[Gnso-epdp-team] EPDP Recommendation 11 - email list discussion
Theo Geurts
gtheo at xs4all.nl
Wed Jan 23 14:53:34 UTC 2019
Thanks, Alan,
From my point of view, your observations are all accurate including the
registrar ones.
And yes you cannot pick a random number for retention. There is a
purpose, you balance it, and then you get your period for retention.
Your purpose and how you balanced it are part of your documentation to
meet the requirement of Art 5.2. Though usually, you cover this process
through Art 35.
Theo
On 23-1-2019 15:38, Alan Woods wrote:
> Dear all, (noted these are my own musings and my registry colleagues
> may have additional / different thoughts and comments)
>
> *1) Retention period of 1 year *
> Can we be clear that where data is retained for 1 year, and such an
> extra retention period is stated as being for use under the TDRP, than
> retained data may *_ONLY_* be used for that purpose (See the RYSG
> comment). Based upon this recommendation, should a Registrar use the
> retained data for any other purpose, the will be doing so under their
> own controllership stem (Hence why the clarification in the NOTE is
> exceptionally important.)
>
> To be even clearer, ICANN would *NOT* be able to use the retained data
> for any other purpose other than the TDRP under the current
> recommendation. This is the core of what the EDPB have repeatedly told
> ICANN, you can't just arbitrarily pick a retention period, the
> retention period just be reasoned and the use of that data must be
> grounded to that reason. The EDPB will be equally as upset about
> setting a retention period based on one process,then using data for
> something wholly unrelated to that process.
>
> Should we persist I see the issue is as follows:
>
> ICANN (Compliance or otherwise) does not hold the data themselves, and
> this data will be requested from the registrar. This disclosure
> request will state the reason as X purpose; unless the stated purpose
> is for in furtherance of the TDRP, a registrar should (read MUST)
> decline to disclose, as the disclosure is incompatible with the stated
> reason for retention (i.e. the TDRP)
>
> Only ICANN, have the knowledge of why they require retention for
> specific processes and procedures. They must provide the base policy
> reason as to why they require, in the contract, a retention period.
> The TDRP is a good single example, but it is one single example and
> ICANN, should then need it for any other reason, must tell the ePDP
> what, why and for how long the data is necessary.
>
>
> 2) R*etention of additional data elements *
> *
> *
> *I would believe the minimal data elements must be retained, and only
> then related to the specific purpose for the retention. *
>
> I do not agree with Trang's assessment of the necessity for billing
> contacts and in particular the interpretation of "requires a registrar
> to receive a reasonable assurance of payment prior to activating a
> domain registration." In this instance the proof of assurance should
> not, considering data protection, rise to the actual provision of
> actual billing data but would more functionally refer to, in a normal
> business sense, assurances that the registrar remains solvent and this
> does not rise to an ICANN expectation that the registrant ultimately
> pays (that's the registrar's business) !
>
> Re the other elements noted - I would quickly note the following:
>
> * Billing contacts - I defer to my registrar colleagues friends here
> but ICANN does not ever bill registrants. Should a registrar fail
> and registrations are transferred, then the gaining registrar will
> need to establish contact again and discern should the registrant
> wish to continue the relationship with the Registrar. I would
> opine that this is achieved via registrant contact and a private
> contract between registrar and registrant. Frankly it has nothing
> to do with ICANN and is none of their data processing business.
>
> * (RAA 3.4.1.5) the name, postal address, e-mail address, and voice
> telephone number provided by the customer of any privacy service
> or licensee of any proxy registration service, in each case,
> offered or made available by Registrar or its Affiliates in
> connection with each registration.
> * Full Contact Information for Privacy Proxy Registrations
>
> For both the above, again I defer to my registrar colleagues, but
> again, this data is currently completely remote from ICANN's
> sphere of influence. The registrant makes a private contract with
> a P&P provider. Such a contract will have stipulations in the
> event of a failure of the P&P provider. Use of such providers is
> at the risk of the registrant, and ICANN cannot interfere here. IF
> a P&P gets sunk, the registrant will need to deal with their
> choice and claim relief under their contract etc. - it may be
> messy but ICANN cannot claim to have a right to this underlying
> data, as their influence extends to only the data of the
> registrant (which in this instance will be presented as the P&P
> holder). ICANN may claim further power via appropriate policy
> development perhaps but regardless, surely this is a matter for
> the PPSAI.
>
> * Full Contact Information for Registrants who have Consented to
> Full Display -This is a matter for an assessment of what data is
> needed for the reason basing the retention. i.e. what data is
> need currently for performance of the TDRP - nothing else.
> Again ICANN should identify and justify the data elements
> necessary for this. The ePDP cannot be expected to do this for
> ICANN.
>
> * (Data Retention Specification 1.1.7.) Types of domain name
> services purchased for use in connection with the Registration
> * (Data Retention Specification 1.1.8.) To the extent collected by
> Registrar, "card on file," current period third party transaction
> number, or other recurring payment data.
