[Accred-Model] WP29 statement on WHOIS

Fri Apr 27 19:43:32 UTC 2018

Agree that this would be a perfect time for an Expedited PDP.

Michael R.

From: Accred-Model [mailto:accred-model-bounces at icann.org] On Behalf Of Aikman-Scalese, Anne
Sent: Friday, April 27, 2018 8:52 AM
To: 'Michael Palage' <michael at palage.com>; 'Rubens Kuhl' <rubensk at nic.br>; accred-model at icann.org
Subject: Re: [Accred-Model] WP29 statement on WHOIS

What concerns me most here is the apparent failure of the much-lauded Multistakeholder Bottom-up policymaking process.    It is clear that there ARE in fact circumstances where ICANN Board and staff must act in a top-down manner in the Global Public Interest.    WHOIS was removed as a public interest obligation in the IANA transition.  It was said that it would not matter.  Many knew that it would matter – if only because ICANN would have been forced to deal with the conflict between that obligation and the GDPR at a much earlier stage – we would have had an anonymized e-mail address system by now.

The victim is the Global Public Interest.  The root cause is the Bottom-up policymaking process and the desire on the part of some stakeholders to “look the other way” on the issue of proportionality.  Goram is a smart guy. Everyone on the Board is smart.  Everyone on the Board also has a fiduciary duty to avoid risk to the corporation.  I am certain that these individuals were advised that avoiding that risk involved avoiding being classified as a “joint data controller”.  Hence, the delay while the perfect storm was developing between ICANN controlling risk and various stakeholders preferring the present outcome.

It really bugs me when Internet policy just ends up creating more work for IP lawyers. ;-(.

All that said, I do favor the Expedited PDP.  I also favor ICANN enacting an Emergency Policy under Specification 2 of the RA that requires registrants to provide an e-mail that does not contain personal information.   The mailing list vehicle for this could be the same e-mail registrars send out to ask for verification of information.

No one ever said that conditioning services on the provision of an e-mail address that does NOT contain personal information is a GDPR violation.  (Apparently some ccTLDs have been requiring this for quite a while.)
Anne

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office

520.879.4725 fax

AAikman at lrrc.com<mailto:AAikman at lrrc.com>

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From: Accred-Model [mailto:accred-model-bounces at icann.org] On Behalf Of Michael Palage
Sent: Friday, April 27, 2018 8:14 AM
To: 'Rubens Kuhl'; accred-model at icann.org<mailto:accred-model at icann.org>
Subject: Re: [Accred-Model] WP29 statement on WHOIS

Rubin,

I read that article with interest as well.  While there has not been a lot of community consensus surrounding GDPR, hopefully the ICANN community could unite around the question posed in the article, “who” came up with this non-viable solution - was is it ICANN legal or an external law firm?

I think we the community deserve an answer to this fundamental question. Hopefully there is one or more ICANN Board members on this list that could answer this fundamental question.

The next big question, will that person or law firm be held accountable for the “fantasy land” advice  (per the article) that was sold to the community, and wasted the little precious time we had to prepare for the GDPR deadline.  Sadly I do not think Dan Halloran, ICANN’s Chief Data Protection Officer can be held accountable because it appears that John Jeffery has made sure he has had zero visibility in any of the meetings with the Article 29 WP to date.

While I have been known to file my fair share of DIDP requests with ICANN , anyone interested in filing a joint one to get to the bottom of this latest ICANN GDPR debacle please contact me offlist.

Best regards,

Michael

From: Accred-Model <accred-model-bounces at icann.org<mailto:accred-model-bounces at icann.org>> On Behalf Of Rubens Kuhl
Sent: Friday, April 27, 2018 10:45 AM
To: accred-model at icann.org<mailto:accred-model at icann.org>
Subject: [Accred-Model] WP29 statement on WHOIS

WP29 provided a member of the press a statement putting an end to the moratorium idea:
https://www.theregister.co.uk/2018/04/27/europe_icann_whois_gdpr/?page=1

But, it doesn't come with a link to a published statement, so my skepticism prevents me from taking it at face value. But the likelihood of it being true is pretty high.

That said, let's gear up to get a layered lawful model off the ground. The sooner, the better.

Rubens

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