[Gnso-epdp-team] Further Input from the IPC/BC on Small Team #1 and #2 issues

Sun Nov 4 18:44:32 UTC 2018

 Just wish to jump in on Hadia’s point alone (I have many thoughts on the
submissions but let’s see how the leadership team present the divergence,
and we can respond accordingly) But that being said, I am moved to this
email, to clarify a point of law, as Hadia, you are somewhat mistaken and
clarification is needed to avoid further confusion. To your point Hadia,
you are only looking at half the picture. If mere residency of the data
subject were the sole determinative factor, then yes I could accept the
validity of that argument; however, the GDPR applies to all European data
not just the data of European resident persons. E.g. If I am an EU citizen,
residing in Mongolia, but I use a European registrar, then the GDPR will
apply to my registration data; If I am a US citizen residing in Europe and
chose an American registrar , the GDPR applies; If I am a US citizen,
residing in Mongolia, and I use a South African registrar, but via a EU
reseller, then the GDPR applies... and so on...

We must be clear that this task of properly identifying the GDPR’s
applicability is not as simple or straightforward a task as it is being
lauded by some.

Kind regards,

Alan

On Sun 4 Nov 2018 at 17:45, farzaneh badii <farzaneh.badii at gmail.com> wrote:

> The question was whether accurate Geo location can help CPs identify
> applicable laws.
>
> Yes GDPR applies to data subjects who are "in" the EU. And a lot of
> sources on Google say that EU citizens are not protected by GDPR when
> outside of the EU and it applies to those who are "in" the EU  when data
> being processed.  So non resident EU citizens (A French national living
> in China) is not a GDPR data subject. There are still arguments over that
> as well. The only thing that might be clear is that those physically in
> the EU at the time of registration (regardless of their nationality)  are
> data subject just to make sure gdpr coverage goes beyond citizenship.
> But it is not clear what would happen to EU citizens on vacation or long
> stays in other countries.
>
>  Does being "in" the EU refer to the "location" of data subject at the
> time of registration or does it for EU citizens refer to the main place of
> residence?  A French citizen  who registers a domain name on vacation in
> the Caribbean is not physically present in the EU at the time of
> registration. Is that person not subject to GDPR because they were not in
> the EU ? Or if they register a domain in Port of Spain indicating their
> location as Paris then what would happen ?Is there a EDPB avice on this?
>
> All in all, yes GDPR applies to those who are "in" the EU regardless of
> their nationality. But in the case of domain name registration,
> geographical location does not clarify the applicable law in my opinion.
> Many other factors have to be taken into account. What is being in the EU?
> does that mean where they have their main residency? where they pay taxes?
> where their cruise is taking them? If we don't have clarity on this we
> cannot simply say if they make their geographical location clear we have
> established the applicable law correctly.
>
> Hadia I am glad you are asking which organizations would want to hide
> their physical address from the public. I hope this can provide some
> explanation as to why I get irritated when we are lumping all organizations
> together and ask for their sensitive data to be exposed to the public:
>
> Organizations that are critical of their governments and even if
> established abroad can be under threat
> Organizations that work for minority rights and women rights
> Organizations that are trying to hold various actors accountable
> Organizations that analyze and criticize religious extremists
> Human rights law firms/HR lawyers in certain parts of this world are in
> prison
> ... I can continue
>
> some say we are not here to protect and advance human rights. We are not
> here to violate HR and put people in danger either. We are not here to
> protect all consumers globally from whatever fraud regardless of whether it
> relates to DNS. We are not here to facilitate all kinds of law enforcement
> action that do not relate to security stability resiliency of DNS, we are
> not here to protect trademark and IP at any cost and at a global scale and
> beyond ICANN mission.
>
> Does distinguishing between legal and natural person help with advancing
> ICANN purpose and mission or third party interest? Please tell me how.
>
> I wish someone could answer my question. For the past three months, this
> group was dominated by access to WHOIS sensitive personal data discussion.
> We compromised. Access is now an ICANN purpose. Is it not enough? Is it not
> enough to pursue your purpose? Why is there a need for distinguishing
> between legal vs natural persons? If you have legitimate interest you can
> access anyway. Please let me know why it's not enough to give access to
> legitimate interest parties and redact orgs sensitive data too.
>
>
>
>
>
>
> On Sun, Nov 4, 2018 at 10:08 AM Arasteh <kavouss.arasteh at gmail.com> wrote:
>
>> Dear All
>> There are avalanche of contradicting messages
>> Everyone pushes for its own views
