[gnso-rds-pdp-wg] WSGR Final Memorandum
allison nixon
elsakoo at gmail.com
Thu Sep 28 17:42:42 UTC 2017
>> So, I can see a day that if privacy advocates and/or EU legislation
fears prevent such a Best Practice as proper WHOIS records, the service
providers will simply choose practices, such as 'you cannot access our
service unless you have public whois information available'.
It's already happening. Try sending an e-mail using a domain behind WHOIS
privacy. Some anti-spam systems drop it straight in the garbage because
WHOIS privacy is already a negative reputation point. If WHOIS gets shut
down, I fully expect groups like Spamhaus, M3AAWG, APWG, etc, to publish a
set of guidelines that registrants need to abide by in order to send mail,
or be accessible by people behind corporate firewalls that block based on
reputation. ICANN must understand that they are at risk of losing relevancy
if they want to take this hardline approach, because if a law breaks the
continued functioning of a network, the network will route around it.
Look at the "cookies" EU law. Did that actually stop any websites from
using cookies? No, it just created a popup that no one reads but everyone
clicks through to visit the website. Because breaking cookies breaks
websites.
>>Some of us have real jobs too..
which is the main reason why i can't spend 8 hours every day watching this
group, unlike some people here who have been active in this group for years
now.
My response to Chuck's email earlier, I bolded the responses and tagged the
start and end of my replies for clarity:
"independent answers to the same questions we asked the European data
> protection experts earlier in the year"
> [Chuck Gomes] That was a request from WG members who felt that the DP
> experts might be biased. The questions were developed by the WG. There
> were two primary reasons for using the same questions: 1) both groups would
> be responding to the same questions and therefore make it easy to compare;
> 2) the questions were approved by the WG.
*<allison>I don't think anyone accused the DP experts of being biased. The
objection was that the questions themselves were biased. The words
"phishing" and "spam" and "malware" never once appeared in this entire
document, despite being major core issues. The only abuse issues that were
focused on were in relation to intellectual property violation and
harassment of women, both of which are not the major issues most of us deal
with on a daily basis(not to belittle them but they are generally not the
reason why we are here today). The word "fraud" was mentioned once in a
question and then never directly addressed in the response.*
*Additionally, my entire industry was grossly misrepresented in question
#6. None of us operate with police powers, and none of us pretend to have
any. When we submit a complaint to a registrar about one of their customers
breaking the law, the illegality of the act provides necessary
justification for the registrar to drop the customer without a refund. This
is not prosecution of a crime, and claiming it is such is a lie. Evidence
of breaking the law is necessary because registrars aren't just going to
take down any customer we say we don't like. I wholly object to the entire
line they continued on about cybersecurity companies and "quasi-police
powers", because the question never differentiated between civil and
criminal actions and it was therefore misleading. *
*None of the questions addressed the issues that registrants have where
their WHOIS and other reputation points affect the de-facto functionality
of a domain, for example a domain's functionality is hampered when it is on
blocklists. Or if someone sends a complaint against the domain and has no
tools to differentiate the registrant from the criminal (as registrar
accounts are often hacked), then the incorrect accusation can also affect
the operability of the domain as it is mistakenly taken down in confusion.
None of the questions ask about conflicts between GDPR and basic
network-level-functionality of domains.*
*Also, none of the questions ask if a free no-obligation alternative (whois
privacy protect) enhances the validity of consent given for making WHOIS
records public. </allison>*
> So we weren't allowed to ask questions of these legal experts? You know,
> they can't magically divine all legitimate use cases. The session with the
> EU data protection experts earlier this year is the exact same one we
> objected to because anti abuse use cases got exactly zero representation.
> So why choose that exact set of questions again especially since an entire
> group of people have joined the group afterwards(actually, due to this
> specific problem of lack of representation)? And then label it "final",
> really.
> [Chuck Gomes] We didn’t ask them to consider use cases except as they were
> relevant to the questions we asked; that is our job and we prepared a list
> of those a long time ago. We asked them to focus on their understanding of
> European Data Protection law. Our WG has a good mix of people that use RDS
> data for different uses.
