[gnso-rds-pdp-wg] @EXT: RE: Use cases: Fundamental, Incidental, and Theoretical
Stephanie Perrin
stephanie.perrin at mail.utoronto.ca
Fri Aug 19 23:08:56 UTC 2016
Gentlemen, with great respect, I think you are being a bit hard on Ayden
here. If, as our next-gen rep here on the group, he were not questioning
authority, I might be afraid he had somehow "missed the memo". I think
the tone has become a bit accusatory on both sides and we should
de-escalate. I agree that we must be exceedingly careful about putting
words in each others mouths. However, questioning the efficacy of
oversight of police data protection compliance is fair game in my view
and in the view of most privacy scholars (Korff, Brown, Bennett and
Raab, Anderson etc.). Diana Alonso Blass (who came to ICANN in 2003 or
04 representing the Article 29 Working Party) and now of Eurojust speaks
regularly on some of these issues at the data protection commissioners'
annual conference and at CPDP and there can be heated debate. Oversight
of law enforcement, particularly cross border law enforcement, is
difficult just as the actual law enforcement is difficult. There are
many reasons for this:
* law enforcement authorities have (legitimate) exemptions under data
protection law for collection use and disclosure, making it easy to
accidently abuse that discretion
* Data protection authorities frequently choose to direct enforcement
actions in other areas, given the constant shortage of resources and
the publicity (reaching political uproar at times) that can come
with enforcement against police
* governments often take a dim view of data protection commissioners
who go after the police (I can cite examples if you wish but I
realize noone wants to read an article on the difficulties of dp
oversight of law enforcement
Some of the European DP authorities testified in the 2014 inquiry into
NSA surveillance....I realize this is about intelligence, but certainly
Europol and cybercrime were mentioned.
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A7-2014-0139+0+DOC+PDF+V0//EN.
Given the global nature of law enforcement in our subject area, and the
perceived failure of certain instruments such as the Cybercrime treaty,
and the general shock and outrage expressed during the inquiry I just
cited, particularly over cross border data sharing, I think it is
reasonable to question assertions of compliance with data protection
law. You will find the list of witnesses in the appendix. Jacob
Kohnstamm was one of them, as was Peter Hustinx, and let me finally
remind you of my favorite quote from Kohnstamm 's 2012 letter to Crocker:
“The Working Party strongly objects to the introduction of data
retention by means of a contract issued by a private corporation in
order to facilitate (public) law enforcement.If there is a pressing
social need for specific collections of personal data to be available
for law enforcement, and the proposed data retention is proportionate to
the legitimate aim pursued, it is up to national governments to
introduce legislation that meets the demands of article 8 of the
European Convention on Human Rights and article 17 of the International
Covenant on civil and Political rights”. (Kohnstamm to Crocker and
Atallah, 26 September 2012).
The bottom line here is that civil society correctly has questions about
the efficacy of oversight. Please don't take it personally, it is not
meant that way. It is our job to question. I would agree that Europol
has an excellent oversight regime, in comparative terms, (I wish we had
it in North America) but that does not mean it works all the time. While
we are not here to criticize particular countries or regions, please
admit the idea of criticism in general. It is important.
Stephanie Perrin
On 2016-08-18 18:55, Gomes, Chuck wrote:
>
> Ayden,
>
> I appreciate your frequent contributions because you share some
> important concerns. But I want to communicate some concerns I have
> about how you are doing that. Please see my comments below.
>
> Chuck
>
> *From:*gnso-rds-pdp-wg-bounces at icann.org
> [mailto:gnso-rds-pdp-wg-bounces at icann.org] *On Behalf Of *Ayden Férdeline
> *Sent:* Thursday, August 18, 2016 4:48 PM
> *To:* Mounier, Grégory
> *Cc:* RDS PDP WG
> *Subject:* Re: [gnso-rds-pdp-wg] @EXT: RE: Use cases: Fundamental,
> Incidental, and Theoretical
>
> Hi Greg,
>
> I don’t mean to sound provocative, however I would like to make sure I
> am interpreting your comments correctly. Please see inline below.
>
> Thanks,
>
> Ayden
>
> -------- Original Message --------
>
> Subject: @EXT: RE: Use cases: Fundamental, Incidental, and Theoretical
>
> Local Time: August 18, 2016 7:00 PM
>
> UTC Time: August 18, 2016 6:00 PM
>
> From: gregory.mounier at europol.europa.eu
> <mailto:gregory.mounier at europol.europa.eu>
>
> To: gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com>
>
> icann at ferdeline.com,gnso-rds-pdp-wg at icann.org
> <mailto:icann at ferdeline.com,gnso-rds-pdp-wg at icann.org>
>
> Yes Greg: unlike what Ayden seems to imply:
>
> ·Europol is not advocating that personal information be processed
> in a manner inconsistent with European law;
>
> I am pleased to hear this. However, it the opinion
> <https://secure.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Comments/2014/14-04-17_EDPS_letter_to_ICANN_EN.pdf>
> of the European Commission’s own Data Protection Supervisor that the
> data retention requirements contained with the 2013 RAA and the Draft
> Specification “continue to fall short of compliance with European data
> protection law.” You have built a use case around how the WHOIS
> protocol operates today, which itself contains data sourced from
> registrars through practices which are inconsistent with the privacy
> laws of many (all?) EU Member States.
