[gnso-rds-pdp-wg] Notes and Actions from RDS PDP WG Call - 3 May 2016

Lisa Phifer lisa at corecom.com
Tue May 3 19:33:22 UTC 2016

Notes and Action Items from RDS PDP WG Call - 3 May 2016

1.   Roll Call / SOI

2.   Update from sub-teams - overview of final template (sub-team leads) 

.        Thanks to all sub-teams for their work in pulling together inputs
and summarizing them

.        We are now regrouping as a full WG and will start with an update
from each team leader on the sub-team outputs

.        Data Sub-Team Readout:

 - A couple of summaries still pending but will be added in the next couple
of days
 - Quite a lot of information there to help bring WG members up to speed on
inputs relevant to RDS requirements related to data elements

.        Purpose Sub-Team Readout:

 - Excellent support from sub-team members and staff
 - For those who haven't participated in the discussion of purporse of
registration data, the sub-team's output includes summaries of 30-40
documents relevant to the question of purpose
 - They include A29, 2009 European charter on fundamental data rights, the
WHOIS RT 2012 was cited a lot in our work, the EWG recommendations was
probably the most controversial, and the SAC055 report was also helpful. If
I was new to this, I would review those first but others summarized by the
purpose team are also helpful for this question
- Additional comments from purpose sub-team members:
- Purpose is a term of art/legal term in the EU under the EU Data Protection
Directive and others, it has been interpretted carefully by the A29 WP in a
lengthy opinion. Doc is included in the list and was summarized by Stephanie
- Another member got the impression from the documents reviewed that the
purpose definition was quite broad. We should all look at the text before we
make judgments about how narrow/specific something is  

.        Privacy Sub-Team Readout:

- Privacy team identified and summarized many documents - a good bit of
overlap with the Purpose list but often summarized by different people from
different perspectives, so useful to read all summaries of same input
- Among the inputs identified as most relevant by the sub-team are: SAC054,
EWG recommendations, EU Data Protection Directive, Council of Europe's
Treaty 108, Professor's Greenleaf's articles on trends and laws, A29 Opinion
2/2003 on the application of data protection principles to WHOIS
directories, the Thick WHOIS PDP report and legal review provided to the
implementation review team, other A29 correspondence with ICANN. Two
additional inputs were flagged as highly relevant by some but not all
agreed: Schrems v. Data Protection Commissioner (2015) and McIntyre v. Ohio
Elections Commission.
- Additional comments from purpose sub-team members:
- Stephanie is still working on summary of A29 Opinion 6/2004 on the
legitimate interests of data controllers w/r/t any impact that new EU data
protection regulations may have on this opinion
- As additional documents become relevant to our work, they will need to be
taken into account
- See Professor Greenleaf's article and summary for information on emerging
trends as well as comprehensive list of data protection laws
- Purpose and Privacy overlap - can be helpful to look at purpose through
the prism of DP laws
- Chat comments on this topic from other WG members:
- Data protection regulation will supplant the framework directive, not
coexist with it.  (Once the regulation comes into force in 2018)
- Article 29 WP 76 Opinion 2/2003  is in the summaries and does say
"registration of domain names by individuals raises different legal
considerations than that of companies or other legal persons registering
domain names" ... "the publication of certain information about the company
or organisation (such as their identification and their physical address) is
often a requirement by law in the framework of the commercial or
professional activities they perform
- Should the privacy team should include more documents about limitations of
privacy rights?  Article 29 WG in 2006 stated that companies do not
necessarily have a right to privacy and that imposes an obligation on us to
explore that limitation and others"
- Should the privacy team add some of the legal analysis that was presented
to the PPSAI group?
- There are really two issues in the quesion: what data is needed (purpose
of collecion will focus on why the information is collected) and then what
of that information should be available - and to whom
- Does any data currently collected and disclosed via Whois meet the EU
definition of "senstitive data"?
- It's not just the privacy of individuals that is protected under data
protection laws, but of course, that of human rights groups, minority
political groups, minority ethnic and sexual groups. This is covered in the
privacy sub-team's summaries, which sub-team members may highlight after the
- Should we make a distinction between personal data of individuals and data
from a company or commercial enterprise?
- Re: privacy, UN's website on Right to Privacy in the Digital Age states
that the "right to privacy under international human rights law is not
absolute" and one can interfere with the right to privacy where it's
necessary, legitimate, and proportional." and all I've read in A29 seems to
support this
- Article 19 - Freedom of Expression extends to organizations as well as
individuals (and many organizations are organized as "companies" for tax
- How does Freedom of Expression relate to registration data?
- Noted that protection of human rights is not included in the privacy
group's summaries.
- Human rights protections must be considered, but constitutional proections
vary from place to place and aren't universally adopted. 
- Are we conflating two principles? Question as to whether chat accurately
reflects A29 Opinion. All WG members should review A29 opinions and all
sub-team summaries of them.
- We may need to introduce some nuance into how we talk about individuals vs
companies' right to privacy. 
- "Sensitive speech:" also has privacy protections, especially when the
organizations are engaged in categories of expression protected under law.
- National law provides more rights to employees in some jurisdictions than
in others....but that does not invalidate the principle that we must
consider the implications of protection, use and disclosure on groups and