*<allison>And his answers are borderline useless. The scenarios presented
were extremely poor, and not reflecting today's Internet and the problems
network operators face. For example, when he writes "This means that the
term 'vital interest' is to be interpreted as referring to an individual’s
life, health, safety, or other such interest that is essential to their
physical wellbeing", he goes on to talk about IP violations, the rights of
a child, the economic interests of a search engine, finally concluding "we
believe that the **conditions for using the 'legitimate interests' legal
basis would not be satisfied".*
*That's a complete misrepresentation of the interests at stake here. The
issue at hand is not the economic interests of one company nor about mere
copyright infringement. The WHOIS data resource is used to combat all types
of fraud, international espionage, rigging of elections, and so many
hostile attacks. Some of these attacks, especially DDOS, frequently
threaten basic functionality of the Internet. It has an international
strategic value and promotes lawful behavior far more than it hurts. It's
used to create cleaner, safer networks. There are countless documented
instances where WHOIS played a key role and where the replacement system
would have allowed the malicious behavior to continue. All of these facts
have been conveniently left out of the question, and since the lawyer can't
be expected to know all this, he has no choice but to conclude that the
legitimate interests provided are too weak. </allison>*
Havent gone through it yet, will do so as i get time. Expecting to see the
> same result one can expect when one doesn't represent entire groups of
> constituencies.
> [Chuck Gomes] What do you mean by representing ‘entire groups of
> constituencies’? Do you represent an entire constituency? Are you aware
> of any constituencies who are not represented in the WG? If so, please
> encourage them to participate.
*<allison>Dozens of people joined this mailing list after numerous events
demonstrated that this working group did not consider the overall well
being of the Internet, and had a completely skewed idea of the problems the
Internet faces today. People were outraged that this group was going in the
direction it was going, ignoring how the Internet actually works. The fact
that these questions were chosen- and the fact that the new
membership(especially those that joined after the questions were initially
asked) were not given any opportunity to provide input on questions to the
lawyer- does not reflect well on the leadership of this working group. Even
when the original questions were created, as far as I can tell, only people
physically present at that meeting had any chance to provide input. For
those of us with jobs in operations, being ever-present for this working
group is impossible, and none of us have the stamina that some of the
people here have, because we are busy working. *
*At its most charitable interpretation, the choice of these specific
questions could be an innocent oversight or miscommunication. At its least
charitable, it looks like ICANN's money was wasted on a procedural trick to
keep facts out of the conversation and continue to push a narrow agenda.*
*People from numerous unrelated Internet companies and law firms flooded
this group earlier this year once sunshine was shed on this group's
activities. Maybe that's important. Please take it seriously. </allison>*
On Wed, Sep 27, 2017 at 6:22 PM, Michael Peddemors <michael at linuxmagic.com>
wrote:
> IMHO, If ICANN cannot figure out how to make a proper functioning WHOIS
> policy, we have to remember that the community at large will, and then
> simply, ICANN will loose relevance on this issue.
>
> No one passed a law that a mail server had to have a functioning PTR
> record, (well yes, some international spam legislations clearly spelled out
> the need for clearly specifying the operator) but if you want to send email
> today, functionally you need a PTR record.
>
> Only problem is, that often it is the biggest players that set those
> standards, and it is the role of organizations like ICANN to level the
> field, and make sure that directions aren't dictated by the biggest players
> on the block, and never more so in a world of consolidation and cloud
> providers.
>
> I think it was Yahoo that was one of the first big players to simply not
> accept connections from IP(s) with no PTR, and I know we were one of the
> early adopters to that strategy..
>
> So, I can see a day that if privacy advocates and/or EU legislation fears
> prevent such a Best Practice as proper WHOIS records, the service providers
> will simply choose practices, such as 'you cannot access our service unless
> you have public whois information available'.
