[Gnso-epdp-legal] Proposed Agenda - Legal Committee Meeting #16

[King, Brian]

Hi Legal Committee,

One additional point for us to consider:

It’s become clear to many of us on the legal committee that the helpful Bird & Bird advice on automation has uncovered what appears to be a novel legal question: where is the line between a) automated processing that sua sponte “produces legal effects concerning him or her” or “similarly significantly affects him or her” vs. b) automated disclosure by CPs and/or ICANN to a third party which might later lead to legal or similarly significant effects after the third party’s own further processing and use of the data.

We as a legal committee need to consider whether it makes sense for us to ask B&B to opine on this concept. Frankly, this may be too new an area of law for them to provide much value, at least from my perspective as a US attorney who finds value in the common law legal system of controlling precedent. What do you think?

I submit that if we expect B&B’s answer to be “we don’t know,” then we shouldn’t waste or time or pay for that answer.

On the other hand, if we think that it’s either clear or confirmable that automated disclosure of RDS data protected by a set of safeguards is distinguishable from the type of government-run, automated discrimination that GDPR is intended to prevent, then I would be comfortable either asking the question or presuming the answer as an EPDP team.

Questions and comments welcome.

Unfortunately, tomorrow I’ll be at a dentist appointment and will likely be late to the legal team call if I’m able to make it at all. I look forward to discussing with you all soon.

Brian J. King
Director of Internet Policy and Industry Affairs
MarkMonitor / Part of Clarivate Analytics
Phone: +1 (443) 761-3726
brian.king at markmonitor.com

On Mar 2, 2020, at 7:52 PM, Caitlin Tubergen <caitlin.tubergen at icann.org> wrote:


Dear Legal Committee:

Please find below the proposed agenda for tomorrow’s Legal Committee meeting.

EPDP Phase 2 Legal Committee- Meeting #16
Proposed Agenda
Tuesday, 3 March 2020 at 15.00 UTC

1.       Roll Call & SOI Updates (5 minutes)

2.       Feasibility of unique contacts [docs.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_document_d_1meyuNRsq4sMOI6pefJk4jZevaKUsTkVf8-5FXyW1tRaiA_edit&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=8K75qGdDlOta4kh6k2F0jrT195M3tF3J_Fxcz6EvuG2kYKDeA67ZTEnthHXAPVXH&m=6hzZjWOQWBa9CxGpZ5MQ7TmVG-Rr0Hzr_l422El-flw&s=1QwH9VJ1kvfWhftZb7WfLKDG-EqW1cKt_Xe9fki02Oo&e=>
a.      Legal Committee to propose next steps for Thursday’s EPDP Meeting (draft proposal attached)
b.      Confirm next steps
3.   City field redaction [docs.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_document_d_1rdtRLaNm5DiWR-5FEPei4Oi64FaDauIXEQhnF2Lm-5FNxbI_edit&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=8K75qGdDlOta4kh6k2F0jrT195M3tF3J_Fxcz6EvuG2kYKDeA67ZTEnthHXAPVXH&m=6hzZjWOQWBa9CxGpZ5MQ7TmVG-Rr0Hzr_l422El-flw&s=j0BshY1-hHBzwXkHkIGGZtMSDdDg41LAUskiN5OVrRE&e=>
a.      Review Matthew Crossman’s proposal (attached)
b.      Confirm next steps

4.   Review outstanding “Batch 2” questions (attached)
      a.  WHOIS accuracy/Legal vs. Natural
      b.  Territorial Scope

5.   Legal review of Initial Report

  1.  Question to Legal Committee: is there any interest in sending the Initial Report’s executive summary or a subset of recommendations to Bird & Bird to flag overarching legal concerns?
  2.  Confirm next steps
6.       Wrap and confirm next Legal Committee Meeting
a.      TBD
b.      Confirm action items

Thank you.

Best regards,

Marika, Berry, and Caitlin


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