[gnso-rds-pdp-wg] @EXT: RE: Use case - LEA

Thu Jul 28 10:38:15 UTC 2016

> On 27 Jul 2016, at 8:48 PM, Stephanie Perrin <stephanie.perrin at mail.utoronto.ca> wrote:
> 
> Some crimes are recognized nearly universally, and child abuse is one, we have signed treaties have we not?
> 

	The definitions of what, exactly, constitutes child abuse material does vary between jurisdictions however, which is why I suggested that whether or not the material was on the INTERPOL list was a useful thing to specify, as material on that list is clearly illegal in fairly much every jurisdiction, so it makes a good example for LEA access where jurisdictional definitions of the offence is not a significant issue. 
	For example, I think in some jurisdictions fictional and non-realistic material such as sketches or cartoons are included but in others they are not. In Australia there are significant discrepancies between state and federal law. Child abuse is, indeed, a nearly universally recognised crime, but the definition is not universal. 
	I realise it sounds as if I’m quibbling on the legal details of a serious crime here, but there was a very useful discussion at the IGF last year about the issue of ‘sexting’ in which I think it was very clear that these details matter, vary across jurisdictions, and can lead to profoundly inappropriate responses by law enforcement in some circumstances (and I talked about the new laws in the Australian state of Victoria, which I made a submission to the inquiry concerning). 
	But if you are looking for a category of material that is absolutely almost universally regarded as seriously illegal material that merits international co-operation, and has strong objective criteria so it is beyond doubt, material on the INTERPOL ‘worst-of’ list would be a good example. The criteria are here http://www.interpol.int/Crime-areas/Crimes-against-children/Access-blocking/Criteria-for-inclusion-in-the-Worst-of-list <http://www.interpol.int/Crime-areas/Crimes-against-children/Access-blocking/Criteria-for-inclusion-in-the-Worst-of-list> and guarantee that it is indeed not just awful and illegal, but verified as such by at least two agencies. 

>   I think that is a good reason to use this example, but we must remember that ICANN is not in the business of analyzing content on websites, (or setting policy for same) it is in the business of assisting in the execution of lawful orders to take down a website when served.  I realize this seems like a quibble, but it seems to me it is an important one.  As opposed to other crimes that might not be universally recognized (eg hate speech, political speech that is banned in only one country) an order for an action in the matter of child abuse would be universally accepted. ICANN would also be in the business of setting policy with respect to assisting in the investigation of the offence with a view to providing information useful to criminal prosecution.  However, as the data commissioners have pointed out in their correspondence with ICANN (see Article 29 letters re RAA) they should not be in the business of compelling illegal data retention just in case a registrant might commit a crime. 
> 
	Indeed. I think a use case of ‘what do when LEA requests cooperation with an issue that is clearly illegal in a way that leaves no doubt about cross-jurisdictional issues’ may be useful, but there are a great deal of situations in which the legality is not clear, especially across jurisdictions, and should be considered a different use case. 

	Regards

		David
> Stephanie Perrin
> On 2016-07-27 1:32, David Cake wrote:
>>> On 26 Jul 2016, at 11:25 PM, Mounier, Grégory <gregory.mounier at europol.europa.eu> <mailto:gregory.mounier at europol.europa.eu> wrote:
>>> 
>>> Dear David, 
>>> 
>>> Thank you very much for your constructive comments. These are indeed not "compromised websites" as in "stolen domains" but regular domains, registered for illegal purpose. I have amended the use case accordingly. 
>> 	Thank you for clarifying. The two cases are very different in terms of how they should interact with the RDS and domain name system generally. 
>>> Now, I am not sure I understand your point about "designing a case to appear urgent and emotive". It just happens that EC3 has 3 different teams of cyber investigators: one is working on intrusion/malwares/botnets, the second one on online payment fraud and the second one on online child sexual exploitation and distribution of CAM. I asked each teams to give me examples of cases they were currently working on and in which they used WHOIS data. So far I have received this one and I thought that it was illustrative of the use made of WHOIS information in criminal investigations so I decided to share it with the group. I will certainly get some more examples from the malware team and I'll share them too.
>> 	Thank you for clarifying the origin. 
>> 	FWIW, I’m unsure whether we should simply treat it as clearly illegal material, that is illegal across multiple jurisdictions, or specifically address child abuse material as something that poses unique challenges. If the latter, I would probably want slightly more info, such as, is this material that is clearly illegal across most jurisdictions such as material on the INTERPOL list, or only in some jurisdictions.
>> 
>>> These are real use cases and not scenarios: I have checked the urls today and the websites are is still online as we speak. And yes, I do have colleagues (1/3 of EC3's work force) working every day on online child abuse cases because this is a major problem in our digitalised and connected societies.
>>> 
>>> But if the group decides that we should not mention content or give context because it could make the use cases "emotive" then I am happy to simply talk about "illegal activities". But then we should not mention Turkey either.
>> 	If you think the specific nature of the material involved is significant to the approach we should take (and it may be) then that should be clear in the use case. 
>> 
>> 	David
>> 
>> 
>>> Looking forward to continuing the discussion.
>>> 
>>> Kind regards, 
>>> 
>>> Greg
>>> 
>>> -----Original Message-----
>>> From: David Cake [mailto:dave at davecake.net <mailto:dave at davecake.net>] 
>>> Sent: 26 July 2016 09:32
>>> To: Mounier, Grégory
>>> Cc: gnso-rds-pdp-wg at icann.org <mailto:gnso-rds-pdp-wg at icann.org>
>>> Subject: Re: [gnso-rds-pdp-wg] @EXT Use case - LEA
>>> 
>>> At a first glance, this seems contradictory. You state that the web sites are compromised - then assume that not just some WHOIS data is valid, but enough of it to find cross-correlations. If the domains were compromised, this would be meaningless - a linked email address would just indicate that multiple sites belonging to the same original person were compromised at the same time, presumably by compromise of a shared host or shared controlling organisation, and its rare that sites are compromised unless its entirely done by via DNS mechanisms, in which case we could probably deal with that issue (stolen domains) without bringing content into it. 
>>> 
>>> So your use case assumes that the sites were not compromised, but registered for illegal purpose, which is an entirely different situation. This seems like a poorly constructed use case to me, in that while it seems designed to appear very urgent and emotive by focussing on content that no one would support, the actual DNS scenario we are trying to address here is very unclear.
>>> 
>>> 
>>> David
>>> 
>>>> On 26 Jul 2016, at 6:25 AM, Mounier, Grégory <gregory.mounier at europol.europa.eu> <mailto:gregory.mounier at europol.europa.eu> wrote:
>>>> 
>>>> Dear all,
>>>> 
>>>> Please find attached a use case which shows how accurate WHOIS information, combined with other types of evidence, can help attributing crime online.
>>>> 
>>>> Regards,
>>>> 
>>>> Greg
>>>> 
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