[Gnso-epdp-legal] Additional Question From Today's Call
Leon Sanchez
leon.sanchez at board.icann.org
Fri Feb 15 19:33:33 UTC 2019
Hi Kurt,
Apologies for delayed reply. I too agree with the suggested way forward.
Kind regards,
León
Enviado desde mi iPad
El 15 feb 2019, a la(s) 12:51, Hadia El Miniawi via Gnso-epdp-legal <gnso-epdp-legal at icann.org> escribió:
> Hi Kurt,
>
> I agree with your proposed question and with your suggestion for the way forward
>
> Regards
> Hadia
>
>
>
> On Friday, February 15, 2019, 4:55:34 PM GMT+2, Emily Taylor <emily.taylor at oxil.co.uk> wrote:
>
>
> Hi Kurt
>
> Thanks for your suggestions. I agree with your proposed way forward.
>
> Best wishes
>
> Emily
>
> On Thu, Feb 14, 2019 at 8:23 PM Kapin, Laureen via Gnso-epdp-legal <gnso-epdp-legal at icann.org> wrote:
> And that Bird and Bird should continue their analysis regarding the “city” field.
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> Laureen Kapin
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> Counsel for International Consumer Protection
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> Office of International Affairs
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> Federal Trade Commission
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> (202) 326-3237
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> lkapin at ftc.gov
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>
>
> From: Kapin, Laureen
> Sent: Thursday, February 14, 2019 3:22 PM
> To: 'Kurt Pritz' <kurt at kjpritz.com>; gnso-epdp-legal at icann.org
> Subject: RE: [Gnso-epdp-legal] Additional Question From Today's Call
>
>
>
> Kurt,
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>
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> I agree that it would be useful to circulate this advice to the full team.
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> Laureen Kapin
>
> Counsel for International Consumer Protection
>
> Office of International Affairs
>
> Federal Trade Commission
>
> (202) 326-3237
>
> lkapin at ftc.gov
>
>
>
> From: Gnso-epdp-legal <gnso-epdp-legal-bounces at icann.org> On Behalf Of Kurt Pritz
> Sent: Thursday, February 14, 2019 3:13 PM
> To: gnso-epdp-legal at icann.org
> Subject: Re: [Gnso-epdp-legal] Additional Question From Today's Call
>
>
>
> Hi Everyone:
>
>
>
> I know you are all extremely busy and apologize for the lateness in coming back to these issues:
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> I
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> We have received two pieces of legal advice: on data accuracy and the possible redaction of ‘city name’ form Bird & Bird.
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> 1) Should we forward these on the the full Team?
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> 2) Should we ask Bird and Bird to carry on with the next part of their analysis of the city name issue?
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> I think the answer to both of these is ‘yes’; please let me know if you concur. Even though the analysis of the city name issue is likely to extend into Phase 2, I think a response received during Phase 2 would fit well with the existing recommendation.
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> II
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> I believe the question of a legal basis for thick whois requires a detailed legal analysis and also believe we should start the process. My experience in working with Bird and Bird so far is that they read the questions carefully and extract the intent as well as the meaning of the written word so that the precise wording is not critical. I also believe that, because of the complexity, there will be some iteration between the legal team and B&B before a final memo is delivered.
>
>
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> Thinking about the materials that B&B will require, I think will want them to read the Thick Whois Final Report carefully and probably will also want to read a portion of the record to understand the rationale behind the policy recommendations. We can refer to ICANN’s Stability and Security Mission as Emily suggests but also should refer B&B to theThick Whois Policy team’s record to describe the possible legal basis for Thick Whois. I.e., I think it is better for B&B to look for justifications in the record rather than ask B&B for other possible justifications.
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> So,
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> Assuming that:
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> ICANN adopts all of the purposes identified in the current draft version of Recommendation 1, [ICANN TO SEND LIST OF PURPOSES] which addresses processing for the benefit of registries, registrars, ICANN, and third parties, as part of a future Consensus Policy that updates the WHOIS policy to address GDPR concerns
> These purposes become incorporated into the relevant registrar and registry agreements with ICANN
> There is a prior consensus policy calling for THICK WHOIS that was adopted by the ICANN Board following the Bylaws, that requires the transfer of the WHOIS contact data from the registrars to the registries for reasons that are identified in the Final Report, including ICANN mission related, “substantial benefits from mandating thick instead of thin Whois, including enhanced accessibility and enhanced stability."
