Re: [registrars] Revised draft for TF2

[Thomas Keller <tom@xxxxxxxxxx>]

Am 13.04.2004 schrieb Rob Hall:
> Actually, Slide 11 doesn't say 100% illegal.  It talks about allowing it in
> certain circumstances.

Well Slide 11 says:

Bulk access ?

- No, this is a disproportionate privacy infringing step; unless a very
  convincing, specific case may be made which has to be followed by due
  process.

I'm not a lawyer but the way I read these lines they say that Bulk
access might be possible if a court orders such a action. This means
to me that it can not be part of a contract. Sorry for the 100% which
might not be 100% true but at the end of the day it has the same outcome.

> Which is exactly my point.  Tell users what is being done with the data.
> Inform them, and let them make a choice.  This is what most privacy laws are
> about.  Not stoping publication, but informing users.
> 
> In fact, in that same presentation, slides 3 and 4 clearly lay out what is
> required for notification of the user.    Slide 5 asks the question "must a
> data subject consent to the disclosure of his collected data" and the answer
> is "No, if disclosure was part of the processing purpose, of which the data
> subject has been informed".  QED.

Two things you have to keep in mind is that 

a.) This is only the EU directive and not
	I   Memberstate law which might be different and even more restrictive.
	II  does not reflect privacy legislations in Australia, Japan or Canada.
	III does not reflect possible future privacy legislation.
b.) That everything depends on the purpose of the data and that this has
    not been defined yet.

tom

> Rob.
>   -----Original Message-----
>   From: owner-registrars@xxxxxxxxxxxxxx
> [mailto:owner-registrars@xxxxxxxxxxxxxx]On Behalf Of Siegfried Langenbach
>   Sent: Tuesday, April 13, 2004 10:32 AM
>   To: registrars@xxxxxxxx; Rob Hall
>   Subject: RE: [registrars] Revised draft for TF2
> 
> 
>   Hallo Rob,
> 
> 
>   see slide 11 from Georges presentation in Rom,
>   destributed on Tue, 2 Mar 2004 by ebroitman@xxxxxxxxxxxx
>   on this list.
> 
> 
>   siegfried
> 
> 
>   On 13 Apr 2004 at 10:02, Rob Hall wrote:
> 
> 
>   From:                         "Rob Hall" <rob@xxxxxxxxxxxxx>
>   To:                             <registrars@xxxxxxxx>
>   Subject:                     RE: [registrars] Revised draft for TF2
>   Date sent:                  Tue, 13 Apr 2004 10:02:57 -0400
> 
> 
>   > Thomas,
>   >
>   > Can you tell me on what basis you say buk whois is 100% illegal in
> Europe ?
>   >
>   > My understanding of your privacy laws is that you must inform the user
> of
>   > how their information will be disseminated.  Is it not true that if you
> tell
>   > the user that you will publish their information, and give it to whoever
>   > applies under your bulk whois contract, that you are covered legally ?
>   >
>   > You have informed the user of how their information is to be used, and
>   > distributed. It is then the users choice to continue given that they now
>   > know the playing field.
>   >
>   > You also make a statement that seems to unlink whois and transfers.  But
>   > they are in fact directly linked.
>   >
>   > I also believe that one of the primary reasons we have a distributed
> whois
>   > for com/net is to promote competition, not lessen it.  I am at a loss as
> to
>   > how making whois information available to the public hurts competition.
> I
>   > believe just the opposite occurs.
>   >
>   > I believe that if you unilaterally break your ICANN contract for any
> reason,
>   > you should face enforement and penalties.  If a big european telco broke
>   > their ICANN contract by not providing whois anymore, I suspect they
> would be
>   > found in breach, and no longer have a contract.  Exactly as would any
>   > non-european registrar who broke their contract.
>   >
>   > Rob.
>   >
>   >
>   > -----Original Message-----
>   > From: owner-registrars@xxxxxxxxxxxxxx
>   > [mailto:owner-registrars@xxxxxxxxxxxxxx]On Behalf Of Thomas Keller
>   > Sent: Tuesday, April 13, 2004 9:12 AM
>   > To: registrars@xxxxxxxx
>   > Subject: [registrars] Revised draft for TF2
>   >
>   >
>   > Hello,
>   >
>   > the discussion of the last days has been exceptional usefull and
>   > helped me to revise my first draft (attached). Beside referring
>   > to the changes I made in the document I would like to explain some
>   > of my thoughts behind certain passages in the draft. Lets start with
>   > the changes:
>   >
>   > 1. Pauls data fields were incorporated
>   > 2. The Tech-C data fields where changed to a Tech-C Point of Contact
>   >    field as suggested by Tom Barrett and Paul
>   > 3. The possibility to display additional data as requested by Elana
>   >    has been incorporated
>   > 4. A reference to the original use of WHOIS as requested by Brian has
>   >    been incorporated
>   > 5. Wording has been changed to reflect that we haven't voted on this
>   >    matter. This was requested by Tim (just a tiny change)
>   > 6. Three Whois levels have been cut down to two due to the request of
>   >    Jean-Michel
>   >
>   > The only two debated issuess I didn't change is the request to strike
>   > the Bulkwhois obligation and the general statement about national
>   > legislations and whois. Please let me explain my reasons for not
> changing
>   > it.
>   >
>   > Bulkwhois
>   >
>   > This one is rather simple. Bulkwhois is 100% illegal in Europe and
>   > I'm pretty sure that this holds true for most  other countries with
>   > privacy regulations. I can't imagine one company in Germany entering
>   > in such a agreement. Therefore to still be able to provide a leveled
>   > playing field this generally unloved obligation must go.
>   >
>   > National legislations and whois
>   >
>   > I totally understand the concerns some might have but I would like to
>   > ask them to consider two points:
>   >
>   > 1. Is it really likely that such a provision  will effect competition
>   >    in a negative way if all necessary data for competition must be made
>   >    available? Please keep in mind that we only talk about whois
>   >    information and not about countries passing laws prohibiting
>   >    transfers. This would indeed be, even if highly unlikely, a problem.
>   >
>   > 2. Would such a provision not only be an acknowledgement of the existing
>   >    cirumstances. Being realistic one must admit that we already
>   >    have the situation where a company y in a country x could decide to
> shut
>   >    down whois if their local legislation demands it without having to
>   >    fear any kind of penalties by ICANN. I guess it would be a very
>   >    interesting showcase to see ICANN argueing with EU officals and
> lawyers
>   >    why i.e. a big european telco is not providing whois anymore.
>   >
>   > Thats it for the moment.
>   >
>   > Best
>   >
>   > tom
>   >
>   > --
>   >
>   > Thomas Keller
>   >
>   > Domain Services
>   > Schlund + Partner AG
>   > Brauerstrasse 48                                Tel. +49-721-91374-534
>   > 76135 Karlsruhe, Germany                  Fax  +49-721-91374-215
>   > http://www.schlund.de                          tom@xxxxxxxxxx
>   >
> 

Gruss,

tom

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