[Gdd-gnso-ppsai-impl] Request for IRT Feedback: LEA Framework Specification, Receipt Process's Application to High Priority Requests
Theo Geurts
gtheo at xs4all.nl
Fri Feb 9 16:02:48 UTC 2018
Agree with Lindsay.
Theo
On 9-2-2018 16:42, Lindsay Hamilton-Reid wrote:
>
> +1 Sara with one caveat. I would prefer that it stated ‘Provider
> shall use reasonable efforts to respond to the request as soon as
> possible’ as opposed to Provider shall use its best efforts to action
> the request within 24 hours. Action suggests that the Provider should
> have physically done something, which may or may not be possible and
> puts an onerous burden on the Provider.
>
> Many thanks
>
> Lindsay
>
> *Lindsay Hamilton-Reid*
>
> Senior Legal Counsel**
>
> *Direct: *+44 (0)1452 509145 | *Mobile:* 07720 091147|
> *Email:*Lindsay.Hamilton-Reid at 1and1.co.uk
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> *From:*Gdd-gnso-ppsai-impl
> [mailto:gdd-gnso-ppsai-impl-bounces at icann.org] *On Behalf Of *Sara Bockey
> *Sent:* 09 February 2018 15:38
> *To:* gdd-gnso-ppsai-impl at icann.org
> *Subject:* Re: [Gdd-gnso-ppsai-impl] Request for IRT Feedback: LEA
> Framework Specification, Receipt Process's Application to High
> Priority Requests
>
> Personally, clarifying the word “action” is only marginally helpful.
> I’m more concerned with the content and the fact that the LEA
> framework as currently written creates a presumption of disclosure.
>
> To answer Peter’s question, I’m not saying “Providers get to choose
> whether to respond to law enforcement requests at all”, but the
> Provider DOES get to follow due process and doesn’t have to volunteer
> information just because LEA asks for it.
>
> That said, perhaps we can use the following as a starting point for
> our conversation regarding High Priority on Tuesday. I will be the
> first to say this language needs work and input from others:
>
> Where a disclosure request is categorized as High Priority, LEA will
> make every effort to contact the Provider directly to discuss the
> matter, and should it be determined that Provider has useful
> information, Provider shall use its best efforts to action the request
> within 24 hours, noting that a court order/subpoena may still be
> required prior to release of any information. Registrar will not be
> required to take any action in contravention of applicable law.
>
> Regards,
>
> Sara
>
> *sara bockey*
>
> *sr. policy manager | **Go**Daddy^™ *
>
> *sbockey at godaddy.com <mailto:sbockey at godaddy.com> 480-366-3616*
>
> *skype: sbockey*
>
> //
>
> /This email message and any attachments hereto is intended for use
> only by the addressee(s) named herein and may contain confidential
> information. If you have received this email in error, please
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>
> *From: *Gdd-gnso-ppsai-impl <gdd-gnso-ppsai-impl-bounces at icann.org
> <mailto:gdd-gnso-ppsai-impl-bounces at icann.org>> on behalf of Michele
> Neylon <michele at blacknight.com <mailto:michele at blacknight.com>>
> *Reply-To: *"gdd-gnso-ppsai-impl at icann.org
> <mailto:gdd-gnso-ppsai-impl at icann.org>" <gdd-gnso-ppsai-impl at icann.org
> <mailto:gdd-gnso-ppsai-impl at icann.org>>
> *Date: *Thursday, February 8, 2018 at 8:36 AM
> *To: *"gdd-gnso-ppsai-impl at icann.org
> <mailto:gdd-gnso-ppsai-impl at icann.org>" <gdd-gnso-ppsai-impl at icann.org
> <mailto:gdd-gnso-ppsai-impl at icann.org>>
> *Subject: *Re: [Gdd-gnso-ppsai-impl] Request for IRT Feedback: LEA
> Framework Specification, Receipt Process's Application to High
> Priority Requests
>
> Steve
>
> That might help, though I’ll defer to Sara and Co
>
> Regards
>
> Michele
>
> --
>
> Mr Michele Neylon
>
> Blacknight Solutions
>
> Hosting, Colocation & Domains
>
> https://www.blacknight.com/
>
> http://blacknight.blog/
>
> Intl. +353 (0) 59 9183072
>
> Direct Dial: +353 (0)59 9183090
>
> Personal blog: https://michele.blog/ <https://michele.blog/>
>
> Some thoughts: https://ceo.hosting/ <https://ceo.hosting/>
>
> -------------------------------
>
> Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business
