[Gnso-epdp-team] Contracted Parties and Small Teams #1 and #2

Tue Nov 6 01:44:54 UTC 2018

Hi Everyone: 

After all of this thought and writing, I think we have two paths forward that are relatively straightforward to describe. Rather than recap the arguments made here, I will just go right into my recommendations for next step and why. The Support Team will follow this with a better summation of what has transpired and how that leads to the recommendations below. 

It is clear that camps within our the team are at loggerheads with regard to how geographic basis and natural v legal persons should be handled within the proposed policy recommendations. 

Current situation and recent developments:

Coming out of the small group meeting #1 during a teleconference, there was an agreement in principle that it was necessary to perform research in order to inform the policy discussion regarding the feasibility of differentiating between legal and natural persons. That agreement survived its initial introduction into the whole team where the comments centered around: (1) the adjectives used to describe the sense of urgency concerning the work, and (2) sharpening the detail regarding steps to be taken after the research. (There was never an agreement about how to proceed regarding differentiation of data subjects based on geographical considerations.)

Starting Friday, substantial markups to the legal v natural agreement on doing research initiated this current three-day email chain. 

Preferred Recommendation (there are two):

Go back to the agreement in principle that was reached in the small team with representatives from all groups to undertake research to determine if, how and to what extent we can distinguish between legal and natural persons. Then extend that research on to the geographic basis issue. A small group of us can contribute to the terms of reference for this research after the initial report is issued.

Here is my rationale for this recommendation: 

1) The various arguments laid out in all these emails on this list make the case themselves for the need to do research. 

For example, if the ICO says that processors can rely on data subject-provided information, does that mean that personal information mistakenly disclosed can be published without liability? We don’t know. We are setting up this and other questions for DPAs. Isn’t that … research?  

There are other scenarios in the emails that will take research to sort through: whether ccTLD experiences are relevant, or whether a registrant boarding a train and leaving the EU for China while another registrant boarding a ferry for Marseilles will both be protected by GDPR. All this takes research to sort out. 

Nearly all of the emails on this list have to do with scenarios in support of one position or another - but all need to be studied in order for us to determine if and how distinctions can be made.

2) Many of the arguments laid out are conclusory or without authority. I don’t think the research can have a preordained outcome. To make one point for each line of thinking:
	a) In the case of natural vs legal data subjects, some seek to build in in an implementation plan without knowing if or to what degree a solution is implementable
	b) In the case of Geographical distinctions between registrants, some are stating that such a distinction is categorically unimplementable without authority or evidence provided. 

I think the “truth will out” on these questions and we should not try to push research or our arguments to a pre-ordained outcome.

3) This will provide time to take the effects of existing laws in other jurisdictions into account - if that is deemed desirable. 

4) This will take this discussion out of the critical path of finishing our reports, without leaving a blank. 

5) The results of the research still must be considered by this team (or its successor) and a consensus derived. Research informs policy; it does not create policy.

6) If we agree to this approach, we can start the research now. If we temporize, there will be little done that will resolve this issue set over the next few months. Taking action in an attempt to understand all the complexity is the responsible thing to do. 

7) These are complicated questions and research-based policy-making is required to answer them. How do we meet the timeline and still act in a thorough, detailed manner? By launching research and, in the meantime, going back to the rest of our questions. Whatever our policy conclusions are, even if we are deadlocked in several months time, we should be informed by information garnered from DPAs and other sources. 

The only other recommendation: 

MemorialIze the differences between the two sides on each of the two issues, explaining the arguments for each and asking for public comment on these issues. 

Here is my rationale for and against this recommendation: 

1) It will allow us to publish the initial report and, properly framed, can garner specific public comment. 

However, other factors really argue against maintaining the current status and not taking some action:

2) In the time allotted for public comment, no commenter will be able to perform any meaningful research either. There might be reference to a study that partially informs our work, but not a dispositive study. At the end of the comment period, we are likely to be in the same place.

3) It is hard to see how the public comment will differ from our discussion, in this list, to date. 

4) Even if we take the preferred research path above, we can still conduct the comment period on the current position of the parties. 

5) If we have no outcome on this issue, the result, to me, is unknown and represent a risk to all parties at the table.

Conclusion

I thought is was remarkable that we came together and agreed to undertake this research on this difficult topic. It was a significant, meaningful compromise that embodied our reason for being here. 

I don’t see anything in all the emails that indicate another compromise is possible unless that discussion is informed with significant, new information. I believe the appropriate path for this group is to recognize the differences cannot be resolved without something new and to take this path. 