>
> It would be far better if ICANN can understand the importance of that
> need, and make a statement that everyone can get behind and point to, that
> levels that field, in 'spite' of possible contradictory privacy information.
>
> Let's just simple keep these two conversations separate, one should NOT
> affect the other, this isn't a privacy vs information publishing standards
> issue, we can have both.
>
> (And again, I assert that simply 'informed consent' can always deal with
> any situations where they conflict)
>
> -- Michael --
>
> PS, my concern is that this lengthy wrangling prevents real work from
> getting done, and the participants who are integral to this conversation
> will fall by the way side, and the lobbyist's will simply wear them down ..
>
> Some of us have real jobs too..
>
>
> On 17-09-27 02:58 PM, John Bambenek via gnso-rds-pdp-wg wrote:
>
>> A simple policy proscription would be, for instance, to say under US law
>> if you get a domain under the control of a US registrar, we need you to
>> consent to full disclosure. Don't like it, pick a European ccTLD. I don't
>> advocate that, mind you, but that's the kind of policy balkanization could
>> produce.
>>
>> j
>>
>>
>> On 09/27/2017 04:31 PM, Paul Keating wrote:
>>
>>> I am failing to understand how such a walled-garden approach will solve
>>> anything.
>>>
>>> 1.EU registrars/registries would still have to deal with GDPR.
>>>
>>> 2.Registrars are not aided by the distinction since they would still end
>>> up with EU customers and EU registrant data.
>>>
>>> PRK
>>>
>>> From: <gnso-rds-pdp-wg-bounces at icann.org <mailto:gnso-rds-pdp-wg-bounce
>>> s at icann.org>> on behalf of jonathan matkowsky <
>>> jonathan.matkowsky at riskiq.net <mailto:jonathan.matkowsky at riskiq.net>>
>>> Date: Wednesday, September 27, 2017 at 11:03 PM
>>> To: Rubens Kuhl <rubensk at nic.br <mailto:rubensk at nic.br>>
>>> Cc: RDS PDP WG <gnso-rds-pdp-wg at icann.org <mailto:gnso-rds-pdp-wg at icann.
>>> org>>
>>> Subject: Re: [gnso-rds-pdp-wg] WSGR Final Memorandum
>>>
>>> Assuming for argument's sake that's true without taking any
>>> position as I'm still catching up from a week ago, I'm not sure
>>> this should be dismissed without consideration as a possibility,
>>> although obviously not by any stretch of the imagination ideal -->
>>> non-EU registrars block EU registrants, and registries contract
>>> with non-EU registrars.
>>>
>>> On Tue, Sep 26, 2017 at 8:25 PM, Rubens Kuhl <rubensk at nic.br
>>> <mailto:rubensk at nic.br>> wrote:
>>>
>>>
>>> On Sep 26, 2017, at 7:17 PM, John Horton
>>>> <john.horton at legitscript.com
>>>> <mailto:john.horton at legitscript.com>> wrote:
>>>>
>>>> Much of this problem goes away if we all agree that EU-based
>>>> registrars should henceforth only be allowed to accept
>>>> registrants in the EU. Aside from the effect on EU
>>>> registrars' revenue, what's the logical argument against that
>>>> from a policy perspective?
>>>>
>>>> After all, isn't the purpose of the GDPR to protect _EU
>>>> residents_?
>>>>
>>>
>>> That's correct, but the conclusion is not. Non-EU registrars
>>> are also subject to GDPR if targeting EU customers, which
>>> could be as simple as providing services in EU languages and
>>> accepting registration transactions from the EU.
>>> So, for the problem to go away non-EU registrars would need to
>>> block EU registrants, and registries would only be able to
>>> enter contracts with non-EU registrars.
>>>
>>> So EU users would either be happy using numeric IP addresses,
>>> or develop a naming system of their own. Then we would have
>>> balkanisation, this time actually including the original balkans.
>>>
>>>
>>> Rubens
>>>
>>>
>>>
>>>
>>>
>>>
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>>
>>
>>
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>
>
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