[Gnso-epdp-legal] ICANN EPDP Questions [B&B-M.FID11020712]

Wed Feb 13 23:58:56 UTC 2019

Hi Kurt,

The full advice is now attached. If you have any questions, please let us know.

Best regards,
Gabe

From: Ruth Boardman
Sent: 13 February 2019 21:23
To: Kurt Pritz; Gabe Maldoff
Cc: gnso-epdp-legal at icann.org; Daniel Halloran
Subject: RE: ICANN EPDP Questions [B&B-M.FID11020712]

Hello Kurt,

We have the advice drafted.

The legal analysis is clear – this is personal data; in principle publication could be justified on the basis of rights-holders legitimate interests, unless the interests of individuals override this.

How this is applied to the facts – establishing whether there is sufficient interest for rights holders and balancing this with the interests of registered name holders  - is not clear cut. I would very much like to share the advice  with Dan and Erika and have the benefit of their comments. This will improve the memo and help us avoid inadvertently misstating points.

Is there time for us to do this please?  Dan, you may want to comment from a timing perspective.

Best regards,

Ruth

From: Kurt Pritz [mailto:kurt at kjpritz.com]
Sent: 12 February 2019 19:48
To: Gabe Maldoff
Cc: Ruth Boardman; gnso-epdp-legal at icann.org; Daniel Halloran
Subject: Re: ICANN EPDP Questions [B&B-M.FID11020712]

Perfect.

Kurt
Sent from my iPhone

On Feb 12, 2019, at 11:39 AM, Gabe Maldoff <Gabe.Maldoff at twobirds.com<mailto:Gabe.Maldoff at twobirds.com>> wrote:
Hi Kurt,

Thanks for letting us know your timing constraints. We're aiming to have the note to you by tomorrow with enough time for you to review ahead of the GNSO Council meeting.

Best regards,
Gabe

From: Kurt Pritz [mailto:kurt at kjpritz.com]
Sent: 12 February 2019 19:29
To: Gabe Maldoff
Cc: Ruth Boardman; gnso-epdp-legal at icann.org<mailto:gnso-epdp-legal at icann.org>; Daniel Halloran
Subject: Re: ICANN EPDP Questions [B&B-M.FID11020712]

Hi Gabe:

Thanks for the clear response to the question regarding "accuracy.” We will be back with follow-up questions if need be.

You might know that we submitted a draft version of the EPDP report to the GNSO and plan to provide the final version on 20 Feb. Tomorrow (late in the day), we are meeting with the GNSO Council to provide an overview of the report and are likely to be asked about the status of legal advice and, in particular, the question regarding “city names.”

Please let us know your projected delivery and whether you have any clarifying questions so that we can adequately answer the questions of our GNSO “masters.”

Thanks and best regards,

Kurt

On Feb 8, 2019, at 1:28 PM, Gabe Maldoff <Gabe.Maldoff at twobirds.com<mailto:Gabe.Maldoff at twobirds.com>> wrote:

Hi Kurt,

Please see our note of advice on Accuracy/Question 2 attached.

If you have any questions, do not hesitate to reach out.

Hope you have a nice weekend!

Best regards,
Ruth & Gabe

From: Kurt Pritz [mailto:kurt at kjpritz.com]
Sent: 07 February 2019 21:00
To: Gabe Maldoff
Cc: Ruth Boardman; gnso-epdp-legal at icann.org<mailto:gnso-epdp-legal at icann.org>; Daniel Halloran
Subject: Re: ICANN EPDP Questions [B&B-M.FID11020712]

Thank you Gabe.

Let us know if we can help you with the RAA.

Kurt

On Feb 7, 2019, at 12:28 PM, Gabe Maldoff <Gabe.Maldoff at twobirds.com<mailto:Gabe.Maldoff at twobirds.com>> wrote:

Hi Kurt,

We're working on Question 2, but it has required us to get deeper into the Registrar Accreditation Agreement than expected. We'll be able to finalise our note on this by tomorrow. Question 1 will be with you in the first part of next week.

Thanks,
Gabe

From: Gabe Maldoff
Sent: 06 February 2019 21:51
To: Ruth Boardman; Kurt Pritz
Cc: gnso-epdp-legal at icann.org<mailto:gnso-epdp-legal at icann.org>; Daniel Halloran
Subject: RE: ICANN EPDP Questions [B&B-M.FID11020712]

Hi Kurt,

Glad to hear the previous answers were clear!

Just to follow up on timing – we will have a reply on Question 2 tomorrow. On question 1, we need to look into this further, but it may be helpful to schedule a call. If we find tomorrow that we can proceed without a call, then we'll aim to have it to you by the end of the week.

We will come back to you tomorrow on whether we'll need a call on question 1. On question 3, we are liaising with Dan and Erika and will come back to you with our timing ASAP.

