[council] Fw: [Gnso-epdp-team] Report on Small team on roles & responsibilities in preparation for EPDP Team Meeting #25

Rafik Dammak rafik.dammak at gmail.com
Tue Nov 13 11:45:01 UTC 2018

Hi Ayden,

Thanks for sharing this.
the EPDP team as a whole didn't have a chance to discuss the matter since
it was raised less than 24hours ago in small team call and Thomas just
shared his summary a few minutes ago. There was no discussion yet at the
EPDP team level about revising charter or similar thing.



Le mar. 13 nov. 2018 à 20:30, Ayden Férdeline <icann at ferdeline.com> a
écrit :

> Hi all,
> I am forwarding the below message along for information purposes as there
> has been a suggestion raised that a matter may need to be brought back to
> the Council to consider revising the EPDP charter. It might be premature to
> be forwarding this along, and nothing may come of it, but I figure the
> Council should be aware that the idea has been floated.
> Kind regards, Ayden
> ‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐
> On Tuesday, 13 November 2018 12:09, Thomas Rickert <epdp at gdpr.ninja>
> wrote:
> Hello Marika, all,
> yesterday, the call of the small roles & responsibilities team had its
> call.
> We thank JJ and Erika from ICANN Org for attending the call.
> I will only be able to attend the first 90 mins of the call and I do not
> know whether it is possible to squeeze in a report and discussion of the
> outcome of our call while I am in attendance. Therefore, I would like to
> give a brief update in writing.
> The plan for the meeting was to discuss
> - what roles GDPR offers and if these are sufficiently described in the
> language I offered for the report
> - discussion of Rationale for joint controller vs. other scenarios
> - options and limitations of policy work / charter limitations
> - strategy to implementation
> I hoped we could make sufficient progress during the call so that the
> small team could suggest a solid path forward to the EPDP plenary.
> JJ reported to us that ICANN Org has a 10 page memo in the making in which
> concerns and ICANN’s views on the roles are described.
> He said that we should not jump to the conclusion that a joint controller
> scenario is given before the roles and responsibilities for the individual
> processing activities are determined.
> In his view, it is like putting the cart before the horse if a joint
> controller scenario is adopted before all parties had a chance to assess
> the impact on their liabilities and that joint controllership might not
> adequately reflect the risks the respective parties might want to take.
> We then discussed that it is not really a question of what the parties
> want to choose to best suit their wishes, but a question of what the legal
> determination of the setup is. Several participants expressed their view
> that a joint controller scenario is likely present and therefore a joint
> controller agreement needs to be negotiated to reflect the roles and
> responsibilities and the required indemnifications etc. need to be put in
> place to associate the risks appropriately.
> There are two issues with this that the EPDP Team and - in particular -
> the leadership needs to decide.
> 1. The issue of legal assessment vs. policy work
> The question was brought up by Kurt and JJ in particular. They said -
> rightfully - that our group cannot really give legal advice. We have
> discussed the unfortunate situation that our policy group needs to do both
> compliance work as well as policy work in the EPDP plenary on multiple
> occasions before. We have a charter that requires us to speak to the
> responsibilities of the parties and this is just not possible without being
> transparent (in our report) about what concept we think is applicable. So I
> think the plenary needs to discuss and confirm that we will take position
> on this (which can be vetted during the public comment period).
> If the EPDP Team does not wish to take a position on this question, I
> think we need to go back to the GNSO Council to ask for a revision of the
> charter.
> 2. Timing
> We were not given any indication as to how quickly a memo would be shared
> with the EPDP Team. JJ said that their memo should inform and help our work
> but it should not stand in the way of our work.
> In my view (which was shared by several participants), the EPDP Team must
> know what ICANN org’s view on the matter is. The SGs and Cs need to be able
> to take into account the concerns and suggestions that ICANN Org might have
> to inform their own positioning. Also, I think we cannot detach our work
> from ICANN org’s position. It would be unfortunate - to say the least - if
> our group came up with a recommendation for the parties to negotiate a JCA
> just to find out that ICANN Org will refuse to implement that
> recommendation. Thus, clarity is required as soon as possible and a report
> should not be published before the memo has been shared, analyzed,
> discussed in the EPDP team and potential revisions to the initial report
> have been made.
> In closing, let me be honest with the entire team and express my
> frustration with the process.
> We have asked both Board liaisons as well as ICANN staff multiple times to
