[Gnso-epdp-legal] Notes - Meeting 3 - Legal Committee Call - 9 January 2019

Caitlin Tubergen caitlin.tubergen at icann.org
Fri Jan 11 03:30:51 UTC 2019


Dear All,

 

Please find notes from the 9 January 2019 meeting of the EPDP Legal Committee.

 

Thank you.

 

Best regards,

 

Marika, Berry, and Caitlin

 

EPDP Legal Committee Meeting #3

9 January 2019

Notes

 

Continue developing EPDP Questions requiring legal advice

 

Question 3 - coordinated over email

 

Question 1 - coordination to occur shortly - update for next week.

 

Question 2 - Laureen may be affected by the USG shutdown. If any action items based on Kristina's draft - please send online.

 

Suggestion from last week: questions to be formed in three parts:

1. Background info so the legal resource would be better informed. In providing background, assume the resource understood sufficiently the DNS.

2. Additional guidance we already received from the EDPB, etc.

3. The question itself, clearly worded.

 

Question 3

 

Question 3: Thomas, Diane, Tatiana

As noted below, the EPDP Team disagreed about the application of Art. 6(1)b, namely, does the reference ‘to which the data subject is party’ limit the use of this lawful basis to only those entities that have a direct contractual relationship with the Registered Name Holder? Similarly, in relation to Art. 6(1)(b), questions arose regarding how to apply “necessary for the performance of a contract”; specifically, does this clause solely relate to the registration and activation of a domain, or, alternatively, could related activities such as fighting DNS abuse also be considered necessary for the performance of a contract? The EPDP Team plans to put these questions forward to the European Data Protection Board (EDPB) to obtain further clarity in order to help inform its deliberations. (p. 57 of the Initial Report)

 

Diane's Draft: 

 

t. 6(1)(b) GDPR (contractual necessity) states that the processing must be necessary for the performance of A CONTRACT (or to take steps at the request of the data subject before entering into a contract) TO WHICH THE DATA SUBJECT IS PARTY.

 

Does the reference ‘to which the data subject is party’ limit the use of this lawful basis to only those entities that have a direct contractual relationship with the Registered Name Holder? Or can ICANN, which is not a party to the contract, also process registrants’ data so that it is deemed as “necessary for the performance of the contract?” Specifically, , in relation to the registration and activation of a domain, or, alternatively, could related activities such as those outlined in Section 3.18-20 of the RAA also be considered necessary for the performance of a contract between the RNH and the Registrars and/or the Contracted Parties and ICANN? The EPDP Team in determining Consensus Policy needs to understand the appropriate legal basis and steps of needed to provide for lawful and compliant processing of personal data.

 

The question may be incomplete as some groups (namely RySG) believe 6(1)(b) does not apply. 

 

Proposed path forward: if this is finished, forward the question to the team for further review.

Augmentation of the background may be necessary to point out the area of contention that caused the question to be raised.

Necessary for all teams to do their homework to get meaning input.

Does the team need to replace Laureen?

The crux is that some language that is meant to provide color to the legal advisor rang alarm bells with certain constituencies. Perhaps a path forward: try to frame a legal question as general as possible and point the advisor to the Initial Report page where the background information and debate can be found.

It's difficult to frame the question without bias, so general formulations would be better.

If we can anticipate questions we would get back from legal counsel, we should try to ask them at the outset.

It may be helpful to regroup in advance of Toronto.

Support Team to distribute Doodle Poll for a call in advance of F2F.

 

Question 2

Concern - is more DNS background info needed?

Concern - is educational materials too broad of a term? what could that encompass?

Action: Kristina to work with Margie on noted concerns from last call.

 

 

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