> Park,Sleaty
>
> Road,Graiguecullen,Carlow,R93 X265,Ireland Company No.: 370845
>
> *From: *Gdd-gnso-ppsai-impl <gdd-gnso-ppsai-impl-bounces at icann.org
> <mailto:gdd-gnso-ppsai-impl-bounces at icann.org>> on behalf of Steven
> Metalitz <met at msk.com <mailto:met at msk.com>>
> *Reply-To: *"gdd-gnso-ppsai-impl at icann.org
> <mailto:gdd-gnso-ppsai-impl at icann.org>" <gdd-gnso-ppsai-impl at icann.org
> <mailto:gdd-gnso-ppsai-impl at icann.org>>
> *Date: *Thursday 8 February 2018 at 15:12
> *To: *"gdd-gnso-ppsai-impl at icann.org
> <mailto:gdd-gnso-ppsai-impl at icann.org>" <gdd-gnso-ppsai-impl at icann.org
> <mailto:gdd-gnso-ppsai-impl at icann.org>>
> *Subject: *Re: [Gdd-gnso-ppsai-impl] Request for IRT Feedback: LEA
> Framework Specification, Receipt Process's Application to High
> Priority Requests
>
> I wonder whether part of the problem here is the use of “action” as a
> verb. I certainly don’t read that as establishing a “presumption of
> disclosure.” I read it as saying that the provider will take action
> on the request within 24 hours (or whatever the time frame is, for
> non-priority requests). That action could be (1) disclosure; (2)
> refusal to disclose, based on one of the grounds listed in the
> specification; or (3) refusal to disclose for the time being, based on
> the LEA not having provided all the needed information, as spelled out
> in the specification. ( I guess (3) is really a subset of (2), since
> 4.2.2.1 provides this ground for non-disclosure.)
>
> So would it clarify to define the word “action” where it appears in
> 4.1.1 as follows (or something similar): “As used in this subsection,
> “action” means (i) to disclose to the LEA requestor, or (ii) to refuse
> to disclose to the LEA requestor, citing one or more of the reasons
> listed in 4.2.2”?
>
> Another way to draft this is to append to “action” the parenthetical
> “in accordance with subsection 4.2,” which includes both the options
> listed (as well as the option of extending the deadline, “in
> exceptional circumstances,” see 4.2.4).
>
> Could Sara or others give some examples of reasons beyond those listed
> in 4.2.2 on which a Provider might validly rely for non-disclosure?
>
> Steve Metalitz
>
> *image001*
>
> *Steven J. Metalitz *|***Partner, through his professional corporation*
>
> T: 202.355.7902 | met at msk.com <mailto:met at msk.com>
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> *From:*Gdd-gnso-ppsai-impl
> [mailto:gdd-gnso-ppsai-impl-bounces at icann.org] *On Behalf Of *Amy Bivins
> *Sent:* Thursday, February 08, 2018 9:25 AM
> *To:* gdd-gnso-ppsai-impl at icann.org <mailto:gdd-gnso-ppsai-impl at icann.org>
> *Subject:* Re: [Gdd-gnso-ppsai-impl] Request for IRT Feedback: LEA
> Framework Specification, Receipt Process's Application to High
> Priority Requests
>
> Thank you, Sara, for this very specific proposed change. What do
> others think of this language?
>
> *From:*Gdd-gnso-ppsai-impl
> [mailto:gdd-gnso-ppsai-impl-bounces at icann.org] *On Behalf Of *Sara Bockey
> *Sent:* Thursday, February 8, 2018 9:22 AM
> *To:* gdd-gnso-ppsai-impl at icann.org <mailto:gdd-gnso-ppsai-impl at icann.org>
> *Subject:* Re: [Gdd-gnso-ppsai-impl] Request for IRT Feedback: LEA
> Framework Specification, Receipt Process's Application to High
> Priority Requests
>
> Dear Amy,
>
> I will reiterate my concern that the LEA framework, as currently
> written, creates a presumption of disclosure if LEAs check all the
> right boxes. Because this decision ultimately resides with the
> provider, based on due process, this must be reflected in the
> framework. Therefore, the following is problematic:
>
> You wrote:
>
> “the Provider must review the request and confirm to the LEA requester
> that it has been received and contains the relevant information
> required to meet the minimum standard for acceptance (See 3.2.1 of
> Specification 4). (2) The Provider must then action the request in
> accordance with the priority level (within 24 hours for “high
> priority” requests (4.1.2); or within the timeline requested by LEA,
> if possible, for other requests (See 4.1.3).”
