[Gnso-epdp-team] European Commission comments on Phase 1 report

Mueller, Milton L milton at gatech.edu
Tue Apr 23 18:04:13 UTC 2019

There is no inconsistency between the two statements. I am struggling to understand why key members of ICANN’s board do not understand this.

Purposes determine what data is collected and how it can be used by the controller. Disclosure to third parties with legitimate interests is not a purpose ICANN has in collecting and using registrant data, but disclosure Is  nevertheless something that can happen legally when certain conditions are met. When a credit card company collects PII about me, its purpose is to facilitate financial transactions, it is not to provide my name and address to the police. But legally, the police can request disclosure of that information from the credit card company under certain conditions set by law. What is so difficult to understand there?

In the statements below, the EC merely insists, correctly, upon distinguishing between ICANN’s purposes for collecting and using registrant data, and its reasons for disclosing it to third parties. This does not rule out all disclosure to third parties with legitimate interests.

During the EPDP deliberations, the same point was made repeatedly by public comments, and a majority of the EPDP members.

The law is clear. Some in this debate are trying to erect a false dichotomy: either we have ICANN collecting and disclosing registrant data indiscriminately, as it did during the old Whois, or there is no disclosure to third parties at all. Do you really think this is the choice we have?


From: Gnso-epdp-team <gnso-epdp-team-bounces at icann.org> On Behalf Of Chris Disspain
Sent: Tuesday, April 23, 2019 11:26 AM
To: Volker Greimann <vgreimann at key-systems.net>
Cc: 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.

-- Ayden

‐‐‐‐‐‐‐ 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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