[Info] German Court Rules on ICANN Request to Preserve WHOIS Data

[Stephanie Perrin]

I actually spent quite a bit of time examining this whole "cultural 
differences" issue when working on my dissertation on ICANN.  As a 
Canadian, I believe there is a difference in the way we approach data 
protection issues in this country despite being swamped with US power 
and influence.  We managed, for instance, to get data protection law in 
place for the private sector.  However, nailing that elusive difference 
down is very difficult, I think, and as Monika says the overwhelming 
influence of economic considerations, path dependency and institutional 
realities that are difficult to change at ICANN define the current 
situation in my view.  However, the stupidity, obstinacy and poor risk 
management of the ICANN organization are breath-taking, and I will 
confess the question WHY does keep arising.  It is not as if anyone who 
has worked in the data protection arena has never seen corporate 
reluctance to add expense or take on liability risk....far from it, 
those are constants.


The conclusion I reached is that ICANN has catered to the drivers of the 
US economy in the Information society, and it accommodated law 
enforcement interests who are always seeking ways around administrative 
impediments to access to personal data.  The GAC, in my view, has never 
stepped up to its role in enforcing data protection law, but instead has 
facilitated law enforcement agencies' desires to get around their 
constitutional protections for individuals under criminal law and 
fundamental rights instruments....and that desire, unfortunately, 
appears to be shared by all law enforcement agencies represented at 
ICANN, including the EU reps.  Now that is a cultural difference that 
could be examined fruitfully, I suspect.


As far as the uniqueness of the US approach to data 
protection....commentators on the US lack of respect for personal 
privacy have been around for centuries now, from Dickens to de 
Toqueville to Boorstin. I think it is fascinating, so still worthy of 
much research.  I think Priscilla Regan has written about it very 
persuasively, and the differences are too important to ignore, if we 
care about data protection and the autonomy of the individual in a 
global society.  But I do tend to agree that at ICANN....it's more about 
the $$$.

Stephanie Perrin

On 2018-06-04 03:44, Zalnieriute, Monika wrote:
>
> I agree with Milton, that 'cultural differences' explanation does not 
> explain a lot not only in the WHOIS context, but I would also add that 
> it misses the point in the international data privacy law more 
> generally. Political economy considerations, institutional analysis 
> and path dependency explains much more. But nonetheless 'cultaralist 
> explanations' are often used to obscure the matters, and are very 
> popular at least in the legal scholarship. As it does not require any 
> deeper analysis: 'just you know, oh, there are cultural differences...'.
>
>
> Kind regards,
>
> Dr. Monika Zalnieriute
>
> Post-Doctoral Fellow @ Melbourne Law School |
>
> The University of Melbourne I law.unimelb.edu.au I
>
> 185 Pelham St, Carlton VIC 3053, Australia I
>
> Visiting Fellow @ Center for Media, Data and Society I
>
> Central European University I cmds.ceu.edu I
>
> Representative @ Executive Committee I
>
> Non-Commercial Stakeholder Group I ICANN I icann.org I
>
>
>
>
>
>
>
>
>
>
>
> ------------------------------------------------------------------------
> *From:* NCSG-Discuss <NCSG-DISCUSS at LISTSERV.SYR.EDU> on behalf of 
> Mueller, Milton L <milton at GATECH.EDU>
> *Sent:* Monday, June 4, 2018 5:31 AM
> *To:* NCSG-DISCUSS at LISTSERV.SYR.EDU
> *Subject:* Re: [Info] German Court Rules on ICANN Request to Preserve 
> WHOIS Data
> Pino
>
> > Trying to deny cultural
> > differences is the beginning of the end of any form of evolutive
> > cooperation among people.
>
> What? No one denied that cultural differences exist - indeed, there 
> are massive cultural differences within Europe, and between regions of 
> the US.
>
> I am simply telling you that the so-called cultural differences have 
> little to do with who lines up on which side of the Whois debate in 
> ICANN. Economic interests and institutional positions explain a lot 
> more. We gain little understanding of the situation by talking about 
> "cultural differences" except that you piss off all the non-Europeans 
> and convey a kind of smug superiority which isn't earned.
>
> Theories have to stand the test of empirical reality. Before advancing 
> your "cultural difference" theory please explain why all the European 
> GAC members called upon ICANN to retain all current Whois data 
> collection, for example. Does your theory explain this fact? Are they 
> somehow not part of European culture? Did they not get the memo? By 
> the way do you know which GAC statements I am referring to? Do you 
> know what the GAC is?
>
> Stereotypes such as "USA approach to political science: avoiding any 
> divisive subject trying to force political correctness into 
> everything" = just bizarre. Pay attention to what is actually 
> happening here. Listen to what people actually say, as individuals. 
> Look beyond crude pre-conceived generalizations about culture, people, 
> academic disciplines and national origin. You've got a lot to learn 
> about the ICANN environment and as you learn more I will be more than 
> happy to engage in "debate and strong rhetoric" with you.
>
> --MM
>
> > -----Original Message-----
> > From: NCSG-Discuss [mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of
> > Moritz Bartl
> > Sent: Sunday, June 3, 2018 9:52 PM
> > To: NCSG-DISCUSS at LISTSERV.SYR.EDU
> > Subject: Re: [Info] German Court Rules on ICANN Request to Preserve 
> WHOIS
> > Data
> >
> > On 04.06.2018 01:15, Giuseppe De Francesco wrote:
> Only by dealing with who we are we can
> > > overcome what is divisive to learn cooperation. This is one of the
> > > problems in USA approach to political science: avoiding any divisive
> > > subject trying to force political correctness into everything. This as
> > > well is due to strong cultural differences: Mediterranean
> > > civilizations thrive in debate and love strong rethorics applied to
> > > arguing cases without hiding differences. Avoiding to talk about
> > > differences is not helpful, actually it will cause even wider divides
> > > on the long run because each side will be in denioal until can no 
> longer keep
> > it silent.
> > > This is a major problem in how public policies are analysed drafted,
> > > at least this is my opinion.
> >
> > Thanks Pino, I agree wholeheartedly with this and your earlier 
> statement.
> >
> > While I'm at it, I want to congratulate the court on its 
> well-informed decision.
> > Sorry, but I don't know if I have to laugh or cry at the ICANN 
> statement about
> > not achieving "the clarity that ICANN was seeking".
> > Sorry, but who is the individual who wrote this? Do they think 
> people are
> > stupid?
> >
> > Greetings to everyone from Earth, Europe, Germany, Bavaria, Augsburg,
> >
> > Moritz
>
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