[Gnso-epdp-legal] Action items from EPDP Phase 2 Legal Committee meeting at ICANN66

Wed Nov 13 15:36:38 UTC 2019

Some observations on ECJ's decision on Google right to be forgotten case in
order to kick off our discussion on the proposed question.  For an American
lawyer, the ECJ's analysis is difficult to parse, but here's my takeaway:

   1. Although the case arose prior to GDPR's effective date, the court
   clearly analyzes the situation under both the Directive and the Regulation.
   2. The discussion focuses substantively on consideration of the rights
   derived from Article 12 and 14 of the Directive (erasure and objection =
   right to be forgotten as interpreted by courts) and arising under Article
   17 of the Regulation (erasure/right to be forgotten) and describes its job
   (question presented) as being to "determine the territorial scope which
   must be conferred on a dereferencing ..."
   3. The decision does speak generally about the need to balance an
   individual's fundamental privacy rights against other fundamental rights,
   applying the principle of proportionality, so I don't think it is entirely
   fair to say that it has *no* application outside of the right to be
   forgotten context.  Here the court seems to be saying that the balance, in
   the context of erasure, may come out in different ways depending on where
   the information is available (within the Union/outside the Union).  And the
   fact that many countries don't recognize a right to be forgotten is part of
   that balance.  It's not clear from the decision whether or how this would
   apply outside the erasure context.
   4. The court concluded that Google was not required to de-reference the
   data outside of the EU so long as it took meaningful steps to prevent (or
   at least discourage) EU-based searchers to access the material through
   geo-fencing.
   5. There's no suggestion that I could find that google.fr or google.de
   could continue to provide links to the data to a searcher using a non-EU IP
   address.

Is this correct?  And, for the sake of discussion, let's assume that the
fact that some countries don't recognize a right not to have public
whois should be part of the balance - but under the facts here, only with
respect to access by users outside of the EU that is provided by Contracted
Parties establishments located outside the EU.  What would that mean in our
situation?  Would it change the balance to be applied by registries and
registrars established exclusively in the EU or with respect to the in-EU
processing activities of global registries/registrars?  If not, what are
the implications and, based on the conclusions reached by the epdp to date,
do we want to spend some of our legal budget on asking the question?

On Tue, Nov 5, 2019 at 5:34 PM Caitlin Tubergen <caitlin.tubergen at icann.org>
wrote:

> Dear EPDP Phase 2 Legal Committee,
>
>
>
> Please find below a list of action items from yesterday’s Phase 2 Legal
> Committee meeting.
>
>
>
> *ACTION ITEMS*
>
>
>
> *SSAD Questions under Discussion:*
>
>
>
>    1. *Q11*: Brian, Margie, Thomas, and Volker to work together on
>    reformulating Q11 based on the small group’s discussion around a staggered
>    approach to disclosure, i.e., first, disclosure of list of domain names,
>    rather than disclosure of all contact information associated with the
>    domain names.
>
>
>
>    1. *Right to be Forgotten*: Legal Committee to review the Google Right
>    to be Forgotten case
>    <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62017CJ0507&from=EN>
>    and come prepared to discuss whether this case is relevant to the EPDP
>    Team’s Phase 2 work; if yes, Legal Committee to formulate draft question to
>    Bird & Bird.
>
>
>
> *Legal Memo Summaries:*
>
>
>
>    1. Legal Committee to review and edit the clean drafts of the Phase 2
>    legal memo summaries in advance of the next Legal Committee meeting on *Tuesday,
>    19 November at 14:00 UTC*. Please find links to the memos below:
>
>
>
>    1. Questions 1/2 (controllership/liability):
>       https://docs.google.com/document/d/1wqEn6-PvvIOjcK5BxrVFi2HND4na2H-vE4jbKt00oCk/edit
>       2. Question 3 (automation):
>
> *https://docs.google.com/document/d/1SJu0Znem6fOybAKb19nB6cSSgaO6ZRfM3BpViX-wZA4/edit
> <https://docs.google.com/document/d/1SJu0Znem6fOybAKb19nB6cSSgaO6ZRfM3BpViX-wZA4/edit>*
>
>    1. Question 4 (disclosure to LEA outside of the controller’s
>       jurisdiction):
>
> *https://docs.google.com/document/d/1blfcicgJu_NBV9L3dtF9aRU28W5hjaXdVzCeVNwcoXA/edit
> <https://docs.google.com/document/d/1blfcicgJu_NBV9L3dtF9aRU28W5hjaXdVzCeVNwcoXA/edit>*
>
>
>
> *Priority 2 Legal Questions*
>
>
>
>    1. By *Friday, 15 November*, Legal Committee to reread the questions
>    submitted for Priority 2 items. In reading the questions, Legal Committee
>    to:
>       1. Determine if, based on the EPDP Team’s work to date, the
>       question is still relevant and should be considered by the Legal Committee.
>       If YES,
>       2. Update the applicable Priority 2 worksheet to include a
>       rationale as to why this question is relevant and should be posed to
>       outside counsel.
>
>
>
> Please find a link to the Priority 2 Worksheet links
> <https://community.icann.org/display/EOTSFGRD/b.+Worksheets>. Please note
> that within each worksheet, Support Staff has (i) indicated who is
> responsible for adding a rationale to each question and (ii) added cited
> text where applicable.
>
>
>
>    1. In advance of the next Legal Committee Meeting on *Tuesday, 19
>    November*, Legal Committee to review the Priority 2 questions for Accuracy
>    and WHOIS ARS
>    <https://docs.google.com/document/d/1pS9Pibanj-Hp6LztZpeERtxdoLsnp4y_-do0vU5VJuw/edit>
>    and City Field Redaction
>    <https://docs.google.com/document/d/1rdtRLaNm5DiWR_EPei4Oi64FaDauIXEQhnF2Lm_NxbI/edit>.
>
>
>
>
> Thank you.
>
>
>
> Best regards,
>
>
>
> Marika, Berry, and Caitlin
>
>
>
>
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