.        All of these sub-team outputs were created to inform the full WG as
it continues its phase 1 work.

.        Thank you to the sub-teams. While more summaries can always be
added as further key inputs are identified, this initial sub-team assignment
has now been completed.

.        Question: New RAA includes additional requirements w/r/t data
collection, how will this PDP WG's recommendations impact those
Answer: Registries and registrars have an obligation to follow consensus
policies and commit to following them even before we know what they'll be. 
In this PDP WG"s phase 1 work, the WG will make a recommendation about
whether a new RDS is needed or WHOIS can be modified to meet requirements,
as well as whether to continue to phases 2-3 to make policy recommendations.

Phase 2 will draft new consensus policies, phase 3 implementation guidance. 
This PDP WG will make recommendations for consensus policies, give those to
the GNSO council. 
The GNSO council will decide whether to recommend adoption to the board.
Only when the board approves the recommended consensus policies do they then
get implemented into the registry and registrar agreements. 
This long process can change future contractual requirements - new consensus
policies would be incorporated into agreements with registries and
Part of the board's motion to adopt new consensus policies typically tasks
staff with making adjustments to contracts and forming an implementation
review team to implement the new policies in as efficient and timely manner
as possible. 
No need for renegotiation of agreements.
>From Chat: For example, see Section 2.2 of Registry Agreement: Compliance
with Consensus Policies and Temporary Policies.  Registry Operator shall
comply with and implement all Consensus Policies and Temporary Policies
found at < <http://www.icann.org/general/consensus-policies.htm>
http://www.icann.org/general/consensus-policies.htm>, as of the Effective
Date and as may in the future be developed and adopted in accordance with
the ICANN Bylaws, provided such future Consensus Polices and Temporary
Policies are adopted in accordance with the procedure and relate to those
topics and subject to those limitations set forth in Specification 1
attached hereto ("Specification 1").  

3.   Review updated mind map (revised)

.        See
568000&api=v2> RDS-PDP-Phase1-FundamentalQs-SubQs-MindMap-2May 2016.pdf 

.        Mind map is a tool to visualize the different elements that are
contained in our charter.

.        The map has the first 5 questions, some of the sub-questions
contained in the charter and issue report, and some initial inputs.

.        This update adds the most relevant documents identified by each of
the sub-teams, along with links to the full outputt of each sub-team.

.        The update also includes #s in order of charter simply to enable
reference during discussion but can be changed as the result of WG

.        Specifically: the changes made are to Key Inputs for Purpose, Data
Elements, and Privacy, expanding the list to include the documents that each
sub-team identified as most relevant. Other documents are included in linked
material, also relevant to each of those questions.

.        Also, added an explicit note at upper left of map indicating that
charter questions are numbered as ordered in the charter and process
framework. The order is subject to change by the WG.

.        Question: I thought we had removed the numbers for each question. 
Answer: Chuck wanted numbers there so that we see how questions are ordered
in the charter with the understanding that the WG can reorder and then
renumber the questions based on discussion. This has been noted on the mind

4.  Update from chair on latest version of work plan

.        Intention was to have revised work plan ready for review by WG
during this call - still working on it, should be ready later this week.

.        The work plan has been updated with a few changes to reflect the
past month's work by sub-teams and corresponding changes to dates and next

.        The leadership team hopes to address one open item and then get an
updated draft work plan out to the full WG well in advance of the next WG
call to give everyone time to consider and prepare for discuss during next
week's call.

.        The bulk of next week's call may be focused on discussing and
finalizing the work plan, in advance of taking the next step.

.        The next step currently proposed is to gather potential or possible
requirements in preparation for WG deliberations.

.        All should be thinking about possible requirements based on all of
the inputs identified so far.

.        Part of the benefit of the sub-team work is to inform the full WG
on the work plan, including the order of the questions and what we might
look at first. This will likely be a major topic of discussion in next
week's WG call.

