[Accred-Model] WP29 statement on WHOIS

Tue May 1 00:59:48 UTC 2018

Rubens:
You are correct, new law would have to be made – or existing law amended. But it is a given with the thousands of hours now spent by lawyers, ICANN, privacy officials and governing bodies analyzing GDPR that new law will be made in response to GDPR. My question is whether those laws in response will be made through a patchwork of regulations or statutes in multiple jurisdictions taking effect at different times to protect their unsuspecting citizens from GDPR’sits penalties; or worse, a patchwork of judge-made interpretations of GDPR’s application and scope in challenges of those penalties after they issue against citizens. And how will that cost compare with my suggestion of a modest amendment to an existing global contract network with existing registries, which amendment proposes to keep data private but provide reasonable access for notice or service of process to a registrant through a qualified third party, registered designee, with the added benefit of taking effect globally and simultaneously. And given that GDPR is essentially the enactment of government sanctioned proxy protection which may limit if not obviate the need for existing private proxy services, perhaps the privacy/proxy service providers would be willing to transfer their services to fulfill the role of registrant’s agents or their back office.

Best regards,
Scott

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From: Rubens Kuhl <rubensk at nic.br>
Sent: Sunday, April 29, 2018 7:21 PM
To: Scott Austin <SAustin at vlplawgroup.com>
Cc: BECKHAM, Brian <brian.beckham at wipo.int>; Cyntia King <cking at modernip.com>; accred-model at icann.org
Subject: Re: [Accred-Model] WP29 statement on WHOIS
Importance: High

Scott and Brian,

I believe the suggestion to be over budget for the majority of registrants, which are not corporations.

As for "we could possibly thread the needle and ask internet users to enter into a similar bargain in exchange for a private but stable and commercially reliable Internet. As the Internet has evolved and with it domain ownership as a licensed privilege and not a right", this is something that even DPAs couldn't interpret GDPR as requiring. For that to hold true, new laws would have to be enacted.

Rubens

On 29 Apr 2018, at 20:05, Scott Austin <SAustin at vlplawgroup.com<mailto:SAustin at vlplawgroup.com>> wrote:

Brian:
Exactly. My hope is that with this concept that appears to have been successful in two time tested analogues, (juridical entity formation to gain limited liability against business claims, and DMCA notice compliance to limit exposure to online service providers for infringing content) that we could possibly thread the needle and ask internet users to enter into a similar bargain in exchange for a private but stable and commercially reliable Internet. As the Internet has evolved and with it domain ownership as a licensed privilege and not a right, perhaps it is time to add a concurrent responsibility to ensure that a domain registrant can be reached by third parties in the event conduct or content factually tied to the domain impacts the rights of others. This could include instances where the site has been highjacked and it is no fault of the owner but nonetheless they need to be alerted. Registrant buy-in to a registrant controlled agent concept, within the parameters acceptable to DPAs under GDPR clearly anonymizes the registrant’s email and other personal data, but provides a pubic contact that is duty bound to perform one job, forward the notice received. This would also limit exposure to registrars and registries so long as the registrant agent has been provided by them for their registrants and the blank completed, their job is done. It is the registrant’s limited burden to provide an authentic agent to ensure they receive notice (not necessarily only negative legal complaint notice but assurance of positive beneficial notice as well).  This could be included in the price of registration, and the designation of an agent for DMCA with the Copyright office last time I checked is a whopping $6.

Best regards,
Scott

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Scott R. Austin | Board Certified Intellectual Property Attorney | VLP Law Group LLP
101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301
Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin at VLPLawGroup.com<mailto:SAustin at VLPLawGroup.com>

From: BECKHAM, Brian <brian.beckham at wipo.int<mailto:brian.beckham at wipo.int>>
Sent: Sunday, April 29, 2018 2:57 AM
To: Scott Austin <SAustin at vlplawgroup.com<mailto:SAustin at vlplawgroup.com>>; Rubens Kuhl <rubensk at nic.br<mailto:rubensk at nic.br>>; Cyntia King <cking at modernip.com<mailto:cking at modernip.com>>
Cc: accred-model at icann.org<mailto:accred-model at icann.org>
Subject: Re: [Accred-Model] WP29 statement on WHOIS

Scott, Rubens,

Just a personal observation from reading this exchange:  it seems like what you are discussing (for commercial websites, if I understand) is a sort of "anonymized email plus" which takes the GDPR's data accuracy requirement along with the current ICANN idea of an anonymized email address, and adds the additional idea of some kind of certification/registered agent (not unlike today's privacy/proxy services -- but as framed by Scott it seems to bring privacy protections and notice/due process together).

