Re[2]: [ga-sys] The EU Privacy issue

["William X. Walsh" <william@userfriendly.com>]

Hello Joanna,

Thursday, May 24, 2001, 7:46:46 PM, Joanna Lane wrote:
> It doesn't require the businesses to do business with those that
>> choose to opt-out, so the opt-out can be in the form of "If you want
>> to register a domain name, you agree to these terms.  If you do not
>> agree to these terms, you may opt-out by not registering a domain
>> name."

> Rubbish. Offering a choice means just that. That does not mean to say that
> options have to be offered at the same price. Opt-in could be encouraged by
> discounts.

No, offering a choice doesn't mandate that they do business with those
that opt-out, and there is NOTHING in these rules that state that it
is a violation to refuse to do business with those who will not
opt-in.

>> 
>> A domain name is not a right.

> Actually, that is debateable. I may have an internationally recognized
> Trademark and wish to dispute third party bad faith registration of the
> TM.com. You are suggesting that UDRP would award the DN to the third party
> on the basis that I am unwilling to disclose personal data, which it is my
> legal right to do. This is silly.

You have a case in court for stopping someone from utilizing your
trademark unlawfully.  But that doesn't mean you have a right to the
domain name itself.  NO law gives you a right to the domain name,
merely to protection to prevent others from using your trademark in an
infringing manner.


> It took 2 years of negotiations between the EU and Microsoft etc. to arrive
> at a mutually acceptible agreement. The DNSO has only just started and has
> yet to determine what are the specific purposes for which this information
> is required in the public domain. (see postings on WHOIS Conditions of use).

MS's conditions are vastly different. The DNSO does not have to
negotiate with the EU.  The DNSO does not exist legally, and does not
enter into any contracts as far as that goes.

> Even if the Registries-Registrars can satisfy requirements for a particular
> purpose to collect and disseminate the data, whether or not this is to be
> accessible to millions of people in the public domain for "any lawful
> purpose" through WHOIS is an entirely seperate consideration. So far as the
> EU is concerned, "any lawful purpose" does not protect their citizens rights
> of freedom to which they are entitled under the law.

That freedom includes not registering domain names if they can't
accept the disclosures.

> Nothing I've read precludes the above situation from being
>> the way domain registrars handle this issue.

> You are correct, but as a small private corporation, you have more
> flexibility and power to engage in discriminatory practices. ICANN seeks to
> be representative of international interests and cannot afford such
> luxuries.

ICANN doesn't have to do anything.  This does not effect ICANN in any
way.  The registrars WHO RESIDE OR HAVE A PRESENCE IN THE EU, need to
find out how to comply with the rule.

This rule does not effect US Based registrars who do not have an EU
presence.  Microsoft has an EU presence.

Microsoft also receives data from EU companies about EU Residents.

That kind of situation does not exist with domain names.

The Tucows agreement would bring the bulk access whois agreement into
compliance with the EU rules, thus eliminating that issue as well.

>> Registrars who refuse to....well they can also be registrars for their
>> local ccTLDs.
>> 
> Tell that to Register.com

Register.com has bigger worries, Joanna.  They are fighting for their
very life right now.

-- 
Best regards,
William X Walsh
mailto:william@userfriendly.com
Owner, Userfriendly.com
Userfriendly.com Domains
The most advanced domain lookup tool on the net


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