> * (Data Retention Specification 1.2.1) Information regarding the
> means and source of payment reasonably necessary for the Registrar
> to process the Registration transaction, or a transaction number
> provided by a third party payment processor;
> * (Data Retention Specification 1.2.2) Log files, billing records
> and, to the extent collection and maintenance of such records is
> commercially practicable or consistent with industry-wide
> generally accepted standard practices within the industries in
> which Registrar operates, other records containing communications
> source and destination information, including, depending on the
> method of transmission and without limitation: (1) Source IP
> address, HTTP headers, (2) the telephone, text, or fax number; and
> (3) email address, Skype handle, or instant messaging identifier,
> associated with communications between Registrar and the
> registrant about the Registration; and
> * (Data Retention Specification 1.2.3 ) Log files and, to the extent
> collection and maintenance of such records is commercially
> practicable or consistent with industry-wide generally accepted
> standard practices within the industries in which Registrar
> operates, other records associated with the Registration
> containing dates, times, and time zones of communications and
> sessions, including initial registration.
>
> I'm minded to wholly defer this particular ... issue... to our
> registrar colleagues. But to the Casual observer none of this data
> is in ICANN's remit to retain. This is all part of the
> private contract with the registrant and registrar and ICANN has
> no legal claim, basis or expectation to this data. If ICANN
> believes that they have a right to this data, then it is for them
> to assert it and justify why they need to mandate something as the
> harvesting and retention to data wholly unrelated to the
> registration of a domain name. Let us provide a simple example If
> a registrant doesn't pay the registrar for a domain (declined card
> or other), ICANN will still likely get paid because that is the
> contract they have with the CPs; the registry will still get paid
> as that is the contract with the registrar. Neither registry or
> registrar may, nor should go after the registrant for such a
> payment, as we have no right to do so as that is not the intended
> legal nature of our relationship. Therefore why would ICANN have a
> right to the information regarding cards on file or client
> communications?
>
> * (RAA 3.4.2.1) the submission date and time, and the content, of
> all registration data (including updates) submitted in electronic
> form to the Registry Operator(s);
> * (RAA 3.4.2.2) all written communications constituting registration
> applications, confirmations, modifications, or terminations and
> related correspondence with Registered Name Holders, including
> registration contracts;
> * (RAA 3.4.2.3) records of the accounts of all Registered Name
> Holders with Registrar.
>
> These are all data that ICANN could possibly mandate. But that
> being said, this all seems aimed at litigation. These are elements
> that a Registrar, in its sole controllership as a business, would
> be crazy not to retain for the purposes of litigation impending or
> actual etc. Regardless, in truth I can't see how ICANN would EVER
> have such data disclosed to them unless by court order or
> equivalent where there is a dispute between Rr and ICANN.
>
> I think we need to be clear as to necessity here and IMHO, a lot of
> these elements are simply overreach.
>
> Kind regards,
>
> Alan
>
>
>
>
>
> Donuts Inc. <http://donuts.domains>
> Alan Woods
> Senior Compliance & Policy Manager, Donuts Inc.
> ------------------------------------------------------------------------
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> 15-18 Earlsfort Terrace
> Dublin 2, County Dublin
> Ireland
>
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> <https://www.linkedin.com/company/donuts-inc>
>
>
> Please NOTE: This electronic message, including any attachments, may
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>
> On Tue, Jan 22, 2019 at 11:43 PM Trang Nguyen <trang.nguyen at icann.org
> <mailto:trang.nguyen at icann.org>> wrote:
>
> Dear All,
>
> Regarding data retention, ICANN org has previously identified a
> question and some areas that we wanted to flag for the EPDP Team,
> which we sent to the mailing list on 22 December 2018
> (https://mm.icann.org/pipermail/gnso-epdp-team/2018-December/001125.html).
> We are flagging them here again for the EPDP Team’s
> consideration/discussion as you work to finalize the recommendation.
>
> The question/flags are:
>
> 1. There are several data elements that are currently required to
> be retained, but are not addressed in the Initial Report.
> Should the retention obligation for these data elements remain
> or be discontinued?
> 2. If billing and payment-related data is no longer required to
> be collected, retained, and (with respect to billing contact
> data) escrowed, this could impact continuity of service to
> registrants and availability of this data in the event of a
> payment dispute or related investigation. ICANN org also notes
> that the ICANN Registrar Accreditation Policy
> <https://www.icann.org/resources/pages/policy-statement-2012-02-25-en>
> requires a registrar to receive a reasonable assurance of
> payment prior to activating a domain registration.
>
> Data elements currently required to be collected, but are not
> addressed in the Initial Report include:
>
> * Billing/Other Contact ID (where available)
> * Billing/Other Contact Name (where available)
> * Billing/Other Contact Street (where available)
> * Billing/Other Contact City (where available)
> * Billing/Other Contact State/Province (where available)
> * Billing/Other Contact Postal Code (where available)
> * Billing/Other Contact Country (where available)
> * Billing/Other Contact Email (where available)
> * Billing/Other Contact Phone (where available)
> * Billing/Other Contact Fax (where available)
> * (RAA 3.4.1.5) the name, postal address, e-mail address, and
> voice telephone number provided by the customer of any privacy
> service or licensee of any proxy registration service, in each
> case, offered or made available by Registrar or its Affiliates
> in connection with each registration.
