[Gnso-ppsai-pdp-wg] A slightly revised proposed approachfor reviewing public comments

James Gannon james at cyberinvasion.net
Thu Jul 23 09:48:22 UTC 2015 

Speaking very specifically to the LEA access issues:

It's important to note number of things when we are speaking in relation to Law Enforcement Access. There are two issues at hand for P/P, wants and needs.

Law Enforcement has a need for Privacy Proxy providers to comply with the duly authorized requests of law enforcement through a national warrant, court order or other official legal vehicle including MLATs or other international mechanisms for interagency cooperation. I don't think anyone would claim that we are attempting to hinder or complicate this need. And indeed by formalizing the P/P world I would argue we are actively helping them in this area.

Law enforcement has a want to gain easier access to the details of registrants who are utilizing P/P services without having to go through the traditional means of access listed above. It's important to note that this is not a need. We are not claiming that LEAs will never have access to a registrants data if they follow the due course process in their respective jurisdictions. There are valid points from Bobby and Im sure others who will say that these processes are too slow for certain investigations. And I am sure that that may be the case for certain jurisdictions, although not in others. However with respect I suggest that this is an issue for national legislatures to address. We are not an elected legislative body at ICANN, and I do not believe that it is our job to fix the problem of speed of a warrant process for a Law Enforcement agency. 

By wading into this extremely complex matter of international and national law I believe that we are stepping outside our mandate and outside of the wishes of the greater ICANN community. We do not have the authority or experience to recreate a system that already exists, a system whereby LEAs are able to access the data that they require in order to complete their work, and work which is absolutely critical to national safety. However if the argument is that the nationally and internationally recognized system of law to gain access to personal information is not fast enough for the LEA community then respectfully I suggest that that is an issue to be dealt with at a national legislation and MLAT level, not at ICANN working group level.

As Volker noted below, if an LEA needs a faster system, then it's up to them to request that from their nation states of residence as none of us are asking for anything more than due process to be followed and that we do not attempt to create methods of access that are essentially a side road around the rule of law that we live under. 

To op-ed slightly on this, we have seen what happens when side roads are created with the NSA and public surveillance scandals in the USA, there is no public appetite internationally to circumvent the rule of law when it comes to people's privacy. I hope that we won't be party to creating another side road that no one wants to have.

-James Gannon

-----Original Message-----
From: gnso-ppsai-pdp-wg-bounces at icann.org [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] On Behalf Of Volker Greimann
Sent: Thursday, July 23, 2015 10:01 AM
To: gnso-ppsai-pdp-wg at icann.org
Subject: Re: [Gnso-ppsai-pdp-wg] A slightly revised proposed approachfor reviewing public comments

Hi Kiran,

while it may not be a 15 minute thing, it is the legal process their legislative has deemed fit to place in front of them being able to demand anything they want. If the individual governments wanted to change that process and give them instant access, they would (and do (looking at the NSA folks)).

Volker

Am 22.07.2015 um 05:59 schrieb Kiran Malancharuvil:
> Barry,
>
> Thanks for your comments. I think you would be interested in the past interventions of Dick Leaning, who was the LE representative on this group until his retirement from Europol on July 1st of this year, and in the public safety working group comment drafted by Bobby Flaim from the FBI and Loreen Kapin from the FTC (with Dick's input). They have statedon multiple occasions that getting a warrant isn't a 15 minute thing. I'll let them speak for themselves but suffice to say that they prefer a system that doesn't require a warrant.
>
> Anyway, I just wanted to point out that they've given their recommendations formally.
>
> Happy lurking!
>
> Kiran
>
> Kiran Malancharuvil
> Policy Counselor
> MarkMonitor
> 415-419-9138 (m)
>
> Sent from my mobile, please excuse any typos.
>
>> On Jul 21, 2015, at 8:12 PM, Barry Shein <bzs at world.std.com> wrote:
>>
>>
>> I apologize for posting at all since I'm not much involved but I'm 
>> sort of surprised at the level of speculation about law enforcement.
>>
>> As an ISP I've been in the middle of this sort of thing.
>>
>> In a nutshell there are large and huge and tiny LEAs and they're all 
>> quite different in their response.
>>
>> I've dealt with the FBI who can turn out a proper warrant in about 15 
>> minutes and college campus police (colleges you've heard of) who 
>> could be incredibly unprofessional -- one threatened, and I mean 
>> angrily threatened, that if I didn't produce the credentials 
>> immediately (I stood my ground for a warrant, it was basically 
>> cyberstalking) they would "show up at my office". I said they were 
>> welcome, I'd make the coffee, and got in touch with the university's 
>> general counsel. I could post that interchange but as you can imagine 
>> they were horribly embarrassed.
>>
>> Why not get someone from an LEA or two involved even informally 
>> rather than speculate?
>>
>> So much of this is in the name of law enforcement yet my impression 
>> is that law enforcement per se hasn't been engaged.
>>
>> A DA wouldn't hurt either since they have to build the cases and 
>> wield the prosecutorial discretion which is really what you're 
>> ultimately trying to support.
>>
>> Sorry, I'll go back to lurking.
>>
>> -- 
>>         -Barry Shein
>>
>> The World              | bzs at TheWorld.com           | http://www.TheWorld.com
>> Purveyors to the Trade | Voice: 800-THE-WRLD        | Dial-Up: US, PR, Canada
>> Software Tool & Die    | Public Access Internet     | SINCE 1989     *oo*
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--
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