Talk to you soon and best regards,

Kurt

> On Nov 5, 2018, at 4:38 PM, Mark Svancarek (CELA) via Gnso-epdp-team <gnso-epdp-team at icann.org> wrote:
> 
> Sorry for being dense, I still have questions.
>  
> It is not surprising that the addition of a new process step would generate short term inefficiencies.  It’s 5 years later – are the verification rates improved from 2014?
> How would an optional “let me self-identify as a corporation” capability be likely to cause verification disruptions?
>  
> /marksv
>  
> From: James M. Bladel <jbladel at godaddy.com> 
> Sent: Monday, November 5, 2018 13:28
> To: Mark Svancarek (CELA) <marksv at microsoft.com>; gnso-epdp-team at icann.org
> Subject: Re: Contracted Parties and Small Teams #1 and #2
>  
> Mark –
> 
> Shortly following the launch of the 2013 RAA’s requirements for WHOIS Verification, registrars noted that approx. 800,000 domains had been suspended in the first few months. The number continued to climb for a few years, and most were categorized as “false positives”
>  
> Here’s some coverage of that data at the time.
> https://domainnamewire.com/2014/06/24/over-800000-domain-names-suspended-due-to-2013-raa/ <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fdomainnamewire.com%2F2014%2F06%2F24%2Fover-800000-domain-names-suspended-due-to-2013-raa%2F&data=02%7C01%7Cmarksv%40microsoft.com%7Cda2443c1e64e4e0ee1c908d6436e0151%7C72f988bf86f141af91ab2d7cd011db47%7C1%7C0%7C636770537081603248&sdata=fcfDJ%2FNKrCk6V%2FOd8hitL1LkU%2FmIQUltDyn9e8UJo5I%3D&reserved=0>
>  
> Any program that depends on Registrant self-categorization, self-declaration, or receipt & acting upon a notice has a huge error factor.  For GoDaddy in 2014, the RAA verification rate was in the high 70% or low 80%, meaning that service to tens of thousands of customers was delayed or disrupted.
>  
> It’s this experience that causes Contracted Parties (but particularly Registrars) to be skeptical of any requirement to just “send an email” or “have the Registrant check a box.”  It doesn’t scale.
>  
> J.
>  
>  
> -------------
> James Bladel
> GoDaddy
>  
>  
> From: "Mark Svancarek (CELA)" <marksv at microsoft.com <mailto:marksv at microsoft.com>>
> Date: Monday, November 5, 2018 at 15:14
> To: "James M. Bladel" <jbladel at godaddy.com <mailto:jbladel at godaddy.com>>, "gnso-epdp-team at icann.org <mailto:gnso-epdp-team at icann.org>" <gnso-epdp-team at icann.org <mailto:gnso-epdp-team at icann.org>>
> Subject: RE: Contracted Parties and Small Teams #1 and #2
>  
> James, can you clarify this:
>  
> “many of whom could lose access to their registrations.”
>  
> From: Gnso-epdp-team <gnso-epdp-team-bounces at icann.org <mailto:gnso-epdp-team-bounces at icann.org>> On Behalf Of James M. Bladel
> Sent: Monday, November 5, 2018 10:57
> To: gnso-epdp-team at icann.org <mailto:gnso-epdp-team at icann.org>
> Subject: [Gnso-epdp-team] Contracted Parties and Small Teams #1 and #2
>  
> ePDP Colleagues and WG Leadership -
>  
> This morning, Registry and Registrar representatives met to discuss the status of potential recommendations from Small Group #1 (Legal vs. Natural) and Small Group #2 (Geographic Regions) in our Draft Initial Report.
>  
> We concluded that there are some legal bases supporting these distinctions under GDPR and other data protection laws, and note that our Initial Report supports this.  However, we reiterate our numerous high-level concerns against making any Consensus Policy recommendations for contractual requirements in these areas.
>  
> Our concerns involve:
>  
> Legal - Aside from GDPR, other data protection laws are less clear on the distinction between legal and natural persons.  Future regulations may contain contrary requirements. Furthermore, data of legal entities may contain or consist of personal information of natural persons, which would be entitled to protection under the GDPR and similar data protection regimes. Likewise, the geographic distinctions also create uncertainties.
>  
> Technical - Contracted Parties are uniquely situated to assess the current level of the technological means available to us, and it is our stated position that a technical basis to reliably and confidently make such a distinction does not exist. Especially because any distinction schema would be dependent upon Registrant Self-Identification, which is fraught with error.
>  
> Commercial - Developing and deploying this technology will involve significant costs, which may be prohibitive for smaller organizations and a barrier to market entry.  Regardless of whether the distinction(s) are applied to new registrations or legacy domain names, it would be a logistical nightmare for Contracted Parties, and a source of confusion for Registrants, many of whom could lose access to their registrations.
>  
> Asymmetrical Risks vs. Benefits -  Contracted Parties would assume all regulatory risks of such an obligations, exclusively for the benefit of unburdened third parties.
>  
> Scope - The distinction between Legal and Natural persons, or geographic regions, does not currently exist in the Domain Name System.  Therefore, any recommendation mandating this change is outside the scope of the ePDP, and possibly the “picket fence” of Registrar and Registry contracts.
>  
> 
> As a result, and for the avoidance of doubt, Contracted Parties oppose/reject any recommendations for new contractual requirements in the ePDP Draft Initial Report, and will remain opposed to these recommendations as we move towards final recommendations.
>  
> Thank you,
>  
> J.
>  
> -------------
> James Bladel
> GoDaddy
>  
> _______________________________________________
> Gnso-epdp-team mailing list
> Gnso-epdp-team at icann.org
> https://mm.icann.org/mailman/listinfo/gnso-epdp-team

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/gnso-epdp-team/attachments/20181105/19736008/attachment-0001.html>