresponding increase in the quality of Whois data.

 

The tentative conclusion is that the suggested procedures for authentication do 
not seem to ensure the reduction of misrepresentation unless rather major 
resources are required by the registrar. The conclusion is then to base 
registration only on self-declaration or existing routines already implemented 
by the registrars.

 

2.      Authentication procedure. If basing the distinction on 
self-declaration, there will be no need for authentication procedures. This has 
the positive effect of costs not being required, the negative effect that it 
does not contribute to ensure that data are correct. In a way, the problem is 
pushed further into a next stage.

 

There are concerns that self-declaration creates an incentive for bad faith 
actors to wrongly claim they are natural persons in order to avoid greater 
immediate disclosure of Whois data. There is also a concern that someone making 
a bad faith declaration may also have supplied false OPoC information. 

 

3.      Bad faith declarations. If declaration is made in bad faith, a 
challenge mechanism could be used (work on this is under item 4a of the 
charter, so currently the task of sub group A). A false declaration, should be 
grounds for challenge, directed in the first instance to the OPoC

 

One suggestion was that a bad faith registration should trigger access to the 
full set of information, notwithstanding that this issue would be for sub group 
B. 

 

The tentative conclusion is that there is a need to coordinate with sub group A 
on enforcement issues (e.g. is it an issue if a registrant says they are a 
legal entity when they are not?) in the case of bad-faith declarations,