>
> */[Chuck Gomes] Greg did not say that the 2013 RAA is compliant with
> European law; he only said Europol is./*
>
> ·Europol access and processing of WHOIS information is in line
> with European Data protection rules;
>
> I am glad that this is the case. Could you please expand upon how,
> under what circumstances, and how frequently Europol currently
> retrieves WHOIS records?
>
> */[Chuck Gomes] This is a terribly broad request and one that I
> suspect may be very difficult to respond to. Europol is not the topic
> of discussion . Insight they can provide will be helpful when we
> deliberate just like your insights. In all cases we will do our best
> to validate information we use./*
>
> ·Europol does not “trawl” the WHOIS;
>
> Are you saying, then, that you do not find the WHOIS protocol useful
> in solving crime? If you are not collecting its records in bulk, I
> would suggest that we revise your use case of 25 July to reflect this
> reality.
>
> */[Chuck Gomes] He did not say that. I encourage you to avoid adding
> to what he said./*
>
> We should remove the reference to “Python DNS scripts or domain tool
> API” being utilised to identify connections between DNS information
> and potentially troublesome websites, and replace it with something
> which respects the right to, say, due process.
>
> */[Chuck Gomes] Please remember that our objective is not to create
> perfect use cases./*
>
> After all, illegal content like child abuse material (which you
> flagged in your use case) is just that – illegal. Illegal material
> should be dealt with in a legal manner. You should not be advocating
> for the circumvention of the rule of law; to do so is a direct
> violation of the human rights standards that Europol has committed
> itself to upholding.
>
> */[Chuck Gomes] Who is advocating for the “/*the circumvention of the
> rule of law*/”? I think that the implication you make here is
> inappropriate./*
>
> ·Europol is indeed subject to one of the most stringent data
> protection framework in the LEA world.
>
> Whether that is reality or rhetoric, I do not know. My gut feeling is
> that Europol’s data protection provisions are comprehensive in theory,
> but critically undermined by procedural weakness. One example that
> comes to mind: the Europol Joint Supervisory Body is the independent
> body which supposedly monitors your adherence to data protection
> rules. However, it has no powers of enforcement, it can only “make any
> complaints it deems necessary to the Director” of Europol.
>
> */[Chuck Gomes] I think it best if you avoid criticizing specific
> organizations and stick to issues./*
>
> I’ll stop here because this is only partially relevant to this PDP.
>
> My understanding has been that some politicians in the EU have been
> reluctant to expand Europol’s remit/mandate, given concerns around
> effectiveness and a perceived democratic deficit, so it is fascinating
> to me to see Europol working to expand its powers and data collection
> abilities in working groups such as this one.
>
> */[Chuck Gomes] Once again I think you are concluding more than is
> reasonable and also don’t find you comment here constructive./*
>
> Best
>
> Greg
>
> *From:*Greg Shatan [mailto:gregshatanipc at gmail.com]
> *Sent:* 18 August 2016 19:49
> *To:* Mounier, Grégory
> *Cc:* Ayden Férdeline; RDS PDP WG
> *Subject:* Re: [gnso-rds-pdp-wg] @EXT: RE: Use cases: Fundamental,
> Incidental, and Theoretical
>
> Greg,
>
> For the rest of us who may not be so well informed, is there
> something more we should understand and take into account in
> considering this particular back-and-forth?
>
> Thanks!
