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Whois? No, Whowas: Incoming Euro privacy rules torpedo domain registration system

Alexander Hanff 1

And you would be wrong for example:

6.1c - There is no legal obligation for Whois - it is entirely ICANN policy and nothing to do with law.

6.1e - Public Interest would not cover a domain registration Whois database

You should perhaps read some of the Recitals and existing case law.

The article is actually quire accurate - GDPR does (in my opinion) make existing Whois databases unlawful and I have discussed as much with 2 national tld registrars recently. The key issues you have to look at are whether or not requiring the data be public is proportional to the fundamental rights of the data subject (Art. 8 of the EU Charter) and whether they are necessary. This fails immediately at the first test but even if it didn't, there is no necessity for a public whois database in order for domain registrations to work - they would continue to work even without such public databases. For example, with regards to law enforcement access - it would still be available with the relevant safeguards in place (such as requiring a warrant or court order).

I was on a committee/consultation a few years back looking at the issue of shutting down "illegal" content by seizing domains which was run by the UK registrar and you would be shocked to hear the methods used by the police to avoid having to use the judiciary as well as how many false positives there are.

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