>
> At the very minimum, I believe we need to add “without limitations”
> back to section 4.2.2. (Forgive me, I can’t recall where we landed on
> this and fear if I wait to see the revised document it will be deemed
> “too late” to discuss.) What’s listed under 4.2.2 should be
> non-limiting examples for when disclosure can be reasonably refused.
>
> Regarding high priority requests, Volker has proposed:
>
> "Where a disclosure request has been categorized as High Priority,
> Provider shall use its best efforts towards actioning the request
> within 24 hours on business days or as close as possible to this."
>
> Another option could be something like “actioning the request within
> 24 hours for up to 90% (or some other level determined acceptable by
> Providers) of incidences.”
>
> Your proposed language, namely, *“Where a disclosure request has been
> categorized as High Priority, this must be actioned within 24 hours of
> completion of the receipt process outlined in Section 3.2.” The LEA
> Requestor will detail the threat type and justification for a request
> with a Priority Level of High Priority*”, remains overly strict, uses
> language that creates a presumption of disclosure, and is not acceptable.
>
> Thanks,
>
> Sara
>
> *sara bockey*
>
> *sr. policy manager | **Go**Daddy^™ *
>
> *sbockey at godaddy.com <mailto:sbockey at godaddy.com> 480-366-3616*
>
> *skype: sbockey*
>
> //
>
> /This email message and any attachments hereto is intended for use
> only by the addressee(s) named herein and may contain confidential
> information. If you have received this email in error, please
> immediately notify the sender and permanently delete the original and
> any copy of this message and its attachments./
>
> *From: *Gdd-gnso-ppsai-impl <gdd-gnso-ppsai-impl-bounces at icann.org
> <mailto:gdd-gnso-ppsai-impl-bounces at icann.org>> on behalf of Amy
> Bivins <amy.bivins at icann.org <mailto:amy.bivins at icann.org>>
> *Reply-To: *"gdd-gnso-ppsai-impl at icann.org
> <mailto:gdd-gnso-ppsai-impl at icann.org>" <gdd-gnso-ppsai-impl at icann.org
> <mailto:gdd-gnso-ppsai-impl at icann.org>>
> *Date: *Monday, February 5, 2018 at 11:58 AM
> *To: *"gdd-gnso-ppsai-impl at icann.org
> <mailto:gdd-gnso-ppsai-impl at icann.org>" <gdd-gnso-ppsai-impl at icann.org
> <mailto:gdd-gnso-ppsai-impl at icann.org>>
> *Subject: *Re: [Gdd-gnso-ppsai-impl] Request for IRT Feedback: LEA
> Framework Specification, Receipt Process's Application to High
> Priority Requests
>
> Hi, All,
>
> *Thanks so much for your contribution to this discussion thus far, and
> I encourage the IRT to continue this discussion between now and our
> next meeting on the 13^th .*
>
> As a reminder of how we arrived at this point, the Final Report
> contained a few guidelines for any future LEA disclosure framework
> (see p. 16), /“In the event that a Disclosure Framework is eventually
> developed for LEA requests, the WG recommends that the Framework
> expressly include requirements under which at a minimum: (a) the
> Requester agrees to comply with all applicable data protection laws
> and to use any information disclosed to it solely for the purpose to
> determine whether further action on the issue is warranted, to contact
> the customer, or in a legal proceeding concerning the issue for which
> the request was made; and (b) exempts Disclosure where the customer
> has provided, or the P/P service provider has found, specific
> information, facts, and/or circumstances showing that Disclosure will
> endanger the safety of the customer.”/
>
> //
>
> * Jan 2016 Final Report: Guidelines re: any future LEA framework
> * June 2016 GAC Helsinki Communique: advising ICANN Board to ensure
> that GAC concerns are effectively addressed in the implementation
> phase of the Privacy/Proxy Service Provider Accreditation Program
> to the greatest extent possible. The GAC advised that its input
> and feedback should be sought out as necessary in developing a
> proposed implementation plan, including through participation of
> the GAC Public Safety Working Group (PSWG) on the Implementation
> Review Team (IRT).
