Privacy and Technology in the 21st Century

The Intersection of Privacy Protection and the Enforcement of Law and Intellectual Property and Consumer Rights

An Overview of Current Events in Privacy Protections (or not) in Online Searches and Social Networking Sites

Kia OraPhilip J. Greene

InternetNZ Senior Research Fellow in Cyberlaw

Victoria University School of LawWellington, New Zealand

What is WHOIS??

Contact and related information concerning a domain name registration, namely:

Name of Registrar Name of Registrant, including address, phone

number and email Creation Date Expiration Date Administrative, Technical and Billing Contact info

From InterNIC web site’s FAQs:

Will my name and contact information be publicly available?

Information about who is responsible for domain names is publicly available to allow rapid resolution of technical problems and to permit enforcement of consumer protection, trademark, and other laws. The registrar will make this information available to the public on a "Whois" site. It is however possible to register a domain in the name of a third party, as long as they agree to accept responsibility -- ask your registrar for further details.

Why Open Access to WHOIS??

1. Intellectual property owners need speedy and inexpensive access to domain and Web site owners

2. Law enforcement officials also need access, if web site offers/abets illegal content and/or activity, is a source of spyware, viruses, phishing, etc.

3. Consumers often use WHOIS for contact and identity purposes (to register a complaint; to investigate possible phishing; selection of a vendor, etc.)

TradeMe.Co.Nz

Don’t Tread On Me?

WHOIS to the Rescue

What WHOIS Offers

Matter of First Impression?

Got a Secret?

Prove Your Qualifications to Teach

New Zealand Qualifications Authority Web site, found at NZQA.GOVT.NZ

Prove Your Qualifications

Or NOT!

WWW.NZQA.CO.NZ

Or Not

What’s a Gripe Site?

Why NOT Open Access to WHOIS?

1. Invasion of privacy - registrant might not want identity revealed

2. Exposes e-mail addresses to spam, phishing, virus and other attacks

3. Is said to violate European Union’s 2002 Directive on privacy and electronic communications, as well as other national privacy/data rights laws.

What is Status of WHOIS?

ICANN has just issued its Final Outcomes Report on the WHOIS Working Group 2007, please see: http://gnso.icann.org/drafts/icann-whois-wg-report-final-1-9.pdf

Grist for mill, discussion at next ICANN Meeting, Los Angeles, 31 October 2007

Scope of ICANN’s 2007 Review The WHOIS Working Group Outcomes Report (Report) was prepared in response to the GNSO Resolution of 28 March 2007, which created a WHOIS Working Group (WG) to examine three issues and to make recommendations concerning how current policies may be improved to address these issues:

#1. to examine the roles, responsibilities, and requirements of the operational point of contact (OPOC), and what happens if they are not fulfilled;

#2. to examine how legitimate interests will access unpublished registration data;

#3. to examine whether publication of registration contact information should be based on the type of registered name holder (legal vs. natural persons) or the Registrant’s use of a domain name.

Could it be…..

Just What IS a Natural Person?

Differentiating Between Natural and Legal Persons

From ICANN Report:

Working definition:

a natural person is a real living individual. a legal person is a company, business,

partnership, non-profit entity, association etc.

Other Possible ICANN Options?

The Special Circumstances Proposal

Special Circumstances model, also known as the Netherlands Model, because the rules are similar to those governing the .nl top-level domain:

"It allows individuals who demonstrate the existence of special circumstances to substitute contact details of the registrar for the data that would otherwise appear in published Whois." In other words, it allows some people to use the OPoC model if they qualify.

The Special Circumstances Proposal So who qualifies? According to the ICANN report:

“The proposal envisages that full contact data of individuals would be held back from publication in the Whois only when this "would jeopardize a concrete and real interest in their personal safety or security that cannot be protected other than by suppressing that public access." This would seem to indicate that the vast majority of contact information would be published in the Whois, and that means of access to unpublished data would rarely be required.”

Intellectual Property v. Privacy, Pt. II - P2P File Sharing Litigation

Recording industry battles use of peer-to-peer (P2P) file-swapping software, such as Napster, KaZaa, LimeWire, Grokster, et al. Copyright infringement.

Recording Industry Association of America (RIAA) initiated a two-pronged attack. Phase One, RIAA brought suit against these software providers to shut them down.

RIAA v. Verizon, Pt. I

Phase Two, RIAA commenced the filing of law suits against the actual users doing the file-sharing (2002).

Only IP address of user’s computer known.

RIAA relied on streamlined subpoena process of the Digital Millennium Copyright Act to compel disclosure of users’ identities.

RIAA v. Verizon, Pt. I

Verizon, an ISP, challenged RIAA’s practices.

In two decisions, issued in early 2003, the U.S. District Court for the District of Columbia, ruled in favour of the RIAA, approving of the use of DMCA subpoena process to compel disclosure. See, 240 F. Supp. 2d 24 and 257 F. Supp. 2d 244.

RIAA Wins!

RIAA v. Verizon, Part II Verizon appealed - U.S. Court of Appeals for D.C. reversed the

District Court decision, ruled in favour of Verizon. RIAA could no longer use streamlined subpoena process. Verizon not hosting the content, only an access provider.

As such, Verizon and other ISPs were protected by the Safe Harbour provisions of DMCA § 512(c).

RIAA must use DMCA’s Notice and Takedown provisions in tandem with subpoena process.

See: Recording Indus. Ass'n of Am., Inc. v. Verizon Internet Servs., 351 F.3d 1229, 1236 (D.C. Cir. 2003).

Verizon Prevails

What About in Europe?

Part III – Privacy Issues and Online Behavioural Advertising, or

Don’t Google Your Old Girlfriend!!

AutoDelete?

Microsoft/Ask.com Promise Search Privacy Reforms

U.S. Government Role?

Is This Enough? A Good Start?

Or Just More Paralysis By Analysis?

Thank you again, Kia Ora!

Philip J. Greene

InternetNZ Senior Research Fellow in Cyberlaw

Victoria University School of Law

Wellington, NZ

Philip.greene@vuw.ac.nz