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

Alan Greenberg alan.greenberg at mcgill.ca
Mon Nov 5 17:33:48 UTC 2018

Just to note that as Hadia has since pointed out, her first sentence was a simplification with she covered a few lines down with "The data rights of the registrants is determined by their location (not their citizenship) in addition to the location of the controller and processor."

Farzi's original statement "For example, as far as I know EU citizens anywhere in the world are protected by GDPR" may well have been accurate but by this point in the EPDP, hopefully everyone knows that this is not the case.


At 04/11/2018 01:44 PM, Alan Woods wrote:
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,


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

Sent from my iPhone

On 4 Nov 2018, at 15:02, Hadia Abdelsalam Mokhtar EL miniawi <Hadia at tra.gov.eg<mailto: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??



From: Gnso-epdp-team [ mailto: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<mailto:gnso-epdp-team-bounces at icann.org>; alex at the-online.net<mailto: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.


On Fri, Nov 2, 2018 at 10:13 PM Alan Greenberg <alan.greenberg at mcgill.ca<mailto: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 Registrant’s because if it is not accurateate, 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 tto 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 (‘accuracy’).

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: “In somome 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.†However, if the controller learns that information iis 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:
·         accurately record the information provided;
·         accurately record the source of the information;
·         take “reasonable steps†in the circumstances to ensure e the accuracy of the information; and
·         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.



Diane Plaut
General Counsel and Privacy Officer
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