> * December 2016: ICANN Board directs ICANN Org to continue to
> encourage dialogue between the IRT and the PSWG to address GAC
> concerns during implementation, to the extent that so doing is
> consistent with Policy Recommendations.
> * Jan 2017: IRT invites PSWG to share strawman proposal,
> http://mm.icann.org/pipermail/gdd_pp_irt_lea/2017-January/000003.html.
>
> * June 2017: PSWG shares strawman proposal with IRT
> * Jun-Sept 2017: IRT discussions re: LEA framework (among other topics)
> * Jan/Feb 2018: Continued IRT discussions re: lingering open items
> in LEA FW
>
> Following over six months of discussions on this draft framework, the
> only remaining item appears to be how to handle “high priority”
> requests in terms of timing. In the last request to the IRT on this
> topic, sent to the IRT on 23 Jan,
> http://mm.icann.org/pipermail/gdd-gnso-ppsai-impl/2018-January/000525.html,
> we requested any final feedback on this topic with a deadline of 28
> Jan. No responses were sent to the list.
>
> This proposed language was distributed today for discussion as a
> proposed solution to resolve potential ambiguity in the Final Draft
> prior to going to public comment. This proposal is an attempt to
> reflect all IRT member input received on the topic to date.
>
> Please share any comments on the list with the goal of reaching a
> resolution to this issue prior to our next meeting.
>
> Best,
>
> Amy
>
> *From:*Gdd-gnso-ppsai-impl
> [mailto:gdd-gnso-ppsai-impl-bounces at icann.org] *On Behalf Of *theo geurts
> *Sent:* Monday, February 5, 2018 12:32 PM
> *To:* gdd-gnso-ppsai-impl at icann.org
> <mailto:gdd-gnso-ppsai-impl at icann.org>; Sara Bockey
> <sbockey at godaddy.com <mailto:sbockey at godaddy.com>>
> *Subject:* Re: [Gdd-gnso-ppsai-impl] Request for IRT Feedback: LEA
> Framework Specification, Receipt Process's Application to High
> Priority Requests
>
> Agreed Sara,
>
> It seems, or at least, we create a suggestion that if process X is
> followed, disclosure will happen, that is not the case, and never has
> been the case, providers must follow due process, always.
>
> If we create a set of LEA procedures, they need to realistic and clear
> and never put a provider in a position where contractual agreements
> put pressure on a provider to comply with applicable law. But the
> first step in this process is to figure out if we are not out of scope
> as an IRT to create such procedures.
>
> Theo
>
> On 5-2-2018 18:05, Sara Bockey wrote:
>
> A few items.
>
> Again, I’m concerned that we are /_creating_/ policy, not
> implementing it. Granted, the framework outlined in the Final
> Report is not as robust as what is detailed for IPC, but then
> again LEA did not participate in the PDP process. The IRT is _not_
> the place to be creating policy for LEAs.
>
> That said, the problem with a strict 24-hour period is that it
> doesn’t acknowledge certain situations/matters may require
> additional time, falling outside a 24-hour period *_despite a
> Provider’s best efforts_*. Language such as “Where a disclosure
> request has been categorized as High Priority, this must be
> actioned within 24 hours” are overly strict and sets the Provider
> up for failure/being out of compliance due to circumstances beyond
> its control.
>
> Finally, I fear the LEA framework as currently written creates
> unrealistic expectations/SLAs. There seems to be a presumption of
> disclosure – if LEAs check all the right boxes, the information
> will be disclosed. However, this decision should reside with the
> provider, who does not have to bypass due process just to please LEAs.