Brian
________________________________
From: Accred-Model <accred-model-bounces at icann.org<mailto:accred-model-bounces at icann.org>> on behalf of Scott Austin <SAustin at vlplawgroup.com<mailto:SAustin at vlplawgroup.com>>
Sent: Sunday, April 29, 2018 4:04 AM
To: Rubens Kuhl; Cyntia King
Cc: accred-model at icann.org<mailto:accred-model at icann.org>
Subject: Re: [Accred-Model] WP29 statement on WHOIS

Reubens:
No,  ICANN would be in compliance by providing the limited WHOIS data considered compliant, to which many registrars/registries have already moved. The only change I have suggested would be an additional line for a viable contact the registrant agrees can be used to reach them without revealing their identity, just as the personal information of shareholders (who likely are not in the public record of privately held companies) are not revealed by a corporate registered agent but legal notice of claims (e.g. a summons, demand letter etc. ) can be delivered to the registered agent with the expectation it will be delivered to those in control of the business. Similarly, in the WHOIS context, the presence of a Registrant Agent would  keep the personally identifiable  information the individual owner of the domain name private and protected so ICANN and its contracting parties are in compliance with GDPR but in exchange for the benefit of internet access the registrant’s only requirement, as when forming a company or posting website content,  is to provides a public contact (like a registered agent or DMCA designated agent). The registrant consensually agrees to provide the Registrant Agent in good faith to receive notice and forward it to the registrant as domain owner in the event the domain owner’s online conduct is challenged because they allegedly choose to use their domain as an outpost for cybersquatting or infringement or worse.  The converse, masking data to avoid notice begs the question, why would one want to own a company, a website, or a domain without being able to receive notice of a valid legal challenge or claim and why should those charged with governance condone or encourage such conduct.

Best regards,
Scott

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From: Rubens Kuhl <rubensk at nic.br<mailto:rubensk at nic.br>>
Sent: Saturday, April 28, 2018 2:36 PM
To: Cyntia King <cking at modernip.com<mailto:cking at modernip.com>>
Cc: Scott Austin <SAustin at vlplawgroup.com<mailto:SAustin at vlplawgroup.com>>; Maxim Alzoba <m.alzoba at gmail.com<mailto:m.alzoba at gmail.com>>; accred-model at icann.org<mailto:accred-model at icann.org>
Subject: Re: [Accred-Model] WP29 statement on WHOIS

GDPR directly orders data controllers to act in compliance of the law; that can't be achieved by transferring those responsibilities to the data subjects.

ccTLDs, no matter where market to commercial use or not, are out of scope of ICANN domain policies.

Rubens

On 28 Apr 2018, at 12:14, Cyntia King <cking at modernip.com<mailto:cking at modernip.com>> wrote:

Hi Scott,

I think this is a thoughtful solution to what I view as a principle concern w/ ICANN’s implementation of GDRP.

Whois always has been, and for many reasons should remain, public info.  (This is especially true of all gTLDs created for commercial purposes and several ccTLDs marketed for that commercial use like .CO.)

The onus should be on the individuals who registered domains to choose a TLD that’s private (e.g. .EU), utilize a privacy service or, as Scott suggests, to provide a “Registrant Agent”.

GDPR should not create an affirmative obligation on ICANN to change the entire Whois system when less-disruptive solutions are readily available.

Cyntia King
E:  cking at modernip
O:  +1 81-ModernIP
C:  +1 818.209.6088
<image001.png>

From: Accred-Model <accred-model-bounces at icann.org<mailto:accred-model-bounces at icann.org>> On Behalf Of Scott Austin
Sent: Saturday, April 28, 2018 8:57 AM
To: Maxim Alzoba <m.alzoba at gmail.com<mailto:m.alzoba at gmail.com>>
Cc: accred-model at icann.org<mailto:accred-model at icann.org>
Subject: Re: [Accred-Model] WP29 statement on WHOIS

Maxim:
Not suggesting DMCA as applicable law, but as an analogue for the development under ICANN governance of a public point of contact acceptable under GDPR capable of providing reasonable notice to an individual or business responsible for operating a website or domain in the event of alleged cybersquatting or infringement.

