[gnso-rds-pdp-wg] @EXT: RE: Use cases: Fundamental, Incidental, and Theoretical

Mon Aug 22 20:04:51 UTC 2016

Thanks for this input, Volker. I agree. Making the RDS vulnerable to one group means making it vulnerable to all. It is not going to fly to have gated access to data only for law enforcement from country X, Y, or Z — and it is not possible to, say, limit access to law enforcement in general. Limiting access to data is a policy requirement; it requires designing a system which is not secure in the first place and then overlaying some kind of policy on top of it to limit access to authorised parties. Anyone who has read a newspaper over the last year will know that data breaches are not unheard of.

- Ayden

-------- Original Message --------
Subject: Re: [gnso-rds-pdp-wg] @EXT: RE: Use cases: Fundamental, Incidental, and Theoretical
Local Time: August 22, 2016 8:19 AM
UTC Time: August 22, 2016 7:19 AM
From: vgreimann at key-systems.net
To: gnso-rds-pdp-wg at icann.org

For me the issue looks different: Even if we trusted "our friendly neighborhood LEAs" with all the data they can carry, we probably do not feels the same about the LEAs operated by other states. Data they I might be glad to hand over to interpol or German LEAs, I would rather see deleted than accept the slightest risk of it falling into the hands of Turkish LEAs or worse, like of a fully fledged torture state. So we cannot look at the best possible cases, where LEAs are so well regulated that the risk of abuse is minimized. Our approach (once we get to it) has to be resilient enough to prevent access bad anyone who would abuse it, while using the access routes we create for the good guys. So while I appreciate the discussions of how well regulated some LEAs are, this is not the standard we need to consider.

Simply put: Anything that can be abused, will be abuse. We therefore need to model our approach on the worst possible actors, not the best.

Best,

Volker

Am 20.08.2016 um 01:08 schrieb Stephanie Perrin:

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

To: gregshatanipc at gmail.com

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> 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]
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 whollyexempt 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 someof 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

To: icann at ferdeline.com

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] 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

Astutium Ltd, Number One Poultry, London. EC2R 8JR

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