>> Pls ce the validity of all statement
>> Haida
>> Pls clarify what you said about GDPR against a clause of articles to
>> validate  what you stated .
>> Others are talking of accuracy
>> They are requested to explore what accuracy they are looking by giving
>> examples
>> Fritz is kindly requested to reconcile all these contradictory statements
>> Regards
>> Kavouss
>>
>>
>> Sent from my iPhone
>>
>> On 4 Nov 2018, at 15:02, Hadia Abdelsalam Mokhtar EL miniawi <
>> Hadia at tra.gov.eg> wrote:
>>
>> Hi Farzi,
>>
>>
>>
>> Just a quick clarification GDPR does not apply to EU citizens not
>> residing in the EU. The GDPR is not concerned with the citizenship it is
>> concerned with where the person is located. If you leave an EU country and
>> travel to a non EU country you are no longer protected by the GDPR. The
>> data rights of the EU citizens located outside of the EU is protected by
>> the laws of the territory that they are at. The data rights of the
>> registrants is determined by their location (not their citizenship) in
>> addition to the location of the controller and processor. And with regard
>> to protecting registrants we should also not forget the necessity of
>> protecting the registrants against domains hijacking and thefts which could
>> be devastating to the domain name holder not only financially but in terms
>> of accessibility to the site in case it is a not for profit web page or
>> domain and the rights of the registrants to be able to pursue their rights
>> in this regard.
>>
>> Finally and on another note which legal entities or businesses would like
>> to be kept hidden??
>>
>>
>>
>> Best
>>
>> Hadia
>>
>>
>>
>> *From:* Gnso-epdp-team [mailto:gnso-epdp-team-bounces at icann.org
>> <gnso-epdp-team-bounces at icann.org>] *On Behalf Of *farzaneh badii
>> *Sent:* Sunday, November 04, 2018 9:38 AM
>> *To:* Alan Greenberg
>> *Cc:* gnso-epdp-team-bounces at icann.org; alex at the-online.net; GNSO EPDP
>> *Subject:* Re: [Gnso-epdp-team] Further Input from the IPC/BC on Small
>> Team #1 and #2 issues
>>
>>
>>
>> Dear Diane,
>>
>>
>>
>> How can registrars determine the applicable law even if the geographical
>> information is accurate? I don't think registrars can actually determine
>> which law outside of their own jurisdiction applies to their registrants
>> even if they know the geographical location. For example, as far as I know
>> EU citizens anywhere in the world are protected by GDPR. So their
>> geographical location does not determine what law applies. Registrars have
>> to abide by their local laws, the court of law determines the applicable
>> law and some registries have the choice of law clauses in their agreements
>> with registrars which cannot be in conflict with the local laws of the
>> registrars. All in all determining the "jurisdiction" of data subject is
>> not dependent only on the geographical location of the registrant in this
>> case.
>>
>>
>>
>> Also I think every domain name registrant regardless of where they are
>> located deserve minimum data protection. They are consumers by the way!
>>
>>
>>
>> I am getting increasingly puzzled by IPC/BC interpretation of "accuracy"
>> of personal information of data subjects under GDPR. In my opinion the
>> concept of accuracy in GDPR is actually supposed to protect data subjects
>> and not to be used against them. Accurate information is not about keeping
>> the data accurate so that it can be displayed and accessed and mined by
>> many around the world! The accuracy of data is a right given to data
>> subjects so that inaccurate data cannot be used against them in court and
>> other forums, or be denied a service or end in violating their rights. I
>> believe they have the right for their information to be accurate and not
>> the responsibility (under GDPR) to maintain it accurately. The registrars
>> under GDPR have to maintain the data of domain name registrants "uptodate"
>> to reduce privacy risks. They don't have to keep the database accurate so
>> that they can distinguish between legal and natural persons.
>>
>> I believe by ICO you mean Information Commissioners Office. Specifically
>> this page:
>> https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/principles/accuracy/
>>
>>
>>
>>
>> The natural v legal distinction is not only burdensome for the CPs or
>> opens them to liability. It is dangerous for noncommercial/not for porfit/
>> advocacy organizations that have registered domain names and are vulnerable
>> to attacks of all sorts.
>>
>>
>>
>> I assume IPC/BC wants this distinction so that the org personal sensitive
>> data won't be redacted.  I would like to know why. I would like to know why
>> while some groups are fiercely working to have access to personal and
>> sensitive data of domain name registrants for their legitimate interest,
>> also work towards exposing domain name registrants sensitive data to the
>> world.
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> Farzaneh
>>
>>
>>
>>
>>
>> On Fri, Nov 2, 2018 at 10:13 PM Alan Greenberg <alan.greenberg at mcgill.ca>
>> wrote:
>>
>> This all sounds right to me. Alan
>>
>> At 02/11/2018 09:28 PM, Plaut, Diane wrote:
>>
>>
>> Dear EPDP Team-
>>
>> In our efforts to overcome a significant hurdle through our EPDP work –