Best regards,
Scott

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Scott R. Austin | Board Certified Intellectual Property Attorney | VLP Law Group LLP
101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301
Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin at VLPLawGroup.com<mailto:SAustin at VLPLawGroup.com>

From: Maxim Alzoba <m.alzoba at gmail.com<mailto:m.alzoba at gmail.com>>
Sent: Saturday, April 28, 2018 9:48 AM
To: Scott Austin <SAustin at vlplawgroup.com<mailto:SAustin at vlplawgroup.com>>
Cc: Michael Graham (ELCA) <migraham at expedia.com<mailto:migraham at expedia.com>>; Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>>; Michael Palage <michael at palage.com<mailto:michael at palage.com>>; Rubens Kuhl <rubensk at nic.br<mailto:rubensk at nic.br>>; accred-model at icann.org<mailto:accred-model at icann.org>
Subject: Re: [Accred-Model] WP29 statement on WHOIS
Importance: High

Hello Scott,

I am not sure that examples from DMCA will help us to deal with EU GDPR (different legal systems), and to say more,
EU Companies will not breach their local laws because of DMCA.

Sincerely Yours,

Maxim Alzoba
Special projects manager,
International Relations Department,
FAITID

m. +7 916 6761580(+whatsapp)
skype oldfrogger

Current UTC offset: +3.00 (.Moscow)

On 28 Apr 2018, at 16:42, Scott Austin <SAustin at vlplawgroup.com<mailto:SAustin at vlplawgroup.com>> wrote:

Michael Graham, Mike Palage, Anne:
This discussion opens a door for me to make a suggestion, which I hope someone at ICANN can address. Every State in the U.S. requires an individual who seeks to form an entity to engage in business in exchange for limiting liability, whether a corporation, partnership or LLC must provide a registered agent, upon whom service of process can be made and who provides their own contact information and accepts the appointment. Similarly, the DMCA requires an OSP/ISP to provide a designated agent with the US Copyright office as a point of contact for notice of infringing content takedowns in order to avoid liability under safe harbors under that Act. To traverse this ICANN v GDPR impasse, instead of liability on ICANN or its contracting registrars and registries, put the onus on registrants, that as a condition to an Internet presence to engage in online commerce or communication, registrants (individuals as well as businesses) must provide a verifiable registered agent (registrant agent?) or designated agent similar to state corporate requirements and the DMCA, which would be designated as such in WHOIS or RDAP as one additional link or email address line in the database, but whose full contact information could be accessed in a registry like the one available through the US Copyright Office (and yes Anne, most of the DMCA agents are IP lawyers!). To encourage compliance the provision could also require that the applicable registry/registrar that controls the domain only ensures that the line is not left blank, but is required to register the domain name. The registrant remains responsible for ensuring the registered agent is valid and agrees contractually that to continue to sustain its registration the registered agent designated must be subject to vetting/random inspection or testing to demonstrate that it can reach the registrant. If this registrant based condition has already been used or dismissed, my apologies, as I have been working on several other matters.

Best regards,
Scott

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Scott R. Austin | Board Certified Intellectual Property Attorney | VLP Law Group LLP
101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301
Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin at VLPLawGroup.com<mailto:SAustin at VLPLawGroup.com>

From: Accred-Model <accred-model-bounces at icann.org<mailto:accred-model-bounces at icann.org>> On Behalf Of Michael Graham (ELCA)
Sent: Friday, April 27, 2018 3:44 PM
To: Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>>; 'Michael Palage' <michael at palage.com<mailto:michael at palage.com>>; 'Rubens Kuhl' <rubensk at nic.br<mailto:rubensk at nic.br>>; accred-model at icann.org<mailto:accred-model at icann.org>
Subject: Re: [Accred-Model] WP29 statement on WHOIS

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<mailto:michael at palage.com>>; 'Rubens Kuhl' <rubensk at nic.br<mailto:rubensk at nic.br>>; accred-model at icann.org<mailto: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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Lewis Roca Rothgerber Christie LLP

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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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