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

Thu Jul 23 19:20:38 UTC 2015

As  you may, or may not be aware, from 2008 through 2014, I was the
representative for the U.S. Drug Enforcement Administration regarding ICANN
and Internet governance issues, and an active participant in the ICANN law
enforcement coalition during that period of time. I want to add in my two
cents to this discussion.

Although LE has been actively involved in ICANN for several years, the PSWG
was just recently formed and accepted as a sub-group of the GAC. The
internal processes between the PSWG and the GAC have not yet been
developed, and a consensus between the PSWG and the GAC must be achieved
prior to public comment being made. This has always been the case, but the
establishment of the PSWG created a "formal" presence for law enforcement
(which the ICANN community embraced) but inherently has created more
bureaucracy. This is one of the reasons the PSWG did not post their
statement/position during the PPSAI public comment period.

Further, in addition to the GAC involvement, each law enforcement
representative must receive approval from their respective governments
prior to stating a public position. I can only speak to the US process on
this; an internal US government working group comprised of several agencies
must achieve consensus on the submitted position. I am sure that the
timeline for this, as well as several other issues, was not a sufficient
amount of time for the US government to review this matter, achieve
consensus from all agencies, prepare the response, receive approval from
the administration, and submit public comment.

Because the PSWG did not post a public comment, doesn't mean they do not
have a position. This particular public comment period is not the only
opportunity the PSWG will have to make their position known. Once the
internal process with the GAC is established, and the kinks worked out, I
am sure the PPSAI will hear from the GAC, most likely through the Board,
the PSWG/GAC position.

With that said, I can say with confidence that law enforcement does not
support the requirement of a court order, and does not support customer
notification when a query is made. A full blown marketing campaign by one
special interest group exploiting the fears of the community regarding the
extremely sensitive issue of privacy, without proposing any alternative
measures, only moves this process backward. It is not an issue of law
enforcement attempting to circumvent due process, but rather an attempt to
work with industry within the bounds of law, to protect public health and
safety. At some point, common sense must prevail.

On Thu, Jul 23, 2015 at 5:48 AM, James Gannon <james at cyberinvasion.net>
wrote:

> 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,
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> --
> Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung.
>
> Mit freundlichen Grüßen,
>
> Volker A. Greimann
> - Rechtsabteilung -
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-- 
*Terri Stumme*
*Intelligence Analyst*
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