> * Full Contact Information for Privacy Proxy Registrations
> * Full Contact Information for Registrants who have Consented to
> Full Display
> * (Data Retention Specification 1.1.7.) Types of domain name
> services purchased for use in connection with the Registration
> * (Data Retention Specification 1.1.8.) To the extent collected
> by Registrar, "card on file," current period third party
> transaction number, or other recurring payment data.
> * (Data Retention Specification 1.2.1) Information regarding the
> means and source of payment reasonably necessary for the
> Registrar to process the Registration transaction, or a
> transaction number provided by a third party payment processor;
> * (Data Retention Specification 1.2.2) Log files, billing
> records and, to the extent collection and maintenance of such
> records is commercially practicable or consistent with
> industry-wide generally accepted standard practices within the
> industries in which Registrar operates, other records
> containing communications source and destination information,
> including, depending on the method of transmission and without
> limitation: (1) Source IP address, HTTP headers, (2) the
> telephone, text, or fax number; and (3) email address, Skype
> handle, or instant messaging identifier, associated with
> communications between Registrar and the registrant about the
> Registration; and
> * (Data Retention Specification 1.2.3 ) Log files and, to the
> extent collection and maintenance of such records is
> commercially practicable or consistent with industry-wide
> generally accepted standard practices within the industries in
> which Registrar operates, other records associated with the
> Registration containing dates, times, and time zones of
> communications and sessions, including initial registration.
> * (RAA 3.4.2.1) the submission date and time, and the content,
> of all registration data (including updates) submitted in
> electronic form to the Registry Operator(s);
> * (RAA 3.4.2.2) all written communications constituting
> registration applications, confirmations, modifications, or
> terminations and related correspondence with Registered Name
> Holders, including registration contracts;
> * (RAA 3.4.2.3) records of the accounts of all Registered Name
> Holders with Registrar.
>
> Best,
>
> Dan and Trang
>
> ICANN Org Liaisons
>
> *From: *Gnso-epdp-team <gnso-epdp-team-bounces at icann.org
> <mailto:gnso-epdp-team-bounces at icann.org>> on behalf of Kurt Pritz
> <kurt at kjpritz.com <mailto:kurt at kjpritz.com>>
> *Date: *Tuesday, January 22, 2019 at 1:20 PM
> *To: *EPDP <gnso-epdp-team at icann.org
> <mailto:gnso-epdp-team at icann.org>>
> *Subject: *[Gnso-epdp-team] EPDP Recommendation 11 - email list
> discussion
>
> Hi Everyone:
>
> There were several items (Recommendations) that we agreed to
> discuss via email with the idea that we could close on them
> without taking time for discussion in a meeting. This email
> concerns Recommendation 11, addressing the data retention period.
>
> *The current recommendation states:*
>
> The EPDP Team recommends that Registrars are required to retain
> the herein-specified data elements for a period of one year
> following the life of the registration. This retention period
> conforms to the specific statute of limitations within the
> Transfer Dispute Resolution Policy (“TDRP”).
>
> *Small Team Discussion*
>
> (1)The small team noted that “statute of limitation” as used in
> the Recommendation was probably an inappropriate use of a legal
> term of art and should be replaced with more appropriate language.
> This point is addressed in the proposed updated Recommendation below.
>
> (2)Some on the small team advocated for a longer retention period,
> suggesting that a longer retention period could be anchored in
> existing ICANN policy requirements or other outside requirements.
> (The current retention period is anchored is the Transfer DRP as
> the “tall pole” among all the other purposes for processing
> registration data.) The updated language below, proposed by small
> team B, clarifies that the proposed data retention period is for
> ICANN related requirements and different retention periods may
> apply as a result of local requirements or circumstances.
>
> *Proposed updated language recommendation 11 – data retention*
>
> The EPDP Team recommends that: Registrars are required to retain
> the herein-specified data elements for ICANN-related requirements
> for a period of one year following the life of registration. This
> minimum retention period is consistent the requirements of the
> Transfer Dispute Resolution Procedure, which has the longest
> retention requirement of any of the enumerated Purposes for
> Processing Registration Data.
>
> Note, Contracted Parties may have needs or requirements for longer
> retention periods in line with local law or other requirements.
> This is not prohibited by this language. Similarly, should local
> law prevent retention for the period of one year, there are waiver
> procedures in place that can address such situations.
>
> *Actions*
>
> Those supporting a retention greater than one year generally
> should submit rationale for such a retention period including
> related ICANN policy requirements to which this could be anchored.
> These submissions will be discussed via email.
>
> Submit comments for support for the amended Recommendation
> or requesting edits to the recommendation with rationale.
>
> Deadline: Friday, 24 January, additional email discussion might
> follow depending on responses.
>
> Thank you and best regards,
>
> Kurt
>
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