Comment on WHOIS Policy Review Team Draft Report

[Avri Doria <avri@xxxxxxxx>]

Comment on draft-final-report-05dec11-en.pdf 

While I support the comments submitted by the NCSG 
<http://forum.icann.org/lists/whois-rt-draft-final-report/msg00021.html>, I 
wish to discuss further a point that was merely alluded to in that comment.  My 
comment relates to cross jurisdictional limits on national sovereignty in 
relation to human rights.

Just as the ICANN community often speaks of 'bad actors' among Registrars and 
Registrants, we must recognize that 'bad actors' exist among the governments of 
the world.  By 'bad actors' among the governments of the world, I refer to 
those governments who consistently violate the principles of the Universal 
Declaration of Human Rights (UDHR) <http://www.un.org/en/documents/udhr/> and 
the International Covenant on Civil and Political Rights  (ICCPR) 
<http://www2.ohchr.org/english/law/ccpr.htm>, as well as other international 
treaties and covenants.   As with 'bad actors' within the Regstrars and 
Registrants, the 'bad actors' within governments are a minority, but they do 
exist.  I refer specifically, not only to those governments who use private 
data to prosecute citizens for freedom of speech and association, but those who 
persecute and imprison, and sometimes worse, their citizens for the 'crime' of 
being gay, i.e for having a gender orientation or gender expression that is 
outside their narrow cultural norms.

The draft document frequently speaks of the authority of national law in 
requiring Registrars and Thick Registries to turn over privacy and proxy data. 
However, when that national law is in contravention to international law on 
human rights, it MUST not be honored.  It is bad enough that these governmental 
'bad actors' could force the Registrars and the Thick Registries within their 
own borders to comply with their illegal demands, it is unacceptable that ICANN 
should become complicit in their crimes against humanity by virtue of its 
contractual rules on Registrars and Thick Registries.

As United Nations Secretary General Ban Ki Moon said on 29 January 2012 in an 
address to the leaders of the African Union

"
Let me mention one form of discrimination that has been ignored or even 
sanctioned by many states for far too long, discrimination based on sexual 
orientation or gender identity.  This has prompted some governments to treat 
people as second-class citizens, or even criminals. Confronting this 
discrimination is a challenge.  But we must live up to the ideals of the 
Universal Declaration [of Human Rights]
"

This is similar to remarks made by United States Secretary of State Hillary 
Clinton Hillary Clinton in her Human Rights Day speech, delivered in Geneva on 
6 December 2011.

"
Like being a woman, like being a racial, religious, tribal, or ethnic minority, 
being LGBT does not make you less human. And that is why gay rights are human 
rights, and human rights are gay rights. 

It is violation of human rights when people are beaten or killed because of 
their sexual orientation, or because they do not conform to cultural norms 
about how men and women should look or behave. It is a violation of human 
rights when governments declare it illegal to be gay, or allow those who harm 
gay people to go unpunished. It is a violation of human rights when lesbian or 
transgendered women are subjected to so-called corrective rape, or forcibly 
subjected to hormone treatments, or when people are murdered after public calls 
for violence toward gays, or when they are forced to flee their nations and 
seek asylum in other lands to save their lives. And it is a violation of human 
rights when life-saving care is withheld from people because they are gay, or 
equal access to justice is denied to people because they are gay, or public 
spaces are out of bounds to people because they are gay. No matter what we look 
like, where we come from, or who we are, we are all equally entitled to our 
human rights and dignity.
"

Likewise it is a violation of human rights for ICANN rules on REVEAL to 
endanger populations and associations whose only crime is in expressing their 
human rights and thus to expose them to the crimes against humanity committed 
by their governments under the pretext of it being illegal to be gay.

My recommendation for the final report is that whenever, the authority of 
national law is referred to in the WHOIS Review recommendations, it should 
include the qualifier "contingent on adherence to Internationally recognized 
covenants and treaties on Human Rights",  so that the authority of governmental 
'bad actors' is blocked from extending contractually to Registrars and 
Registries.

Thank you

Avri Doria