[gnso-rds-pdp-wg] FW: WSGR Final Memorandum

[Stephanie Perrin]

Binding corporate rules, with a set of derogations that would be 
specified in certain contracts,  (as the kind of contractual clauses 
that clarify what can be done in certain jurisdictions) is not that hard 
to build.  International companies have been working on these mechanisms 
since the 90s,  the Article 29 group have clarified how to do it in a 
series of their Opinions, .....and the corporations and working parties 
in the International Conference of Privacy and Data Commissioners made 
sure these things would work internationally.  yes it is work but global 
operations require quite a bit of work. Time to get going on it.

The lawyer we hired for this opinion (Chris Kuner) is an expert in this, 
he has worked with tons of companies striving for compliance with the 
Directive 95/46.  ICANN is awfully late to the party, but this is 
certainly not the most complex application in the world to figure out....

Paul Schwarz (another data protection lawyer who is expert in these 
matters) wrote an excellent article on the coming confrontation between 
the US and EU over the GDPR (Harvard Law REview 2012).   He notes the 
excellent work that companies and dpas did to make sure that such 
mechanisms as contractual clauses actually worked, when dealing with the 
Directive.  Historically, the first companies to really start pushing 
contractual clauses way back in the early 90s as I recall were the 
direct marketing companies.  Anyway....the bottom line is where there is 
a will there is a way.  I hope we can muster a common will to actually 
work on solutions, instead of denying the reality of rights and data 
protection law, a position that puts various parties at risk in a 
variety of ways.

Stephanie


On 2017-09-27 10:04, Chuck wrote:
> It's hard to disagree with Sam's point that "ICANN needs a resilient and
> sustainable policy strategy here.  A strategy that sits above the weeds of
> conflicting GDPRs".  Put in other words that we have all heard many times, a
> one size fits all approach will not work for all users, for all
> jurisdictions, for all registrants, for all registrars, for all registries,
> etc.
>
> Chuck
>
> -----Original Message-----
> From: gnso-rds-pdp-wg-bounces at icann.org
> [mailto:gnso-rds-pdp-wg-bounces at icann.org] On Behalf Of Sam Lanfranco
> Sent: Wednesday, September 27, 2017 5:53 AM
> To: gnso-rds-pdp-wg at icann.org
> Subject: Re: [gnso-rds-pdp-wg] FW: WSGR Final Memorandum
>
> I remind us that we are looking at some principles to drive a process here,
> the selection of the MPDS. We should not get lost in the weeds of
> conflicting GDPRs.
>
> Nations will have differences, to be negotiated, and ICANN itself (as
> ICANN) should retain some procedural latitude to both navigate those
> conflicts, and at the same time accept that it has an organizational
> stakeholder interest in the resolution of those conflicts.
>
> This is the world we live in. It will never be neat and tidy, so ICANN needs
> a resilient and sustainable policy strategy here.
> A strategy that sits above the weeds of conflicting GDPRs.
>
> Sam Lanfranco
> (ncsg/npoc)
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