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

Fri Aug 30 13:00:59 UTC 2019

That seems a bit of an extreme interpretation. We agreed not to make no
differentiation based on geo for the smple fact that anything else would be
an administrative nightmare.
There are so many variables why a set of data may be protected under the
GDPR (and comparable regulations) that it seemed unfeasible to design a
system that made such differentiations.

Consider the following scenarios triggering protection just under GDPR:
-Registrar in EU
-Reseller in EU
-Registry in EU
-Reseller of reseller (whom we usually do not know) in the EU
-Registrant in EU
-Other Contact in EU
-Registrar outside the EU, but processing in the EU (For example using a
Registrar backend service)
-Registry outside the EU, but processing in the EU (For example using a
Registry backend service)
-Registrar outside the EU, Reseller outside the EU but reseller processing
in the EU
and many many more.

Having to look at each data set like this individually is simply not
feasible for a contracted party, hence the decision (and need) to simply
treat all data as protected.

And while I hate to contradict you Brian, the potentially problematic part
is never the act of withholding, and always the act of disclosing, at least
from a liability perspective.

-- 
Volker A. Greimann
General Counsel and Policy Manager
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On Fri, Aug 30, 2019 at 1:56 PM King, Brian via Gnso-epdp-team <
gnso-epdp-team at icann.org> wrote:

> 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
>
> On Aug 30, 2019, at 7:22 AM, farzaneh badii <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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