> Question: Is there a legal basis under GDPR for a Controller or Processor to justify a transfer of data elements from registrars to registries to enable the processing called for in these purposes even though the processing and transfer of data may be to enable processing for the benefit of 3rd parties? I.e., should the resulting policy from the EPDP would continue the requirement for Thick WHOIS?
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> Let me know of your edits to this question.
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> Thanks for thinking about this at this time,
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>
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> Kurt
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> On Feb 8, 2019, at 5:54 AM, Emily Taylor <emily.taylor at oxil.co.uk> wrote:
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> Hi Margie
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> Thanks for posting your proposed additional question for Bird & Bird. I was not able to be on the last call, so I may well have missed some context.
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> I am not able to support the proposed additional question for Counsel at this stage.
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> So much has changed (including the legal environment) since the consensus policy on Thick WHOIS, and this EPDP group is not tasked with reviewing that policy, I worry that the reference may just be confusing at best or unhelpful at worst. I"m not sure that we even need to bring in the concept of Thick WHOIS at this point. The key issue, as I understand it, is whether or not there is a legally justifiable transfer of gTLD registration data from registrar to registry.
>
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> A proposed edit would be -
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>
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> Assuming that:
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> · ICANN adopts all of the purposes identified in the current draft version of Recommendation 1, [ICANN TO SEND LIST OF PURPOSES] which addresses processing for the benefit of registries, registrars, ICANN, and third parties, as part of a future Consensus Policy that updates the WHOIS policy to address GDPR concerns
>
> · These purposes become incorporated into the relevant registrar and registry agreements with ICANN
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> · Registrars continue to collect registration data, and there is a contractual requirement to transfer some or all of the data set from registrar to registry.
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> Can a controller or processor justify a transfer of data (for example from registrar to registry) solely on the basis that a 3rd party may require disclosure at some point in the future, for the the purposes of upholding the 'Security Stability and Resiliency' of the DNS, as defined in ICANN's bylaws? If not, what other justifications could be made to justify such a data transfer?
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> However, I'm not convinced that external legal counsel will be the best people to ask? I think that our EPDP plenary group is well placed to work through these issues as we continue our work in Phase II.
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> Best wishes
>
>
> Emily
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>
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> On Wed, Feb 6, 2019 at 7:33 PM Margie Milam <margiemilam at fb.com> wrote:
>
> Hi-
>
>
>
> Following up on today’s call, here is a draft legal question to pose to Ruth:
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>
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> Assuming that:
>
>
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> · ICANN adopts all of the purposes identified in the current draft version of Recommendation 1, [ICANN TO SEND LIST OF PURPOSES] which addresses processing for the benefit of registries, registrars, ICANN, and third parties, as part of a future Consensus Policy that updates the WHOIS policy to address GDPR concerns
>
> · These purposes become incorporated into the relevant registrar and registry agreements with ICANN
>
> · There is a prior consensus policy calling for THICK WHOIS that was adopted by the ICANN Board following the Bylaws, that requires the transfer of the WHOIS contact data from the registrars to the registries for reasons that are identified in the Final Report, including “substantial benefits from mandating thick instead of thin Whois, including enhanced accessibility and enhanced stability.”
>
> · The resulting policy from the EPDP would continue the requirement for Thick WHOIS
>
>
>
> Question: is there a legal basis under GDPR to support the requirement of a transfer of data elements from registrars to registries to enable the processing called for in these purposes even though the processing and transfer of data may be to enable processing for the benefit of 3rd parties (e.g. Purposes 2, 3, 5, 6) rather than for the registry’s purposes (Purpose 1)?
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> Looking forward to your comments.
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> All the best,
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> Margie
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> Emily Taylor
>
> CEO, Oxford Information Labs
> MA (Cantab), Solicitor (non-practising), MBA,
>
> Associate Fellow, Chatham House; Editor, Journal of Cyber Policy
>
> Lincoln House, Pony Road, Oxford OX4 2RD | T: 01865 582885
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> --
> Emily Taylor
> CEO, Oxford Information Labs
> MA (Cantab), Solicitor (non-practising), MBA,
>
> Associate Fellow, Chatham House; Editor, Journal of Cyber Policy
>
> Lincoln House, Pony Road, Oxford OX4 2RD | T: 01865 582885
> E: emily.taylor at oxil.co.uk | D: 01865 582811 | M: +44 7540 049322
>
>
>
>
> Registered office: Lincoln House, 4 Pony Road, Oxford OX4 2RD. Registered in England and Wales No. 4520925. VAT No. 799526263
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