>
> Greg Shatan
>
> On Thu, Aug 18, 2016 at 1:45 PM, Mounier, Grégory
> <gregory.mounier at europol.europa.eu
> <mailto:gregory.mounier at europol.europa.eu>> wrote:
>
> Dear Ayden,
>
> I objected because some of your statements were misinformed so I
> thought that I should help and clarify. But it seems that you are
> very well informed and that you don’t need further explanations J
>
> Best regards,
>
> Greg
>
> *From:*Ayden Férdeline [mailto:icann at ferdeline.com
> <mailto:icann at ferdeline.com>]
> *Sent:* 18 August 2016 19:27
> *To:* Mounier, Grégory
> *Cc:* Rob Golding; RDS PDP WG
> *Subject:* Re: @EXT: RE: [gnso-rds-pdp-wg] Use cases: Fundamental,
> Incidental, and Theoretical
>
> Thank you for the response, Greg. I did not mean to suggest that
> Europol was *wholly*exempt from European data protection
> regulations, because it is not. In my original message, I wrote:
>
> /"...your agency is exempt from *some* of the general provisions
> on data processing." /
>
> I have bolded the word ‘some’ on this occasion for emphasis. When
> I wrote that Europol had exemptions from *some*of the general
> provisions on data processing, I was referring to the Europol
> Council Decision as published in the Official Journal of the
> European Union on 15 May 2009. I am sure you are intimately
> familiar with this document, as you cited it in your email to me
> today as providing the “basis for Europol to establish and
> maintain cooperative relations with Union or Community
> institutions, bodies, offices and agencies; third States and
> organisations; private parties and private persons in so far as it
> is relevant to the performance of its tasks.”
>
> Aside from this, this decision contains data processing rules
> which were, to quote you again in your email, "tailor-made" for
> Europol, and is complemented by a set of implementation guidelines
> which privilege Europol with the ability to process personal data
> “for the purpose of prevention, investigation, detection and
> prosecution of criminal offences or the execution of criminal
> penalties” in a manner that would not be permitted of other
> stakeholders.
>
> Given this, I'm unsure as to why you found my comments so
> objectionable, but I hope this email has brought about some more
> clarity. If not, I am happy to expand upon my thoughts.
>
> Thanks,
>
> Ayden
>
> -------- Original Message --------
>
> Subject: @EXT: RE: [gnso-rds-pdp-wg] Use cases: Fundamental,
> Incidental, and Theoretical
>
> Local Time: August 18, 2016 5:54 PM
>
> UTC Time: August 18, 2016 4:54 PM
>
> From: gregory.mounier at europol.europa.eu
> <mailto:gregory.mounier at europol.europa.eu>
>
> To: icann at ferdeline.com <mailto:icann at ferdeline.com>
>
> rob.golding at astutium.com,gnso-rds-pdp-wg at icann.org
> <mailto:rob.golding at astutium.com,gnso-rds-pdp-wg at icann.org>
>
> Dear Ayden,
>
> Thank you very much for sharing your concerns and apologies
> for the late response, I was away from the office.
>
> I am not sure how you got the perception that Europol was
> “trawling” through WHOIS records or that Europol was “exempt
> from some of the general provisions on data processing” or
> even that our legal framework limited the ability of Europol
> staff to process data from publicly available sources related
> to “terror manuals” or “criminals claiming credit for attacks”.
>
> In fact, I can assure you that _Europol is not exempted from
> the general provisions on data protection_. European data
> protection legislation has been implemented in the
> organisation with the aim of creating a legal framework which
> balances the fundamental interests of freedom and security.
> The tailor-made set of rules provides Europol with one of the
> strongest, most robust data protection framework in the world
> of law enforcement.
>
> As far as data exchange inside the EU is concerned, Art.22-25
> of Europol Council Decision (ECD) provides a basis for Europol
> to establish and maintain cooperative relations with Union or
> Community institutions, bodies, offices and agencies; third
> States and organisations; private parties and private persons
> in so far as it is relevant to the performance of its tasks.
>
> Europol exchanges personal data only with third parties which
> have an adequate level of data protection. The prior data
> protection assessment of the third party involves a check on
> the necessary data protection legislation and confidentiality
> rules in place and in practice. The list of the third
> countries with which Europol has established an operational
> agreement is published on our website.
>
> In addition, Europol can receive information from private
> parties such as companies, business associations or non-profit
> organisations. As with any transfer of personal data, this
> process is subject to data protection controls.
>
> Last but not least, in line with the respective provisions of
> the ECD, Europol can also retrieve and process data, including
> personal data, from publicly available sources, such as media
> and public data and commercial intelligence providers, in
> accordance with the data protection framework.
>
> I hope that I could clarify some of the issues you raised.
>
> Kind regards,
>
> Greg
>
> *From:*Ayden Férdeline [mailto:icann at ferdeline.com]
> *Sent:* 08 August 2016 14:11
> *To:* Mounier, Grégory
> *Cc:* Rob Golding; RDS PDP WG
> *Subject:* Re: [gnso-rds-pdp-wg] @EXT: RE: Use cases:
> Fundamental, Incidental, and Theoretical
>
> Greg,
>
> I am disappointed that Europol seems to be advocating that
> personal information be processed in a manner inconsistent
> with European law.
