[Gnso-epdp-team] Geographic Basis - Recommendation for inclusion in the Final Report

[Kavouss Arasteh]

 Dear Kurt
Thank you again for the text,
I suggest to amend the text as follows:



*EPDP Team Recommendation (a new recommendation as there was none in the
Initial Report)*The EPDP Team recommends that the existing requirements of
§§ 2.1 and 3 of the  Temporary Specification remain in place, i.e.,
contracted parties should (and are) permitted/* ,to the extent practicable
,*differentiate *may  ,to the extent praticable, *differentiate between
registrants on a geographic basis, but are not obligated to do so.

Based on the legal guidance that is provided on this topic:

   - The EPDP Team may  reconsider( i*ntends to consider * this
   recommendation in phase 2 of its work,* i.e. to study  *the feasibility
   conditions and methodology for the development of a rule set for making
   decisions on geographic distinctions
   - Regards
   - Kavouss


On Fri, Jan 25, 2019 at 5:06 PM Kurt Pritz <kurt at kjpritz.com> wrote:

> Hi Everyone:
>
> With the ongoing goal of progressing issues via email, the leadership and
> support  teams have considered the review of public comment made during
> the recent plenary conference call and suggests the following language to
> capture the agreement in principle that was developed on making Geographic
> Distinctions.
>
> Based on that discussion the recommendation below is proposed for EPDP
> Team consideration.
>
> *Team Discussion*
>
> The Initial Report did not contain a Recommendation for the handling of
> personal data based on geographical considerations. Instead, the
> Initial Report asked three questions so that the community input could
> provide a guide for the EPDP Teams deliberations leading to the Final
> Report. Those questions were:
>
> h)         Applicability of Data Processing Requirements
>
> h1)     Should Registry Operators and Registrars (“Contracted Parties”) be
> permitted or required to differentiate between registrants on a geographic
> basis?
>
> h2)     Is there a legal basis for Contracted Parties to differentiate
> between registrants on a geographic basis?
>
>
> The EPDP Team considered the public comment and developed the following
> thoughts in its deliberations in addressing the charter questions:
>
>    - The EPDP Team discussed this extensively (as documented in the
>    Initial Report) as well as in the context of the review on the public
>    comments received on the Initial Report. In relation to part
>    of charter question h1, the EPDP Team agrees that contracted parties should
>    be (and are) permitted to differentiate between registrants on a geographic
>    basis;
>    - However, the EPDP Team members have divergent views on whether
>    differentiation on a geographic basis should be required.
>    - Recognizing that ICANN is a Data Controller in many scenarios and
>    that ICANN may be considered “established” in Europe (within the meaning of
>    the GDPR), the EPDP Team discussed whether those factors would have an
>    effect upon the discussion and determining GDPR-compliant outcomes.
>    It became clear that legal guidance in relation to the applicability of
>    GDPR in the context of ICANN having an ‘establishment’ in Europe could
>    further inform requirements.
>    - The EPDP Team also discussed the possibility of developing a set of
>    rules for guiding the making of geographical distinctions in an
>    GDPR-compliant manner (akin to the EWG hypothesized “rules engine”).
>    The Team agreed that creating this set of rules was a complex task (just as
>    it would be for individual registrars) and agreed such development could
>    not occur within the remit of this Phase I EPDP. Such a development would
>    also be dependent on the response to the aforementioned legal guidance.
>
>
>
> *EPDP Team Recommendation (a new recommendation as there was none in the
> Initial Report)*
> The EPDP Team recommends that the existing requirements of §§ 2.1 and 3 of
> the  Temporary Specification remain in place, i.e., contracted parties
> should (and are) permitted to differentiate between registrants on a
> geographic basis, but are not obligated to do so.
>
> Based on the legal guidance that is provided on this topic:
>
>    - The EPDP Team may reconsider this recommendation in phase 2 of its
>    work, an
>    - Consider the feasibility conditions and methodology for the
>    development of a rule set for making decisions on geographic distinctions.
>
>
>
> *Action*
>
> Please indicate on the mailing list whether you have any concerns about
> these modifications and/or what other aspects of this recommendation should
> be discussed. If there are additional questions for ICANN Compliance that
> would serve to inform the deliberations on this recommendation, please
> share these also.
>
> Deadline: Tuesday, 29 January, additional email discussion might follow
> depending on responses.
>
>
> Best regards,
>
> Kurt
>
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