[gnso-rds-pdp-wg] @EXT: RE: Use cases: Fundamental, Incidental, and Theoretical
Stephanie Perrin
stephanie.perrin at mail.utoronto.ca
Fri Aug 19 23:23:36 UTC 2016
I beg your pardon, I was referring to the discussion between Greg and
Ayden, not Chuck's intervention.
this is of course a comment on the comment.....but not on the other comment.
Stephanie
On 2016-08-19 19:20, Greg Shatan wrote:
> I did not find Chuck's comments in any way "accusatory." If anything,
> I found them well-considered and admirable in their restraint.
>
> If anything, Chuck's intervention may have prevented "accusatory"
> comments from making their way to the list. As such, I would suggest
> that Chuck's comments were an exercise in "de-escalation."
>
> In that vein, I will refrain from commenting on comments, or
> commenting on comments about comments or commenting on comments about
> comments about comments, though if I wanted to comment on comments or
> comments on comments or comments on comments on comments, I would have
> comments to make. But I won't.
>
> Greg
>
> On Fri, Aug 19, 2016 at 7:08 PM, Stephanie Perrin
> <stephanie.perrin at mail.utoronto.ca
> <mailto:stephanie.perrin at mail.utoronto.ca>> wrote:
>
> 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
> <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>
>> [mailto: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
>> <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
>> <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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