[Gnso-epdp-team] European Commission comments on Phase 1 report
James M. Bladel
jbladel at godaddy.com
Tue Apr 23 16:12:45 UTC 2019
Thanks, Chris. I also read the EC letter with some confusion, so glad to see I wasn’t alone. I think it muddied the waters more than clarified them.
At the dawn of Phase 2, we’re left with (1) There needs to be some process for disclosing redacted RDS data, and (2) that process needs to be compliant with GDPR. Those aren’t controversial, but we need our friends in Brussels to help this group reconcile the two. And this letter doesn’t provide much help in doing that.
From: Gnso-epdp-team <gnso-epdp-team-bounces at icann.org> on behalf of Chris Disspain <chris at disspain.uk>
Date: Tuesday, April 23, 2019 at 10:26
To: Volker Greimann <vgreimann at key-systems.net>
Cc: "gnso-epdp-team at icann.org" <gnso-epdp-team at icann.org>
Subject: Re: [Gnso-epdp-team] European Commission comments on Phase 1 report
Indeed, thanks Volker. It is both important and useful. It is also confusing although that may only be to me. What is said below appears to be directly at odds with things being said by the DPAs and EC representatives.
In its statement of 27 May 2018 (https://edpb.europa.eu/news/news/2018/european-data-protection-board-endorsed-statement-wp29-icannwhois_en) the EDPB said:
"As expressed also in earlier correspondence with ICANN (including this letter<http://ec.europa.eu/newsroom/just/document.cfm?doc_id=48839> of December 2017 and this letter<http://ec.europa.eu/newsroom/article29/document.cfm?action=display&doc_id=51021> of April 2018), WP29 expects ICANN to develop and implement a WHOIS model which will enable legitimate uses by relevant stakeholders, such as law enforcement, of personal data concerning registrants in compliance with the GDPR, without leading to an unlimited publication of those data."
And during a Board GAC call last week on the Kobe GAC Communique (https://gac.icann.org/minutes/gac%20kobe%20communiqué%20-%20gac-board%20clarification%20call%20notes%20-%2015april2019%20(final).pdf)<https://gac.icann.org/minutes/gac%20kobe%20communiqu%C3%A9%20-%20gac-board%20clarification%20call%20notes%20-%2015april2019%20(final).pdf)> in a discussion about the need for an access model, the work carried out by the Technical Study Group to design one and how ICANN can get legal advice for the DPAs about the legality of that model, the Commission said that although it was not is a position to speak for the EU member of the GAC...:
"European Commission reiterated its willingness to help facilitate communications with DPAs, and in particular the Belgian DPAs who it indicated has been chosen to be the lead DPA on this issue for the EU, a European Commission further suggested a two-step process: first, considering with legal advisors implementation options to achieve the aims of the EPDP report; and second, start consulting with the lead DPA to get their views before consulting the full EDPB once more, with facilitation from the Commission as needed"
I’m struggling to align the above with the input below.
On 18 Apr 2019, at 16:08, Ayden Férdeline <icann at ferdeline.com<mailto:icann at ferdeline.com>> wrote:
Thank you for highlighting this important and useful contribution, Volker.
‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐
On Thursday, April 18, 2019 4:37 PM, Volker Greimann <vgreimann at key-systems.net<mailto:vgreimann at key-systems.net>> wrote:
Dear fellow members,
the European Commission just provided very valuable and constructive insights into our reports that we would be well-advised to take into account in Phase 2:
"The European Commission recognises this (the recommendation of purposes and association with processing activities) as a long due and important step forward in the ongoing reform of the WHOIS system. Having a clear definition of the purposes for the processing of the data in the WHOIS system is an essential pre-requisite for ensuring a GDPR-compliant system."
"the overall model would benefit from making even more explicit the links between the purposes for processing personal data and the specific processing activity(ies) as well as the specific personal data items."
"Accordingly, the European Commission considers that the purposes for processing WHOIS personal data by ICANN and/or the contracted parties should not include enabling access by third parties. This is also at the core of the concerns expressed for some time by the DPAs and the European Data Protection Board (EDPB), which have clarified that the purposes of ICANN and contracted parties must not be conflated with the interests of third parties in accessing registration data."
"Notwithstanding the above, the European Commission would like to acknowledge that maintaining such a distinction does not per se limit WHOIS data access by/disclosure to third parties, but merely differentiates between ICANN’s own purposes (e.g. maintaining the security, stability and resilience of the Domain Name System) which are capable of justifying collection of the data in the first place, and subsequent processing (enabling access to and disclosing WHOIS data) for legitimate purposes pursued by third parties."
"In the Report, Article 6(1) (f) of the GDPR is often invoked. The European Commission would like to recall that legitimate interest is one of the six possible legal bases provided under the GDPR1. (...) Specifically, the legitimate interest needs to outweigh the interest of the individual concerned. Given that there is an interference with the fundamental right to data protection of an individual, a balancing of interests is necessary to properly justify the reasons for such an interference. (...) The balancing is thus a responsibility (not a prerogative) of the data controller."
"Third parties seeking access also need a legal basis for processing the data. For instance, an IPR rightholder might have a legitimate interest to gain access to WHOIS personal data in order to ensure his/her IP right is protected and not abused. The existence of such a right needs to be substantiated and the necessity/proportionality of accessing that data ascertained. This IPR rightholder might rely on Art. 6(1) (f)."
"GDPR legitimate interest cannot be used as a legal basis for data processing by public authorities".
"With regard to the various processing activities involved in the WHOIS system, the issue of whether they involve an international data transfer under the GDPR should be considered. (...) it is also necessary to identify an appropriate legal ground for the international transfer"
"the current situation is affecting EU Member State authorities’ ability to obtain legitimate access to this data, necessary to enforce the law online, including in relation to the fight against cybercrime"
All this seems to point in a very clear direction for our path ahead with regard to the disclosure model we will be working on. More on that when we get to this part of our deliberations.
Volker A. Greimann
General Counsel and Policy Manager
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