[Gnso-epdp-legal] [Ext] Initial Report Sections for Bird & Bird to Review

[Caitlin Tubergen]

Dear Brian and Legal Committee Members:

 

Thank you for the suggestions. 

 

At this time, there does not appear to be a lot of support within the Legal Committee to send the Initial Report, or a portion thereof, to Bird & Bird for its review. If members of the Legal Committee feel differently, please provide additional feedback by Friday, 13 March. 

 

Thank you.

 

Best regards,

 

Marika, Berry, and Caitlin

 

 

From: "King, Brian" <brian.king at markmonitor.com>
Date: Thursday, March 5, 2020 at 1:24 PM
To: Caitlin Tubergen <caitlin.tubergen at icann.org>, "gnso-epdp-legal at icann.org" <gnso-epdp-legal at icann.org>
Subject: [Ext] Initial Report Sections for Bird & Bird to Review

 

Hi Caitlin, 

 

Thoughtful suggestions, as promised: 

 

Preliminary Recommendation #1. Accreditation

Not as a standalone section, since this appears to be primarily technical/operational as opposed to legal. This may be helpful background for Bird & Bird in reviewing Recommendation #16.

 

Preliminary Recommendation #3. Criteria and Content of Requests

Not as a primary focus, but would not oppose this being a bottom-tier question if we have funding. 

 

Preliminary Recommendation #6. Contracted Party Authorization

Yes, propose to ask Bird & Bird to confirm whether a Contracted Party likely carries more liability in this scenario vs. in Recommendation #7.

 

Preliminary Recommendation #7. Authorization for automated disclosure requests

Yes, propose to ask Bird & Bird to confirm whether a Contracted Party likely carries more liability in this scenario vs. in Recommendation #6, and also whether a Contracted Party carries more liability if it has outsourced its decision making to the Central Gateway vs. voluntarily taken on decision making itself. Bird & Bird should explore whether its previous controllership and liability guidance is changed in a scenario where the Contracted Party has no visibility into who the requestor is or why the data is being requested, and is merely required to provide the data upon instruction by ICANN as controller. 

 

Preliminary Recommendation #10. Acceptable Use Policy

Not as a standalone section. This may be helpful background for Bird & Bird in reviewing Recommendation #16.

 

Preliminary Recommendation #11. Disclosure Requirement

Not as a primary focus, but would not oppose this being a third-tier priority question if we have funding. 

 

Preliminary Recommendation #14. Retention and Destruction of Data

Not as a standalone section. This may be helpful background for Bird & Bird in reviewing Recommendation #16.

 

Preliminary Recommendation #16. Automation

Yes, propose to ask Bird & Bird to help us list the types of requests for which disclosure can be automated. We should also ask for a list of additional types of requests that can be automated if we add or improve safeguards and limitations, and/or if we enable and require the requestor to make an affirmation or allegation. Bird & Bird should be specific and constructive. 

 

Preliminary Recommendation #17. Logging

Only consider this section if analyzing logging is helpful to their analysis on automation. 

 

Preliminary Recommendation #18. Audits

Only consider this section if analyzing audits is helpful to their analysis on automation. 

 

Preliminary Recommendation #19. Mechanism for the evolution of SSAD

Yes, propose to ask Bird & Bird to confirm whether a Contracted Party likely carries more liability in this scenario if ICANN as controller may unilaterally evolve the SSAD to automate and take on decision making for different request types. Do Contracted Parties remain controllers in this scenario? How does their liability change (if at all)? 

 

Brian J. King  
Director of Internet Policy and Industry Affairs

 

T +1 443 761 3726
markmonitor.com [markmonitor.com]

 

MarkMonitor
Protecting companies and consumers in a digital world

 

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