> share any legal memos / opinions there are to inform our discussions. Also,
> we have asked whether there would be concerns by ICANN Org with respect to
> entering into a joint controller agreement or data processing agreements in
> several meetings. We were not given any indication whatsoever that there
> could be problems. It is unfortunate to only learn about ICANN’s memo and
> that there are concerns a few days before the planned publication of our
> report.
> Kind regards,
> Thomas
> Am 12.11.2018 um 16:25 schrieb Marika Konings <marika.konings at icann.org>:
> Dear All,
> Please find below the proposed agenda for the next EPDP Team meeting which
> is scheduled for Tuesday 13 November at 14.00 UTC.
>    - In relation to agenda item #3, please find attached an updated
>    version of the proposed language for inclusion in the Initial Report in
>    which staff has aimed to capture some of the input that was received in
>    response to the Initial Report through the google doc, as well as input
>    received on the mailing list.
>    - In relation to agenda item #4, please find attached a table which
>    provides an overview of the changes proposed by EPDP Team members that
>    staff didn’t feel comfortable applying because e.g. either the proposed
>    change is not clear, the proposed change affects previously agreed
>    preliminary agreements / text, or is a substantive change that requires
>    further discussion / consideration by the full EPDP Team (see *https://docs.google.com/document/d/1SoNTnvvadNQ8nX_-OxN4mtsd-gfLNxT54GXSXyGQwEQ/edit?ts=5be6721f
>    <https://docs.google.com/document/d/1SoNTnvvadNQ8nX_-OxN4mtsd-gfLNxT54GXSXyGQwEQ/edit?ts=5be6721f>*
>     for all comments received to date). In certain cases, staff has
>    proposed a path forward, but would appreciate EPDP Team/commenter feedback
>    before applying this change. Note that a number of comments were made in
>    relation to preliminary recommendations and/or text that is still under
>    consideration. It is the expectation that this input will be raised in the
>    context of those discussions.
> FYI, staff expects to share an updated version of the Initial Report later
> today so you can see how other input has been addressed (non-substantial
> issues) as well as how other aspects are coming together as a result of the
> EPDP Team work over the last couple of meetings.
> Best regards,
> Caitlin, Berry and Marika
> ======================
> *EPDP Meeting #25 Agenda*
> Tuesday, 13 November 2018
>    1. Roll Call & SOI Updates (5 minutes)
>    2. Welcome and Updates from EPDP Team Chair (5 minutes)
>    1. Initial Report finalization status, incl. items remaining to be
>       addressed and schedule for the week ahead
>       2. Confirm status and next steps in relation to natural vs. legal
>       and geographic status
>       3. Review of outstanding action items
>       4. Other updates, if applicable
>    1. Data Redaction (see attached)
> Objective of discussion:
>    1. Confirm language for inclusion in the Initial Report in relation to
>    data redaction as well as email communication
>    1. Review latest version of language for inclusion in relation to data
>       redaction
>       2. Consider charter questions:
> f2) Should standardized requirements on registrant contact mechanism be
> developed?
> f3) Under what circumstances should third parties be permitted to contact
> the registrant, and how should contact be facilitated in those
> circumstances?
> And related draft recommendation:
> In relation to facilitating email communication between third parties and
> the registrant, the EPDP Team recommends that [current requirements in the
> Temporary Specification that specify that a Registrar MUST provide an email
> address or a web form to facilitate email communication with the relevant
> contact, but MUST NOT identify the contact email address or the contact
> itself, remain in place. [[[Other to be decided]]].
>    1. Confirm next steps, if any
>    1. Commence review & discussion of comments / input received on
>    Initial Report
> Objective of discussion:
> (1) Review proposed changes / comments on the Initial Report that require
> EPDP Team consideration
> (2) Agree on if/how these proposed changes / comments are to be applied to
> the Initial Report
>    1. Commence review of proposed changes / comments on the Initial
>       Report (see list attached)
>       2. Confirm approach for addressing these
>       3. Confirm next steps, if any
>    1. Wrap and confirm next meeting to be scheduled for Wednesday 14
>    November / Thursday 15 November at 14.00 UTC (dependent on progress made).
>    1. Confirm action items
>       2. Confirm questions for ICANN Org, if any
> *Marika Konings*
> *Vice President, Policy Development Support – GNSO, Internet Corporation
> for Assigned Names and Numbers (ICANN) *
> *Email: marika.konings at icann.org <marika.konings at icann.org>  *
> *Follow the GNSO via Twitter @ICANN_GNSO*
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> <Data Redaction - up 12 November 2018.docx><Initial Report changes for
> discussion - upd 12 November 2018.docx>
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