[gnso-rds-pdp-wg] purpose and GDPR, cont

Fri Nov 3 14:11:39 UTC 2017

ICYMI, please see the attached GAC communique, which includes GAC advice on GDPR/WHOIS ( the relevant GAC advice is copied below) and legal advice on WHOIS/GDPR from Taylor Wessing which was commissioned by the IPC, which provides another perspective on thinking about RDS/WHOIS and GDPR. -Vicky

3. GDPR/WHOIS

a. The GAC advises the ICANN Board that: i. the 2007 GAC WHOIS Principles (attached) continue to reflect the important public policy issues associated with WHOIS services. Accordingly, ICANN should take these issues into account as it moves forward with its planning to comply with the European Union's General Data Protection Regulation (GDPR). In these principles, the GAC has notably recognized that WHOIS data (also known as Registration Directory Services) is used for a number of legitimate activities, including: 1. Assisting law enforcement authorities in investigations and in enforcing national and international laws, assisting in combatting against abusive use of internet communication technologies;

2. Assisting businesses, other organizations, and users in combatting fraud, complying with relevant laws, and safeguarding the interests of the public;

3. Combatting infringement and misuse of intellectual property; and

4. Contributing to user confidence in the Internet as a reliable and efficient means of information and communication by helping users identify persons or entities responsible for content and services online.

Accordingly,

b. the GAC advises the ICANN Board that: i. as it considers how to comply with the GDPR with regard to WHOIS, it should use its best efforts to create a system that

continues to facilitate the legitimate activities recognized in the 2007 Principles, including by: 1. Keeping WHOIS quickly accessible for security and stability purposes, for consumer protection and law enforcement investigations, and for crime prevention efforts, through user-friendly and easy access to comprehensive information to facilitate timely action.

2. Keeping WHOIS quickly accessible to the public (including businesses and other organizations) for legitimate purposes, including to combat fraud and deceptive conduct, to combat infringement and misuse of intellectual property, and to engage in due diligence for online transactions and communications.

In order to promote the public interest, and in response to the ICANN CEO's invitation to contribute questions pertaining to legal advice on the interpretation and application of the GDPR,

c. the GAC also advises the ICANN Board to: i. seek information from its outside counsel tasked with providing guidance on GDPR issues that addresses the following issues: 1. What are the options under the GDPR to ensure the lawful availability of WHOIS/RDS data for consumer protection and law enforcement activities In particular, are there changes to policy or the legal framework that should be considered with a view to preserving the functionality of the WHOIS to the greatest extent possible for these purposes and others also recognized as legitimate? This question includes tasks carried out in the public interest and tasks carried out for a legitimate purpose, including preventing fraud and deceptive activities, investigating and combatting crime, promoting and safeguarding public safety, consumer protection, cyber-security etc.

2. What are the options under the GDPR to ensure the lawful availability of WHOIS/RDS data for the public, including businesses and other organizations? This question includes tasks carried out in the public interest and tasks carried out for a legitimate purpose, including preventing fraud and deceptive activities, investigating and combatting crime as well as infringement and misuse of intellectual property, promoting and safeguarding public safety, consumer protection, cyber-security etc.

Finally,

d. the GAC also advises the ICANN Board that: i. it is urgent to address these issues and that the GAC should be fully involved in the design and implementation of any (including interim) solution and requests that ICANN practice transparency vis-à-vis the multistakeholder community in its GDPR activities.

RATIONALE
This advice reflects the view of governments that the continued and lawful availability of WHOIS/RDS data for consumer protection, intellectual property rights protection and law enforcement activities is a vital public concern and that ICANN should strive to explore all possible mechanisms under the GDPR to ensure that this data remains available for legitimate activities that protect the public and promote a safe, secure, and trustworthy online environment.

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Vicky Sheckler

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SVP, Deputy General Counsel

Recording Industry Association of America

e. vsheckler at riaa.com<mailto:vsheckler at riaa.com>

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w. riaa.com<http://www.riaa.com/>

t. 202.857.9603

|

s. 1025 F Street, NW

10th Floor

|

Washington, DC 20004

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