[Gnso-epdp-team] Zero-Draft Doc- Assessment of the data being requested

[King, Brian]

Hi Farzaneh,

That’s not quite right. We decided that CPs could differentiate in the context of publication/redaction, not in the context of SSAD.

In the SSAD context, the act of withholding data when someone needs it, without a legal basis for withholding it (i.e. application of privacy law), would be legally problematic for the entity withholding access. In this case, withholding the data could make the controller secondarily liable for the bad actor’s conduct.

So, the data must be disclosed unless there’s a legal basis for withholding it. For legal persons and natural persons not covered by data privacy law, there is no legal basis for withholding the data, and there should be no balancing test.

Brian J. King
Director of Internet Policy and Industry Affairs
MarkMonitor / Part of Clarivate Analytics
Phone: +1 (443) 761-3726
brian.king at markmonitor.com<mailto:brian.king at markmonitor.com>

On Aug 30, 2019, at 7:22 AM, farzaneh badii <farzaneh.badii at gmail.com<mailto:farzaneh.badii at gmail.com>> wrote:

I don't know if this has been flagged and I know that the zero draft is frozen for now but I believe the diagram about the assessment of the data requested Step 2, is not correct. It says that if the data is non-EEA data may be released with no balancing test performed. In phase one we agreed that the contracted parties can make geo diff if they want. The ones that do not do geo diff should definitely follow the disclosure policy we are coming up with and perform the balancing test regardless of EEA or non-EEA data. I don't think they should just release the data. As we argued, ICANN's policies are global. If disclosure is global, data protection has to be global too.


Farzaneh
<epdp-p2_swimlane_v0.2.2.pdf>
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