[gnso-rds-pdp-wg] ICANN Meetings/Conversations with Data Protection and Privacy Commissioners

[Stephanie Perrin]

I am going to attempt to answer your question.  Has there been a case 
against ICANN and the WHOIS that has gone to the European Court of 
Justice? not that I am aware of, and I have looked.  Have the data 
protection commissioners been warning ICANN that the WHOIS is violating 
EU law?  Most assuredly, since 1998, actually. CHeck the Annual report 
filed by Stefano Rodota, then Chairman of the Article 29 Working group, 
Available on the EC website.

Volker's point is that the fact that there has not been a case yet does 
not mean the Data Commissioners are wrong, it means noone has taken a 
case.  And quite frankly, they ( the article 29 Working Party) knew that 
the Safe Harbor agreement was not "adequate", but they had to accept 
it.  (political compromise).  The fact that it took a lawsuit filed by a 
student to get the Safe Harbor agreement thrown out, after the gallons 
of ink that has been spilled in the intervening years (17, if you are 
counting) only amplifies the risk, in my view.  Data commissioners are 
being challenged as never before to enforce the law.

As for privacy proxy solving the problem, it does not.  Over collection 
is not solved by providing a proxy in the third party disclosure 
mechanism.  It is still over-collection, disproportionate to needs. Data 
escrow and data retention are also not in compliance with the GDPR, and 
while they are somewhat out of scope for this PDP, the fact that the 
elements cited as requisite for WHOIS are also the elements required for 
data retention and disclosure makes the waters rather muddy.  The data 
commissioners are unlikely to worry themselves about the scope of our 
PDP, they are expecting ICANN to come up with a set of requirements (as 
data controller) that complies with law.

I hope this helps.

Stephanie Perrin


On 2017-09-26 12:13, Dotzero wrote:
> You are raising a different discussion/issue Andrew. A discussion of 
> what the working group thinks is appropriate is a different discussion 
> vs assertions as to the legal requirements from various jurisdictions 
> as to what we are obliged to do.
>
> I keep on hearing law invoked and therefore asked what precedent there 
> is specific to whois and CBDF. It's a straight forward question and 
> with the various privacy and legal experts on the list, one that 
> should be easily answered if there are precedents specific to whois 
> out there. Volker threw up a laundry list of references that don't 
> really apply to the question I asked.
>
> Michael Hammer
>
> On Tue, Sep 26, 2017 at 11:12 AM, Andrew Sullivan 
> <ajs at anvilwalrusden.com <mailto:ajs at anvilwalrusden.com>> wrote:
>
>     On Tue, Sep 26, 2017 at 10:59:15AM -0400, Dotzero wrote:
>     > predecessor regulations have been around for quite some time and
>     if the
>     > whois privacy issues we have been debating are truly a
>     significant problem
>     > to the extent that some represent them to be, I would expect
>     that there
>     > would have been at least some sort of precedents specific to whois.
>
>     I think that, regardless of any legal cases, the current whois leaks
>     way too much information.  ICANN has an enormous bureaucracy around
>     "whois accuracy" partly (but only partly) because ordinary people
>     don't want to pay extra to keep their home telephone numbers off from
>     being wide open on the Internet, so they lie about it. There is _no
>     reason_ that we are still using an ancient protocol that was designed
>     for a completely different network environment.
>
>     The IAB recommends, in RFC 6973, that protocols do something about
>     data minimization (see section 6.1).  The evidence we have is that
>     greater exposure of data provides a vector for attacks we haven't even
>     thought about.  Therefore, we should not expose data to everyone
>     unless we are sure that it is necessary (and some of this data _is_
>     necessary to expose to everyone); and we should be able to track who
>     got the data if we're exposing data that is not published to everyone.
>
>     I don't think any of this should be news, and I think it is really
>     strange that we seem still to be discussing whether it is something we
>     need to embrace.
>
>     Best regards,
>
>     A
>
>
>     --
>     Andrew Sullivan
>     ajs at anvilwalrusden.com <mailto:ajs at anvilwalrusden.com>
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