[Gnso-epdp-team] FW: Geographic Basis - Recommendation for inclusion in the Final Report
Alan Woods
alan at donuts.email
Tue Feb 5 11:25:12 UTC 2019
Great for me.
Thank Kristina. (PS i'm catching up on my backlog in reverse order so this
may have moved on .. but I am on board regardless!)
Alan
[image: Donuts Inc.] <http://donuts.domains>
Alan Woods
Senior Compliance & Policy Manager, Donuts Inc.
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On Sun, Feb 3, 2019 at 2:05 PM Amr Elsadr <aelsadr at icannpolicy.ninja> wrote:
> Hi,
>
> This looks good to me.
>
> Thanks.
>
> Amr
>
> Sent from Mobile
>
>
> On Sun, Feb 3, 2019 at 3:58 PM, Rosette, Kristina via Gnso-epdp-team <
> gnso-epdp-team at icann.org> wrote:
>
> Hi,
>
>
>
> Here’s where I’ve landed and what I propose . (Additions from Kurt’s
> initial text in bold, deletions in strike through).
>
>
>
> The EPDP Team recommends that the existing requirements of §§ 2.1 and 3 of *Appendix
> A to *the Temporary Specification remain in place. *For the avoidance
> of doubt, the EPDP Team recommends that Registrars and Registry Operators *,
> i.e., contracted parties should (and are) permitted
> to differentiate between registrants on a geographic basis, but are not
> obligated to do so.
>
> Based on the legal guidance that is provided on this topic*, t*:
>
> - The EPDP Team may reconsider this recommendation in phase 2 of its
> work*. *, an
> - Consider the feasibility conditions and methodology for the
> development of a rule set for making decisions on geographic distinctions.
>
> -*-
>
>
>
> Clean version:
>
>
>
> The EPDP Team recommends that the existing requirements of §§ 2.1 and 3 of
> Appendix A to the Temporary Specification remain in place. For the
> avoidance of doubt, the EPDP Team recommends that Registrars and Registry
> Operators are permitted to differentiate between registrants on a
> geographic basis, but are not obligated to do so. Based on the legal
> guidance that is provided on this topic, the EPDP Team may reconsider
> this recommendation in phase 2 of its work.
>
>
>
> K
>
>
>
>
>
>
>
> *From:* Gnso-epdp-team [mailto:gnso-epdp-team-bounces at icann.org] *On
> Behalf Of *Rosette, Kristina via Gnso-epdp-team
> *Sent:* Tuesday, January 29, 2019 9:13 PM
> *To:* EPDP <gnso-epdp-team at icann.org>
> *Subject:* Re: [Gnso-epdp-team] Geographic Basis - Recommendation for
> inclusion in the Final Report
>
>
>
> Hi,
>
>
>
> I’m still trying to come up with language for the first part of the
> recommendation that may address my concerns, Amr’s and Farzaneh’s.
>
>
>
> In the meantime, my understanding about the rule set idea was similar to
> Farzaneh’s.
>
>
>
> K
>
>
>
>
>
> *From:* Gnso-epdp-team [mailto:gnso-epdp-team-bounces at icann.org
> <gnso-epdp-team-bounces at icann.org>] *On Behalf Of *farzaneh badii
> *Sent:* Tuesday, January 29, 2019 9:03 AM
> *To:* Amr Elsadr <aelsadr at icannpolicy.ninja>
> *Cc:* EPDP <gnso-epdp-team at icann.org>
> *Subject:* Re: [Gnso-epdp-team] Geographic Basis - Recommendation for
> inclusion in the Final Report
>
>
>
> Thanks Kurt.
>
>
>
> I agree with Amr but I don't think Appendix A, section 2.1 and 3 should
> be included. Those clauses are not about Geo differentiation of
> "registrants" only.
>
>
>
> Also I saw the draft final version of the report and there is no consensus
> to discuss the feasibility conditions and methodology for the development
> of a rule set, Milton also recorded our objection about this multiple
> times. Why did it end up in the recommendation again? I suggest deleting
> the "consider the feasibility ..." bullet point. If we want to dig this
> topic out again and waste hours of our time discuss whether to do a study
> on the feasibility of how to provide less data protection for those who are
> not located in the EU, then we can decide on that in phase 2.
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
> Farzaneh
>
>
>
>
>
> On Fri, Jan 25, 2019 at 3:32 PM Amr Elsadr <aelsadr at icannpolicy.ninja>
> wrote:
>
> Hi Kurt,
>
>
>
> Thanks for this. It seems fine to me, except that I’m not clear why we
> would wish for the final report to suggest that the EPDP Team *“agrees
> that contracted parties should be (and are) permitted to differentiate
> between registrants on a geographic basis”*.
>
>
>
> The emphasis here is on the word “should”. I don’t believe this is
> accurate, as there have been a number of views expressed on why
> differentiation between registrants on a geographic basis should NOT be
> done. A few are mentioned in your email below, but several others are not.
