Re: [dow2tf] National law and data protection commissioners

[Thomas Keller <tom@xxxxxxxxxx>]

Hello All,

looking at the real world might be a got way to find a solution on
how to handle this. I just talked with our in-house council and he
gave me some guidance on how a enquiry of our state data protection 
office usually precedes.

1. Someone (single user or consumer protection agency) files a complain 
   about a company at the data protection office.

2. The data protection office makes an offical enquiry at the subject of
   the complain if it deems the complain justified.

3. The subject of the complain answers the enquiry by stating reasons
   for its behavior and/or offers a solution to the problem. In other
   words: Negotiations with the data protection office start in case 
   the data protection office engages into such.

4. The data protection office issues a binding legal sentence in regard to the
   complain which can be ground for civil or criminal remedies.

This scenario (which we experienced already in other matters than whois)
shows pretty good that there is no room for any consultation with ICANN
and other parties to resolve the problem once a sentence is issued.
Nevertheless there is the chance to engage into such consultation in the
time before such a sentence is issued but only if the data protection
office is willing to do so. In case they don't this fact must be honored
by all contracting parties.

Best,

tom


Am 09.05.2004 schrieb Steve Metalitz:
> I am not sure the scenario outlined by Kathy has ever occurred, much less that it occurred in the case of .name.  I suggest that the best way to deal the possibility that it might occur is to amend the proposal which I circulated to provide for an exception when the registrar has been ordered by relevant law enforcement officials not to disclose the issue to ICANN nor to seek ICANN's cooperation in finding a solution. 
> 
> ________________________________
> 
> From: owner-dow2tf@xxxxxxxxxxxxxx on behalf of KathrynKL@xxxxxxx
> Sent: Sun 5/9/2004 1:25 PM
> To: dow2tf@xxxxxxxxxxxxxx
> Subject: [dow2tf] National law and data protection commissioners
> 
> 
> In our last conference call, we heard great concern about the needs of law enforcement for the use of sensitive domain name data.  Balance, and of course law enforcement requirements, require us to pay the same -- if not more attention -- when law enforcement comes to Registrars with formal complaints and concerns over the release of sensitive data under national and local laws to protect domain name holders.
>  
> So, in lieu of the steps set out by Steve, I recommend the following action to complete the concept of National law/ICANN notification that Tom Keller set out:
>     1) Registrars should respond to the law enforcement and/or data protection officials who have approached them with formal complaints, concerns, or allegations re: personal and sensitive data.
>     2) Registrars should take the steps necessary to promptly come into compliance with the requirements of the law re: the personal/sensitive data.  
>     3) Registrars should then report to ICANN re: the law, the allegations, and the steps taken to come into compliance with the allegations.  It would, of course, be appropriate for ICANN to publish this data to the public in a format that TF2 may choose to recommend.
> [Note:  the above three steps appear to be the sequence followed by .NAME:  
> contact re: violations, compliance with law, notification of ICANN (and TF2 in its comments)]
>  
> To do otherwise would expose Registrars to liability under national law.  
>  
> Further, we can minimize the conflicts that may occur in the future by TF2 recommendations that reduce the conflicts between WHOIS policy and national law.  TF2 can and should address the problems raised by data protection commissioners in Italy, Europe and internationally in their comments over the law few years to ICANN and on WHOIS.  
>  
> I look forward to talking with you more about these issues and the Compromise Proposal on Monday.   Regards, Kathy

Gruss,

tom

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