[gnso-rds-pdp-wg] WSGR Final Memorandum
Volker Greimann
vgreimann at key-systems.net
Fri Sep 29 08:02:03 UTC 2017
Alliso,,
the reason why phishing, spam, and malware never appeared in the
document is because they have nothing to do with the question of privacy
rights. Except that violating such rights exposes the data subjects to
those forms of abuse.
Best,
Volker
Am 28.09.2017 um 19:42 schrieb allison nixon:
> >> 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 <mailto: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 <http://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-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
> jonathan matkowsky <jonathan.matkowsky at riskiq.net
> <mailto:jonathan.matkowsky at riskiq.net>
> <mailto: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>
> <mailto: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>
> <mailto: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>
> <mailto: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>
> <mailto: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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Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung.
Mit freundlichen Grüßen,
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