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[nc-whois] RE: Privacy Issues Report: Section on Privacy, Free Speech and Anonymity
- To: "Ruchika Agrawal" <agrawal@epic.org>, "NC-WHOIS (E-mail)" <nc-whois@dnso.org>
- Subject: [nc-whois] RE: Privacy Issues Report: Section on Privacy, Free Speech and Anonymity
- From: "Cade,Marilyn S - LGCRP" <mcade@att.com>
- Date: Tue, 11 Mar 2003 17:36:48 -0500
- Sender: owner-nc-whois@dnso.org
- Thread-Index: AcLoA0As0MKLCV30QzCz2PG67qPn9gAG27dA
- Thread-Topic: Privacy Issues Report: Section on Privacy, Free Speech and Anonymity
Thanks, Ruchika.
Woops, I erred on one of the references.
It's fixed below.
Sorry, Ruchika
Date: Tue, 11 Mar 2003 14:14:17
-0500 To: "Cade,Marilyn S - LGCRP" <mcade@att.com>, "NC-WHOIS
(E-mail)" <nc-whois@dnso.org> From: Ruchika Agrawal
<agrawal@epic.org> Subject: Privacy Issues Report: Section on
Privacy, Free Speech and Anonymity Bcc: Marc Rotenberg
<rotenberg@epic.org>
Dear All:
Included below are the
paragraphs -- excerpted from the privacy issues report submitted by the
non-commercial constituency (see
http://www.dnso.org/clubpublic/nc-whois/Arc00/msg01003.html for the full
report) -- on the critical relationship among privacy, free speech and
anonymity.
For your convenience, the other contributions I've
submitted to the WHOIS Task Force are: - paragraphs on OECD
Privacy Guidelines available via http://www.dnso.org/clubpublic/nc-whois/Arc00/msg00984.html
- paragraphs on Contribution Of Globally, Publicly Accessible WHOIS
Information To Identity Theft And Other Fraud available via http://www.dnso.org/clubpublic/nc-whois/Arc00/msg00985.html
Sincerely, Ruchika
------------
4
Free Speech, Privacy and Anonymity
[1]
On
December 10, 1948, the General Assembly of the United Nations adopted and
proclaimed the Universal Declaration of Human Rights, which enumerates a
list of rights to which all people are entitled. [2] This list
includes free speech:
- ARTICLE 19. Everyone has the right to freedom of opinion
and expression; this right includes freedom to hold opinions without
interference and to seek, receive and impart information and ideas through
any media and regardless of frontiers.
It is well understood that
the Internet – including chat rooms, email, newsgroups, websites, and domain
names – is an unprecedented media through which many people exercise their
free speech, including controversial religious and political
speech.
4.1 The pinnacle of privacy is
anonymity.
In
the context of the OECD Privacy Guidelines, privacy may be understood as
control of your own personal information, control over what others (other
people, private organizations, and the government) know about you, and
control over how others may use or exploit your personal information.
Furthermore, policies and practices that respect privacy aim at minimizing
the collection of personally identifiable information. Then
intuitively, the starting point of privacy is anonymity, where no personally
identifiable information is collected. Compelling the disclosure of
personally identifiable information, as current WHOIS policies dictate,
directly undermines privacy.
4.2 The critical relationship
between privacy, anonymity, free speech, and Internet free speech should not
be disregarded.
[1]
Privacy
is critical to free speech. As a simplified explanation, if speakers
are compelled to disclose their identity, speakers are reluctant to fully
express their speech for fear of persecution. We established that the
pinnacle of privacy is anonymity; hence, as a corollary, anonymity is
critical for individuals to achieve their fullest ability to exercise free
speech.
The
United States courts in particular have recognized the importance of
Internet free speech and the right of anonymity. [3] The Supreme
Court's decision in Reno v. ACLU offers an opinion on why individuals and
organizations would want to display material through the World Wide Web:
- Through the use of chat rooms, any person with a phone line can become
a town crier with a voice that resonates farther than it could from any
soapbox. Through the use of Web pages, mail exploders, and newsgroups, the
same individual can become a pamphleteer. [4]
For the
purposes of political, artistic or controversial speech, the Internet is an
unprecedented opportunity to reach a large audience at a relatively small
cost. [5]
The
one-to-many characteristics of the Internet through which an individual's
speech can reach a global audience are further enhanced by the protection of
anonymity. [5] In McIntyre v. Ohio Elections Commission, the
Supreme Court upheld individuals’ ability to distribute anonymous political
leaflets and found:
- Anonymity is a shield from the tyranny of the majority. It thus
exemplifies the purpose behind the Bill of Rights, and of the First
Amendment in particular: to protect unpopular individuals from
retaliation; and their ideas from suppression; at the hand of an
intolerant society. [6]
Hence, the Supreme Court upheld the
importance of anonymity for individuals to achieve their fullest ability to
exercise free speech.
4.3 Requiring WHOIS data and then publicly
disclosing the data have serious implications on free
speech. Under
current WHOIS policies and practices, an individual who wants to create her
own website must publicly disclose personal information and cannot remain
anonymous. [3] ICANN’s Registrar Accreditation Agreement, which
requires registrants to supply accurate WHOIS data or otherwise forgo their
domain name registration, places an unacceptable burden on the ability of
individuals to maintain their anonymity and thus their fullest ability to
exercise free speech on the Internet. [1]
4.4 Anonymizing proxy
servers are not an adequate alternative.
[1]
The
establishment of an intermediary between the operator of a website and the
general public may avoid short-term identification of the actual user of a
particular domain name. However, for the most controversial artistic,
political and religious speech, it will be difficult for an online speaker
to find an intermediary that will offer to have her own identity made public
in lieu of the actual speaker. In addition, the third-party licensing
provision is unambiguous in stating that the intermediary will be directly
liable for use of the domain name by the actual
user.
REFERENCES
[1] Comments of the Public Interest
Registry, the not-for-profit corporation that manages the .ORG registry, on
the Final Report on Whois Accuracy and Bulk Access of the Whois Task Force
of the Generic Names Supporting Organization (hereinafter “PIR Comments on
WHOIS”) accessible via http://gnso.icann.org/dnso/dnsocomments/comments-whois/Arc03/pdf00000.pdf.
[2]
Marc Rotenberg, The Privacy Law Sourcebook: United States Law,
International Law, and Recent Developments 367-394 (EPIC 2002) (“Universal
Declaration of Human Rights (1948)”)
[3] Daniel J. Solove and
Marc Rotenberg, Information Privacy Law 427-37 (Aspen Publishers2003)
(“Anonymity in Cyberspace”).
[4] ACLU v. Reno, 521 U.S. 844,
896-97 (1997).
[5] Letter submitted by EPIC to U.S. House
of Representatives Committee on the Judiciary Subcommittee on Courts, the
Internet and Intellectual Property, July 12, 2001, http://www.epic.org/privacy/internet/whois_0701.html.
[6] McIntyre v. Ohio Elections Commission, 514 U.S. 334, 357
(1995).
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