>
> I fully appreciate that, in order to allow Europol to collect
> sensitive information from the Member States in the pursuit of
> investigations, your agency is exempt from some of the general
> provisions on data processing. You are permitted to directly
> retrieve and process information obtained from
> publicly-available sources, but the promotional literature on
> the Europol website suggests Europol agents searching for
> publicly-available ‘terror manuals’ or criminals claiming
> credit for attacks. There is no indication that this includes
> Europol trawling through things like WHOIS records to identify
> the administrator of a website, something far less sinister.
> And if the RDS evolves into something very different from what
> it is today – perhaps not open to any and everyone to query,
> or federated into a single data store – my understanding is
> that the routing of information from a private party to
> Europol would be subject to European data protection controls
> and safeguards.
>
> The very specific exemptions that Europol has received in
> order to carry out its work simply do not call for Europol to
> advocate for a lower standard of privacy protection for
> European residents in privately-owned or publicly-accessible
> sources of information.
>
> There is no doubt that effective police work requires top
> intelligence, but equally as important is the employment of
> sound data protection safeguards which strike an appropriate
> balance between the interests of freedom and security.
>
> Just my $0.02.
>
> - Ayden
>
> On Thu, Aug 4, 2016 1:59 PM, wrote:
>
> Dear Rob,
>
> Thanks for sharing the outcome of your chat with ex-FBI and UK
> LEA agents. I feel that I need to step in to provide a
> different perspective than the one you just gave on the law
> enforcement use of the WHOIS. It might be a matter of
> interpretation but the views expressed by your interlocutors
> are not shared by my colleagues working throughout European
> police cyber divisions.
>
> If European cyber investigators are obviously all aware of the
> fact that WHOIS registration data can sometime be inaccurate
> and not up-to-date (ICANN compliance reported that for the
> first quarter of 2015, WHOIS inaccuracy comprised 74.0 % of
> complaints), in 90% of cases they will start their
> investigations with a WHOIS lookup. This is really the first
> step.
>
> Despite the lack of accuracy, WHOIS information is useful in
> so many different ways. One of the first them is to make
> correlations and link pieces of information obtained through
> other means than from the WHOIS. This was the point I tried to
> make on Tuesday during the conference call.
>
> Accurate and reliable WHOIS data helps crime attribution and
> can save precious investigation time (you can rule out wrong
> investigative leads).
>
> It raises the bar and makes it more difficult for criminals to
> abuse domain names. It pushes them to resort to more complex
> techniques such as ID theft to register domains for malicious
> purposes.
>
> In short, for LEA WHOIS is certainly not the silver bullet to
> attribute crime on line but it is an essential tool in the
> tool box of law enforcement.
>
> Best,
>
> Greg
>
> -----Original Message-----
>
> From: gnso-rds-pdp-wg-bounces at icann.org
> <mailto:gnso-rds-pdp-wg-bounces at icann.org>
> [mailto:gnso-rds-pdp-wg-bounces at icann.org] On Behalf Of Rob
> Golding
>
> Sent: 04 August 2016 01:46
>
> To: RDS PDP WG
>
> Subject: Re: [gnso-rds-pdp-wg] Use cases: Fundamental,
> Incidental, and Theoretical
>
> >> Theoretical
>
> >> ===========
>
> >> We have seen a couple of proposed use cases that seem to be
> ideas
>
> >> that people have for useful or harmful ways that RDS can be
> used, but
>
> >> that do not exist today (at least not that anyone can fully
>
> >> document).
>
> >>
>
> >> For example, there seems to be a desire to use the RDS as a
> way to
>
> >> issue warrants for information about registrants. While
> this may be
>
> >> useful, this is not possible today (even with RDAP, I note).
>
> It not only is possible today, it's also "common" (although
> thankfully not frequent)
>
> Registrars get served warrants for details about registrants,
> and the _only_ information from WHOIS that's "needed" or used
> for such cases is the name of the Registrar.
>
> I had the pleasure of meeting Chris Tarbell, ex-FBI Cyber
> Crime, at HostingCon last week - asked about WHOIS/domain data
> he said "we dont use it"
>
> Last year at the UKNOF event in Sheffield I spent quite some
> time talking with some amazing people from the UK CyberCrime
> departments - asked the same questions, they confirmed that
> although whois _might_ be looked at to see if it matches _data
> they already have_ for confirmation, it's not used or relied on.
>
> Which beggars the question, should "LawEnforcement" use cases
> even be part of the discussions ?
>
> Rob
>
> --
>
> Rob Golding rob.golding at astutium.com
> <mailto:rob.golding at astutium.com>
>
> Astutium Ltd, Number One Poultry, London. EC2R 8JR
>
> * domains * hosting * vps * servers * cloud * backups *
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> Ayden Férdeline
>
> Statement of Interest
> <https://community.icann.org/display/gnsosoi/Ayden+F%E9rdeline+SOI>
>
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