Best regards,
Gabe

From: Ruth Boardman
Sent: 06 February 2019 08:05
To: Kurt Pritz; Gabe Maldoff
Cc: gnso-epdp-legal at icann.org<mailto:gnso-epdp-legal at icann.org>; Daniel Halloran
Subject: RE: ICANN EPDP Questions

Hello Kurt,

Nice to hear from you. Just a quick line to acknowledge this.

We'll be in touch on timing on these later today.

Best,

Ruth

From: Kurt Pritz [mailto:kurt at kjpritz.com]
Sent: 06 February 2019 06:04
To: Ruth Boardman; Gabe Maldoff
Cc: gnso-epdp-legal at icann.org<mailto:gnso-epdp-legal at icann.org>; Daniel Halloran
Subject: ICANN EPDP Questions

Hello Ruth:

I hope you and Gabe are well. Thank you both for the answers to the previous question set, I found them clear and they have been distributed to the full Team and are being used in the formulation of our Final Report.

Below find three additional questions from the ICANN EPDP Team. If you don’t mind, please review them and come back to us with any questions or uncertainty. If you would, please provide us with an estimated timetable for your responses as we are managing the timing of our final report - day by day.

We stand by to help in any way, so please let us know if a conference call with the legal team or additional written explanation would be helpful.

Registration Data Redaction from Public Whois Database - City Name of the Registered Name Holder

1a.          Is the data provided by the Registered Name Holder for the “City” field in the RNH’s address personal data?  To what extent is there a risk under GDPR that the publication and/or disclosure of the RNH-identified “City” could result in inadvertent disclosure of personal data (which may affect the the policy of whether it should be redacted from the data that is made publicly available in Whois), or contribute to making the Registered Name Holder more identifiable? Please note that the EPDP is considering a recommendation to allow the publication of the City, State/Province and Country, while redacting the contact’s name, street address, email address, postal code, telephone number.  What are the bases in the GDPR, its official advisories and interpretations, and in practices similar to our own for making such a determination?

1b.          If the city field is personal data and therefore must be redacted, is there a lawful basis under Art. 6(1)f for publishing a subset of the data submitted by the registered name holder that includes the city name, where the legitimate interest is that those pursuing legal claims can determine jurisdictional issues prior to asserting the claim where that interest overcomes the rights of all registrants in not having their personal data published. (This proposed legitimate interest was gleaned from the transcript in Toronto.)

GDPR Data Accuracy Requirement

2.            Some EPDP Team members cite Art. 5.1(d) of GDPR as a requirement for the EPDP Team  to examine how accuracy is currently defined in ICANN’s 2013 Registrar Accreditation Agreement (the contract with registrars) and possibly require changes. Some EPDP Team members cite the accuracy requirement in Art. 5.1(d) GDPR as support for additional accuracy related policies, such as a requirement for registrars to validate the correctness of the data as provided by the data subject or a requirement to validate when the accuracy is being challenged. Others maintain that the Art. 5.1(d) GDPR requirement is to accurately record, maintain and process the data provided by the data subject and to update that information as informed by the data subject. Is the accuracy requirement limited to correction at the request of the data subject or is it a broader requirement? Please advise on how the accuracy requirements of GDPR impact the contracted parties and ICANN.

GDPR Reach

3.            In light of the EDPB Guidance on territorial scope of GDPR, how do ICANN’s stable establishments within the EU impact its responsibilities as a data controller. The EDPB Guidance appears to suggest that ICANN, as a controller with stable establishments within the EU, might be required to comply with GDPR? Iss this the case even if the majority of processing activities (including registrar/reseller collection of data from RNH) take place outside of the EU? .

Specifically:

  *   Do any of ICANN’s operations within the EU qualify as Establishments, as defined by Recital 22 of the GDPR?
  *    If ICANN is found to have Establishments within the EU, do these Establishments require ICANN (as a controller of gTLD Registration Directory Services related processing activities) to be subject to article 3.1 of the GDPR?
  *   Do the answers to the above questions impact ICANN’s, and/or any associated controllers’ or processors’, ability to distinguish between Registered Name Holders (RNH)/data subjects based on the geographic location of the RNHs in determining the geographic scope of GDPR?
To provide some background for this question, the answer to this question could affect the meaning of the following sections of the Temporary Specification:

Section 2.1          Registry Operator (except where Registry Operator operates a "thin" registry) and Registrar MUST apply the requirements in Sections 2 and 4 of this Appendix to Personal Data included in Registration Data where:

  *   the Registrar or Registry Operator is established in the European Economic Area (EEA) as provided in Article 3(1) GDPR and Process Personal Data included in Registration Data;
  *   the Registrar or Registry Operator is established outside the EEA and offers registration services to Registered Name Holders located in the EEA as contemplated by Article 3(2) GDPR that involves the Processing of Personal Data from registrants located in the EEA; or
  *   the Registrar or Registry Operator is located outside the EEA and Processes Personal Data included in Registration Data and where the Registry Operator or Registrar engages a Processor located within the EEA to Process such Personal Data.
Again, let us know if this is clear of if we can provide additional information.

Best regards,

Kurt

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<ICANN - Memo on Accuracy.DOCX>

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