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

Wed Sep 27 18:01:23 UTC 2017

I did a google search and found the following: https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_schwartz.pdf. Stephanie, can you confirm this is the article you were referring to?

Best regards,

Marika

From: <gnso-rds-pdp-wg-bounces at icann.org> on behalf of jonathan matkowsky <jonathan.matkowsky at riskiq.net>
Date: Wednesday, September 27, 2017 at 11:57
To: Stephanie Perrin <stephanie.perrin at mail.utoronto.ca>
Cc: "gnso-rds-pdp-wg at icann.org" <gnso-rds-pdp-wg at icann.org>
Subject: Re: [gnso-rds-pdp-wg] FW: WSGR Final Memorandum

Hi, Stephanie. I am getting caught up as I was traveling last week, and then the Jewish holidays...I was hoping you can send me a copy of that law review article you referenced or a citation so I can pull it if not publicly available?  Thanks, in advance, Jonathan

On Wed, Sep 27, 2017 at 7:28 AM, Stephanie Perrin <stephanie.perrin at mail.utoronto.ca<mailto:stephanie.perrin at mail.utoronto.ca>> wrote:

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>

[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<mailto: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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