.        Comment: The business of following a logical order in the work plan
is nice but the problem is that these questions are inter-related and the
work is inherently cyclical. For example, as we work on any question, we may
have to stop and look at definitions of other questions.

.        It would easiest if we could do this in a totally linear way but
that will not be possible - in fact, this is noted in charter and process
framework. But what we want to do in the work plan is organize our phase 1
work to be more effective. We can highlight this in our work plan, and it
will be true all the way through. In fact, we may even run into snags with
phase 1 recommendations after we begin phase 2 and have to iterate a little
bit there - hopefully minimal, but we do need to accept iteration will be

.        Chat Comment: WHOIS efforts have stalemated before. And the world
is a lot more complex now. This will not be easy, but we HAVE to succeed.

5   Outreach to SO/ACs/SG/C to request early input (revised)

.        See
modificationDate=1462235012000&api=v2> RDS PDP - SO AC SG C Input Template -
2 May 2016 rev.pdf 

.        We are at a point now where we an do early outreach to SOs, ACs,
GNSO SGs/Cs, and perhaps broader community to gather input to inform the WG.

.        Draft prepared by leadership group for WG review and comment.

.        Highlights of request for input:

.        Template (format used for other PDPs) to fill out to respond to
specific questions.

.        Provides WG progress to date and asks for input on completeness of
key inputs identified to date. Are there any docs that are missing or that
haven't been identified as relevant but should be and why.

.        The issue report, comments on issue report, and other past inputs -
are those inputs still relevant or does any input need to be updated to
reflect that group's input to the WG.

.        Are there any charter questions that are missing and should be
taken into account by the WG?

.        Any other input not noted above.

.        PDP process requires min 35 days, WG can extend if more time needed
but idea is to have input ASAP.

.        Critical that each WG member reach out to their own group and serve
as facilitator to solicit early inputs.

.        WG members should feel free to suggest edits to make sure this is
an effective outreach to solicity early input.

.        Questions: Response time (35 days min but some groups may require
longer), who to include in broader community (eg DPAs?)

Action item: Staff to distribute
modificationDate=1462235012000&api=v2> RDS PDP - SO AC SG C Input Template -
2 May 2016 rev.pdf  to full WG with until Sunday UTC for review/comment and
agreement to go ahead a distribute to SOs/ACs/SGs/Cs. 

6.   Helsinki meeting planning

.        Currently in latest drat schedule, there is one and possibly two
sessions for the RDS PDP WG:

.        A carve-out for a whole morning for this PDP WG to meet. 

.        Also a possibility that this topic will identified for 75m
cross-community discussion.

.        As soon as schedule is confirmed, the WG will need to consider how
to organize its time to best make use of it - particularly if
cross-community session is scheduled, the WG may need to prepare tutorial or
other presentation or questions to make that session effective.

.        Note that we will have a regular WG meeting (both remote and
in-person participation options) whether or not this topic is identified for
a cross-community session.

.        Our Helsinki WG session will be open to anyone - not just WG
members - so that everyone can participate .

.        Concern that there will likely be conflicts between sessions that
impact those who participate in multiple groups. Chuck has raised this
concern to the planning committee but some conflicts are inevitable. There
aren't as many as a regular ICANN meeting. On GNSO side, there's been an
effort to avoid as much as possible conflicts between GNSO communities.
However, there are also conflicts between SOs, ACs that may still be
examined to adjust and reduce conflicts. There wil be some growing pains
since this is the first "B" meeting with this new schedule to facilitate
policy development. What is the mechanism to make conflicts known?

Action item: Staff to carry forward this feedback on conflict minimization -
if GNSO would firm up its sessions, SOs/ACs could adjust accordingly - and
to provide WG with scheduled session dates for this PDP WG.

7.   Confirm next steps & next meeting

.        Tuesday 10 May 2016 at same time (16.00 UTC)

.        Primary agenda item: work plan, facilitated by mind map description
of inputs, questions, and subquestions

Action item: Staff to schedule early leadership team meeting (possibly
Wednesday of this week) to finalize draft work plan for distribution to full


Reference Documents




568000&api=v2> RDS-PDP-Phase1-FundamentalQs-SubQs-MindMap-2May 2016.pdf 

modificationDate=1462235012000&api=v2> RDS PDP - SO AC SG C Input Template -
2 May 2016 rev.pdf  

Latest versions of all sub-team outputs:
<https://community.icann.org/x/p4xlAw> https://community.icann.org/x/p4xlAw.

Membership of the sub-teams:  <https://community.icann.org/x/DDCAAw>


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