>
> *sara bockey*
>
> *sr. policy manager | **Go**Daddy^™ *
>
> *sbockey at godaddy.com <mailto:sbockey at godaddy.com> 480-366-3616*
>
> *skype: sbockey*
>
> //
>
> /This email message and any attachments hereto is intended for use
> only by the addressee(s) named herein and may contain confidential
> information. If you have received this email in error, please
> immediately notify the sender and permanently delete the original
> and any copy of this message and its attachments./
>
> *From: *Gdd-gnso-ppsai-impl
> <gdd-gnso-ppsai-impl-bounces at icann.org>
> <mailto:gdd-gnso-ppsai-impl-bounces at icann.org> on behalf of Amy
> Bivins <amy.bivins at icann.org> <mailto:amy.bivins at icann.org>
> *Reply-To: *"gdd-gnso-ppsai-impl at icann.org"
> <mailto:gdd-gnso-ppsai-impl at icann.org>
> <gdd-gnso-ppsai-impl at icann.org> <mailto:gdd-gnso-ppsai-impl at icann.org>
> *Date: *Monday, February 5, 2018 at 7:51 AM
> *To: *"gdd-gnso-ppsai-impl at icann.org"
> <mailto:gdd-gnso-ppsai-impl at icann.org>
> <gdd-gnso-ppsai-impl at icann.org> <mailto:gdd-gnso-ppsai-impl at icann.org>
> *Subject: *[Gdd-gnso-ppsai-impl] Request for IRT Feedback: LEA
> Framework Specification, Receipt Process's Application to High
> Priority Requests
>
> Dear Colleagues,
>
> As mentioned on the list a couple of weeks ago, the current draft
> PPAA is still a bit ambiguous regarding how the review process
> outlined in Section 3.2.1 applies to high priority requests. We
> need ensure that the draft is clear about this requirement when we
> go out for public comment (and if there is opposition to the
> proposed requirement by any members of the IRT, this will be
> flagged in the call for comments).
>
> **
>
> *Upon reviewing the IRT’s input to date, I am proposing an edit
> that I believe reflects the IRT discussion on this point. Please
> review and provide your comments on this proposed language no
> later than this Friday, 9 February. *
>
> To summarize, the current draft contains a two-step process for
> Providers upon receipt of a request from LEA. (1) Within two
> business days, the Provider must review the request and confirm to
> the LEA requester that it has been received and contains the
> relevant information required to meet the minimum standard for
> acceptance (See 3.2.1 of Specification 4). (2) The Provider must
> then action the request in accordance with the priority level
> (within 24 hours for “high priority” requests (4.1.2); or within
> the timeline requested by LEA, if possible, for other requests
> (See 4.1.3).
>
> *The current language may be a bit ambiguous as to whether the two
> business day “review period” applies before the 24-hour period for
> responding to high priority requests (as explained in more detail
> in the attached message).*The view of registrar IRT members
> appears to be that requiring action within 24 hours of receipt of
> an LEA request, even if it is a high priority request, is
> unacceptable. PSWG members of the IRT disagree. Other IRT members
> appear to have mixed views on this (some referenced the RAA
> requirement that “Well-founded reports of Illegal Activity
> submitted to these [dedicated LEA] contacts must be reviewed
> within 24 hours by an individual who is empowered by Registrar to
> take necessary and appropriate actions in response to the report.”
> Registrar members of the IRT said that the RAA-required review is
> less intensive than the PPAA review due to the specific
> requirements in the PPAA draft).
>
> Based on the views expressed within the IRT, it appears that one
> potential solution to this ambiguity would be to update Section
> 4.1.2 to state that (proposed edit in red), *“**Where a disclosure
> request has been categorized as High Priority, this must be
> actioned within 24 hours of completion of the receipt process
> outlined in Section 3.2.” The LEA Requestor will detail the threat
> type and justification for a request with a Priority Level of High
> Priority.”*
>
> The practical impact of this proposed change would be that the
> provider must action a high priority request within 24 hours of
> determining that the request meets the minimum standard for
> acceptance. If the provider completes the receipt process sooner
> than 2 business days after receipt of the request, this would
> start the 24-hour clock for actioning the request. Thus, this
> could shorten the response window a bit, partially addressing the
> PSWG concerns of a “two business days plus 24 hours” requirement,
> while also addressing registrar concerns by not starting the clock
> until the provider has time to review the request, if the full
> time of the receipt process is required to conduct that review.
>
> *Please provide your feedback on this proposed change no later
> than this Friday, 9 Feb. And if you have further comments on
> this, please share those as well.*
>
> **
>
> Best,
>
> Amy
>
> *Amy E. Bivins*
>
> Registrar Services and Engagement Senior Manager
>
> Registrar Services and Industry Relations
>
> Internet Corporation for Assigned Names and Numbers (ICANN)
>
> Direct: +1 (202) 249-7551
>
> Fax: +1 (202) 789-0104
>
> Email: amy.bivins at icann.org <mailto:amy.bivins at icann.org>
>
> www.icann.org <http://www.icann.org>
>
>
>
>
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