>> that CPs have expressed they cannot rely on the accuracy of Registrant
>> input and, therefore, are hesitant to distinguish between legal and natural
>> persons or count on country information input by Registrantâ€™s because if
>> it is not accurate, they are concerned they will be liable for identifying
>> the person incorrectly or determining the applicable law incorrectly.  We
>> have discussed in the EPDP the prospect of trying to get input from DPAs to
>> confirm that it is reasonable to count on Registrant input. Thomas Rickert
>> has most recently proposed in Barcelona, setting up a meeting with the EDPB
>> and I have expressed my support and desire to partake in this and the legal
>> effort. In the meanwhile, I think it is beneficial for us to try to do our
>> own research and show DPA insight on this topic. To this end, I provide
>> below, guidance from the ICO on this topic. The IPC/BC wishes to add this
>> to the Small Team #1and #2 comments in support of our positions on the
>> issues of supporting the distinction of legal and natural persons and
>> applying relevant country laws.
>>
>> *The Accuracy of information provided by data subjects *Article
>> 5(1)(d)/(2) GDPR provides that controllers have an obligation to
>> demonstrate compliance with the requirement that:
>>
>> *Personal data shall be…accurate and, where necessary, keept up to date;
>> every reasonable step must be taken to ensure that personal data that are
>> inaccurate, having regard to the purposes for which they are processed, are
>> erased or rectified without delay (â€˜accuracyâ€™). *According to the
>> ICO, this means that controllers must take all reasonable steps to ensure
>> that the personal data they hold is not incorrect or misleading as to any
>> matter of fact. However, the GDPR does not explicitly distinguish between
>> personal data provided by the data subject, provided by a third party or
>> created by the controller – the same obligation applies in each such caase.
>> *As to whether it is possible to rely on the data subject for the
>> accuracy of the information, the ICO has confirmed in its guidance that
>> this is possible. In particular, the ICO states* that: â€œIn some cases
>> it is reasonable to rely on the individual to tell you when their personal
>> data has changed, such as when they change address or other contact
>> details. It may be sensible to periodically ask individuals to update their
>> own details, *but you do not need to take extreme measures to ensure
>> your records are up to date, unless there is a corresponding privacy risk
>> which justifies this*.â€ However, if the controller learns that
>> information is no longer accurate/up to date (either from the data subject
>> or from other information which comes to light), the controller should
>> update its records accordingly.
>>
>>
>>
>>
>> *The ICO also recognizes that it may be impractical to check the accuracy
>> of personal data someone else provides. In such cases, the ICO suggests
>> that controllers must: Â·         accurately record the information
>> provided; Â·         accurately record the source of the information;
>> Â·         take â€œreasonable stepsâ€ in the circumstances to ensure the
>> accuracy of the information; and Â·         carefully consider any
>> challenges to the accuracy of the information.*
>>
>>
>>
>> *Given that the data subject itself inputs and supplies the data
>> registration information (elements) in issue, there is a strong argument
>> that under the above guidance by the ICO, it is reasonable to reply on the
>> accuracy of this information for purposes of distinguishing between legal
>> and natural persons and for purposes of correct geographical information in
>> relation to applicable law purposes.   Moreover, in addition to and to
>> support the above, the IPC and BC further strongly support the following
>> legal recommendation be added to both Small Team #1 and Small Team #2 input
>> that contractual provisions be added to agreements so that overall accuracy
>> standards are achieved, stating: The above-identified Registrant represents
>> and warrants that the data provided herein is true, complete and accurate.
>> It could even go one step further and expressly say that Registrar is
>> entitled to rely on this data in making legal determinations including,
>> without limitation, those related to GDPR and relevant data protection
>> laws. Nothing in the above, limits the application of the ICO guidance from
>> supporting greater accuracy required by all parties. *
>> Sincerely,
>>
>> Diane
>>
>>
>> *Diane Plaut *General Counsel and Privacy Officer
>> *Error! Filename not specified.*
>> Direct +1 646-899-2806 â€¨ diane.plaut at corsearch.com
>> 220 West 42 <https://maps.google.com/?q=220+West+42&entry=gmail&source=g>
>> nd Street, 11th Floor, New York, NY 10036, United Statesâ€¨
>> www.corsearch.com
>> Join Corsearch on   Twitter <https://twitter.com/corsearch>  Linkedin
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>> <http://trademarksandbrands.corsearch.com/>
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>> Corsearch.USCustomerService at corsearch.com
>>
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