[Gnso-rds-pdp-privacy] Privacy sub-group

Mon Mar 28 20:15:42 UTC 2016

Stephanie,

With equal respect, I am fully aware of the field of privacy scholarship,
and the related but distinct field of privacy advocacy.  At no point did I
state that attention should not be paid to rulings of the EU Court of
Justice.  (I will remain silent on the Article 29 Working Group....)  Nor
did I make any argument that any jurisdiction(s) have a monopoly or leading
role in "thought leadership" in this area.  So think it is not really fair
to imply (actually, state) that I wanted to "rule out" any recent
contributions.  Casting them as 'the top" and "best practices" and other
views as "objectively [sic] poor" is another thing entirely.

I also did not seek to cast this as a scholarly battle between "US" and
"Europe" or over "regulatory vs. non-regulatory" approaches to privacy.  Of
course, as I've been told many times, "ICANN is not a regulator...."  In
any event, scholarship will only take us so far.  Scholars have the luxury
of not worrying about implementation or the concerns of varied
stakeholders, and can engage in extended periods of beard-stroking before
issuing pronouncements that echo only amongst the ivory towers (where free
speech is being replaced by "trigger words" and "safe spaces" and the
marketplace of ideas is being replaced by political correctness and the
hounding of those with the temerity to disagree).  We have no such luxury.
So, while we should and must be well informed on scholarship and law (and
legal scholarship), we also have to heed a variety of practical concerns
coming from a variety of directions.

Best regards,

Greg

[image: http://hilweb1/images/signature.jpg]

*Gregory S. Shatan | Partner*McCARTER & ENGLISH, LLP

245 Park Avenue, 27th Floor | New York, New York 10167
T: 212-609-6873
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gshatan @mccarter.com | www.mccarter.com

BOSTON | HARTFORD | STAMFORD | NEW YORK | NEWARK
EAST BRUNSWICK | PHILADELPHIA  | WILMINGTON | WASHINGTON, DC

On Mon, Mar 28, 2016 at 3:38 PM, Stephanie Perrin via Gnso-rds-pdp-privacy <
gnso-rds-pdp-privacy at icann.org> wrote:

> With great respect Greg, there is a field called privacy scholarship, and
> in that field folks absolutely do pay a great deal of attention to the
> rulings of the EU Court of Justice, and the opinions of the Article 29
> working group.  You are free to make the argument that thought leadership
> rests in the United States or anywhere else (Cate, Westin, etc) but there
> are a great many US privacy scholars who look to the EU for thought
> leadership (Reidenberg, Schwartz, Solove, Rotenberg, Nissenbaum, Gellman, I
> could go on but that might be tedious).  So I think it is not really fair
> to rule out recent contributions if they are important, and the material
> Ayden is introducing certainly qualifies as important in my book.
> The fact is that there has been a struggle going on for the last 25 years
> between the US and Europe over the regulatory vs non-regulatory approach to
> privacy.  Lets explicitly put that on the table and recognize our
> differences on this matter.
> Kind regards
> stephanie
>
>
> On 2016-03-28 13:43, Greg Shatan via Gnso-rds-pdp-privacy wrote:
>
> Ayden,
>
> EU rulings do not necessarily impact the law in the rest of the world,
> much less California.  I would not categorize an attempt to embrace EU
> principles as a "race to the top" nor would I categorize those principles
> as "international best practices."  Certainly, we as a group should not
> adopt such attitudes.  But, hey, it's nice to know where you stand.
>
>
> Best regards,
>
> Greg Shatan
>
>
>
> [image: http://hilweb1/images/signature.jpg]
>
>
>
>
> *Gregory S. Shatan | Partner *McCARTER & ENGLISH, LLP
>
> 245 Park Avenue, 27th Floor | New York, New York 10167
> T: 212-609-6873
> F: 212-416-7613
> gshatan @mccarter.com <gshatan%20 at mccarter.com> |
> <http://www.mccarter.com/>www.mccarter.com
>
> BOSTON | HARTFORD | STAMFORD | NEW YORK | NEWARK
> EAST BRUNSWICK | PHILADELPHIA  | WILMINGTON | WASHINGTON, DC
>
>
>
> On Mon, Mar 28, 2016 at 12:01 PM, Ayden Fabien Férdeline <
> <gnso-rds-pdp-privacy at icann.org>gnso-rds-pdp-privacy at icann.org> wrote:
>
>> Hello all,
>>
>> I would like to introduce some material relating to the 'right to be
>> forgotten' in Europe. Here's a court judgement
>> <https://links2.mixmaxusercontent.com/aMjjKHWxnLSD3SEwj/l/Y6pG8Inj7cxRfeEQg?rn=IyZy9mLu5WYjlGQ5NWY2lmcw1CckBXLzRmct82cudmI&re=IyZy9mLu5WYjlGQ5NWY2lmcw1CckBXLzRmct82cudmI>
>>  <
>> <http://curia.europa.eu/juris/document/document.jsf?text=&docid=152065&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=11654>
>> http://curia.europa.eu/juris/document/document.jsf?text=&docid=152065&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=11654
>> >.
>>
>> The protection of personal data in Europe is seen as a fundamental right
>> on equal standing with all other human rights. The Court of Justice of the
>> European Union has consistently held that any and all data processing must
>> be subject to stringent proportionality assessments.
>>
>> It has been unsuccessfully argued that allowing users to delete their
>> data is an affront to other fundamental rights such as free speech. The
>> Court of Justice of the EU has consistently ruled that if and when the
>> privacy interests of the data subject outweigh the public interest, the
>> individual should be able to enforce his or her 'right to be forgotten'.
>>
>> This decision is something we should carefully consider when looking at
>> how long we retain information for. Certainly once a domain name has
>> expired, it would be difficult to justify under these rulings the continued
>> storage of the sensitive personal information of registrants.
>>
>> I appreciate that EU rulings do not necessarily impact Californian law,
>> but hey, why not have a race to the top and adopt international best
>> practices in privacy law… :-)
>>
>> Best wishes,
>>
>> Ayden Férdeline
>>
>> On Sun, Mar 27, 2016 at 5:37 AM, David Cake via Gnso-rds-pdp-privacy <
>> gnso-rds-pdp-privacy at icann.org> wrote:
>>
>>> Welcome all of you to the Privacy sub-team. Thanks to all of you for
>>> volunteering.
>>>
>>> Our task is first to collect information on privacy issues relevant to
>>> registration data. Then we will go on to decide how best to present that
>>> information for use of the working group - we may consolidate, summarise,
>>> prioritise etc in order to make the important information easily available.
>>> Hopefully the privacy experts on this group will help us locate the most
>>> important material, and make it easily digestible to the broader working
>>> group.
>>>
>>> This is a link to the RDS PDP WG document that describes the approach
>>> the WG agreed upon
>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_download_attachments_58730879_RDS-2DPDP-2DProposed-2DSummary-2DApproach.pdf&d=CwMBAg&c=5VD0RTtNlTh3ycd41b3MUw&r=gvEx8xF7ynrYQ7wShqEr-w&m=u1EVRiHe_hJc7jxNs5HvrA_j6PFk6zDIgTHzeV5HW-I&s=2ky2gNfugoilw7hdnuB-Li1SPS7b_5IFQFq5Dm1QeEk&e=>
>>> https://community.icann.org/download/attachments/58730879/RDS-PDP-Proposed-Summary-Approach.pdf
>>>
>>> At this early stage, we are in collection mode - please send documents
>>> that you think will be valuable to the group. If you add a bit more
>>> information for context as to why you think it would be useful, that will
>>> probably be very helpful for later work.
>>>
>>> Looking forward to working with you all.
>>>
>>> David
>>>
>>>
>>>
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>>>
>>
>>
>> Ayden Férdeline
>> +44.77.8018.7421
>>
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>>
>
>
>
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