Re: [council] Proposed motion on WHOIS

[Mawaki Chango <ki_chango@xxxxxxxxx>]

Hello Bruce, Council,

--- Bruce Tonkin <Bruce.Tonkin@xxxxxxxxxxxxxxxxxx> wrote:

> Proposed Motion
> 
> In response to the extensive community and Government input on
> the
> definition of the purpose of WHOIS, the GNSO Council agrees to
> undertake
> the following steps:
> 
> One:  Each Council member that voted in favour of the
> definition will
> provide a brief explanation of the reason for supporting the
> resolution
> and their understanding of its meaning.

This might seem something simple, innocuous to do, however I
feel there is something dangerous here. The assumption here,
whether we like it or not, is that we are implying there is
something wrong that needs to be fixed, on the side of those who
voted for the current formulation of the purpose of WHOIS (the
former formulation 1). What if some voted against because they
misunterstood it? Why do we seem to assume that the mistake, if
any, is necessarily on the other side (that of the voted
definition)?

I guess Bruce, you didn't mean to imply that, but the fact is
that obviously is the assumption of those who are counter
attacking the vote of the Council, and by doing everything
necessary (and even more) to please them, we end up by adhering
to that assumption without realizing it. Let's be careful and
not set the following as a precedent: the Council vote means
nothing, because the Council is not those who voted for this or
that definition - it is all of us.  

> Two: the ICANN staff will provide a summary of the other
> interpretations
> of the definition that have been expressed by the community
> and
> Governments.
> 
> Three: the Council will undertake a dialogue with the GAC and
> SSAC on
> developing a broadly understandable definition of the purposes
> for which
> the current data required in the RRA is collected.

The GAC as a whole has no such a thing as a position so far, and
we need to clarify what exactly the GAC representatives
individually represents. The GAC individual members may come
from a department of their government that has nothing
whatsoever to do with data storage/protection/retention/use,
etc. in their country, much less with WHOIS. We've recently seen
GAC members make declarations contradictory to their national
laws on the matter. So collecting their views, especially if we
collect their individual views, we need to make sure that those
are consistent/complemented with the views of their national law
enforcement agencies, as well as their national data protection
authorities. That is the only way we can say such position is
such country government's position, which is what is legitimate
to pursue, not just taking the opinion of individuals just
because they happen to have been appointed by their government
on the GAC (is it necessary to remind us that the GAC has not a
specific competence dealing substantially with a specific set of
issues, such as WHOIS's, but the whole array of issues that fall
under ICANN mission and functions).

 
> Four: The GNSO Council requests that the WHOIS task force
> continue with
> their work as specified in the terms of reference taking into
> account
> the recent input that has been provided.
> 
> Five: The GNSO Council will take the final report from the
> WHOIS task
> force that addresses all terms of reference, and the
> definition of
> purpose of collecting data derived from the dialogue with the
> GAC and
> SSAC, and consider improving the wording of the WHOIS service
> definition
> so that it is broadly understandable.
> 
> The GNSO Council notes that the current definition is related
> to the
> service that provides public access to some or all of the data
> collected, and is not a definition of the purpose of the data
> itself.
> 

Here we need to have a clear debate on the ground for
distinguishing the purpose of WHOIS data and the purpose of
WHOIS services. My understanding so far is that, with regard to
privacy concerns, the use of the data shall match the purpose of
collecting them. The legitimate and legal access and use of that
data are catered for by each of the jurisdictions concerned. Law
has always had preeminence on any regulation and policy
arrangements in all countries. Natural persons as well as legal
entities such as registrars, are subject to the law in force on
their territory. Does ICANN need - and is it the mission of
ICANN - to further take care of this?

Mawaki