> These might not have been brought up very recently, such as during the
> review of public comments. However, they certainly were in the discussions
> leading up to the publication of the initial report.
>
>
>
> I believe there is still divergence within the EPDP Team on whether
> Contracted Parties should do anything at all in the context of this
> recommendation. Furthermore, the Temp Spec doesn’t indicate whether or not
> Contracted Parties *SHOULD* do anything here either. It only says that
> those Contracted Parties to whom section 2.1 of appendix A is applicable to
> *MUST* apply the requirements in sections 2 and 4 of the same appendix,
> and that those to whom section 3 of appendix A are applicable *MAY* do
> the same.
>
>
>
> I would prefer that the recommendation be amended to simply say:
>
>
>
> The EPDP Team recommends that the existing requirements of §§ 2.1 and 3 of
> *Appendix A of* the Temporary Specification remain in place, i.e.,
> contracted parties should (and are) permitted to differentiate between
> registrants on a geographic basis, but are not obligated to do so.
>
> Based on the legal guidance that is provided on this topic:
>
> - The EPDP Team may reconsider this recommendation in phase 2 of its
> work, an
> - Consider the feasibility conditions and methodology for the
> development of a rule set for making decisions on geographic distinctions.
>
> In practically implementable terms, this achieves the same purpose of the
> recommendation language you proposed, without suggesting the EPDP Team has
> reached consensus on whether or not geo differentiation of registrants
> SHOULD be done.
>
>
>
> Thanks.
>
>
>
> Amr
>
>
>
> On Jan 25, 2019, at 6:05 PM, Kurt Pritz <kurt at kjpritz.com> wrote:
>
>
>
> Hi Everyone:
>
> With the ongoing goal of progressing issues via email, the leadership and
> support teams have considered the review of public comment made during the
> recent plenary conference call and suggests the following language to
> capture the agreement in principle that was developed on making Geographic
> Distinctions.
>
> Based on that discussion the recommendation below is proposed for EPDP
> Team consideration.
>
>
>
> *Team Discussion*
>
> The Initial Report did not contain a Recommendation for the handling of
> personal data based on geographical considerations. Instead, the
> Initial Report asked three questions so that the community input could
> provide a guide for the EPDP Teams deliberations leading to the Final
> Report. Those questions were:
>
> h) Applicability of Data Processing Requirements
>
> h1) Should Registry Operators and Registrars (“Contracted Parties”) be
> permitted or required to differentiate between registrants on a geographic
> basis?
>
> h2) Is there a legal basis for Contracted Parties to differentiate
> between registrants on a geographic basis?
>
>
> The EPDP Team considered the public comment and developed the following
> thoughts in its deliberations in addressing the charter questions:
>
> - The EPDP Team discussed this extensively (as documented in the
> Initial Report) as well as in the context of the review on the public
> comments received on the Initial Report. In relation to part
> of charter question h1, the EPDP Team agrees that contracted parties should
> be (and are) permitted to differentiate between registrants on a geographic
> basis;
> - However, the EPDP Team members have divergent views on whether
> differentiation on a geographic basis should be required.
> - Recognizing that ICANN is a Data Controller in many scenarios and
> that ICANN may be considered “established” in Europe (within the meaning of
> the GDPR), the EPDP Team discussed whether those factors would have an
> effect upon the discussion and determining GDPR-compliant outcomes.
> It became clear that legal guidance in relation to the applicability of
> GDPR in the context of ICANN having an ‘establishment’ in Europe could
> further inform requirements.
> - The EPDP Team also discussed the possibility of developing a set of
> rules for guiding the making of geographical distinctions in an
> GDPR-compliant manner (akin to the EWG hypothesized “rules engine”).
> The Team agreed that creating this set of rules was a complex task (just as
> it would be for individual registrars) and agreed such development could
> not occur within the remit of this Phase I EPDP. Such a development would
> also be dependent on the response to the aforementioned legal guidance.
>
>
>
> *EPDP Team Recommendation (a new recommendation as there was none in the
> Initial Report) *
> The EPDP Team recommends that the existing requirements of §§ 2.1 and 3 of
> the Temporary Specification remain in place, i.e., contracted parties
> should (and are) permitted to differentiate between registrants on a
> geographic basis, but are not obligated to do so.
>
> Based on the legal guidance that is provided on this topic:
>
> - The EPDP Team may reconsider this recommendation in phase 2 of its
> work, an
> - Consider the feasibility conditions and methodology for the
> development of a rule set for making decisions on geographic distinctions.
>
>
>
>
>
> *Action*
>
> Please indicate on the mailing list whether you have any concerns about
> these modifications and/or what other aspects of this recommendation should
> be discussed. If there are additional questions for ICANN Compliance that
> would serve to inform the deliberations on this recommendation, please
> share these also.
>
> Deadline: Tuesday, 29 January, additional email discussion might follow
> depending on responses.
>
>
>
> Best regards,
>
> Kurt
>
>
>
>
>
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