[Gnso-epdp-team] Recommendation 12 - Reasonable Access

Wed Feb 6 23:11:05 UTC 2019

Thanks Alan,

I do appreciate what you are saying here, and it is logical. However it is also why I object to this part of the recommendation. Where we disagree is on the role of ICANN Contractual Compliance, both today and into the future. I do not support enlarging its remit.

I do see value in having statistical records collected in some kind of uniform way. Civil society has a strong interest in understanding how private actors like, in our case, the contracted parties, make decisions. And I would like to be able to monitor this over time to ensure legitimate requests are being fulfilled while illegitimate ones are being rejected.

However there is a difference between seeing the merits in statistical data being collected, and wanting ICANN Compliance there "auditing" or policing the contracted parties. That is an approach I find too heavy handed, and I worry about the costs it would impose on registrants.

If we have a way to ensure this data is collected in a way where no costs are imposed onto registrants, and it is instead funded entirely by those private sector actors who seek to use it, whatever their motivation, then I think this would be worth discussing further. But I stress, the solution here will not involve turning to ICANN Compliance.

Ayden

‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐
On Wednesday, February 6, 2019 5:27 PM, Alan Greenberg <alan.greenberg at mcgill.ca> wrote:

> Ayden, prior to the Temp Spec, contracted parties had no need to reply to such requests because the information was public. With the Temp Spec and with the policy and Purposes we are recommending, contracted parties have a new obligation. Thus we are implicitly "expanding the role of Contractual Compliance" since their role is to ensure that contracted parties are fully fulfilling their obligations and we are adding obligations!
>
> Alan
>
> At 06/02/2019 03:19 PM, Ayden FÃ©rdeline wrote:
>
>> I oppose the edit put
>> forward by our colleagues in the ALAC that seeks to expand the role of
>> Contractual Compliance.
>>
>> However, if the desire is more along the lines of (2) and the tool was
>> funded on a cost-recovery basis by those seeking to utilize it, and not
>> indirectly or directly by registrants, I would not object to language
>> along the following lines:
>>
>> --
>> The EPDP Team recommends that ICANN org and the contracted parties
>> develop a mechanism that provides third party requestors with uniform
>> statistical information on the 1) nature of submitted requests, 2)
>> average processing time, and 3) the number of requests approved or
>> rejected, with rationale appropriately coded for information purposes.
>> Such a mechanism must be funded on a cost-recovery basis by those private
>> sector third parties who make access requests and seek to have access to
>> these records.
>> --
>>
>> Ayden
>>
>>  Original Message
>> On Wednesday, February 6, 2019 2:59 PM, Mark Svancarek \(CELA\) via
>> Gnso-epdp-team
>> <
>> [gnso-epdp-team at icann.org](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>>> wrote:
>>
>>> Hopefully there is some language which properly reflects the
>> variability of request responses while recognizing that nothing can be
>> judged successful or improved without measuring it.
>>>
>>> For example, in our online services (1) we offer a firm SLA to
>> our customers and reimburse them when we miss it, regardless why we
>> missed it... but (2) internally we generate more interesting metrics to
>> better understand the root causes, opportunities to improve, and the
>> relative frequency of the various issues. Also, this reduces
>> finger-pointing between teams.
>>>
>>> CPs cannot agree to language which implies (1); ALAC is
>> requesting something like (2).
>>>
>>> /marksv
>>>
>>> -----Original Message-----
>>> From: Gnso-epdp-team
>> [gnso-epdp-team-bounces at icann.org](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>> On Behalf Of Hadia Abdelsalam
>> Mokhtar EL miniawi
>>> Sent: Wednesday, February 6, 2019 11:36
>>> To: Alan Woods
>> [alan at
>> donuts.email](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>>> Cc:
>> [gnso-epdp-team at icann.org](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>>> Subject: Re: [Gnso-epdp-team] Recommendation 12 - Reasonable
>> Access
>>>
>>> Hi Alan,
>>>
>>> I am sorry that this is how you feel about our suggestion with
>> regard to compliance, certainly there was no intention to having a stick
>> to beat the contracted parties. Usually auditing is something that both
>> parties benefit from. In what sense does our suggestion put new
>> obligations on the contracted parties? It is just a means of verifying
>> the process and this is good for the CPs as well because it ascertains
>> the functionality of their system. Moreover how does the suggestion of
>> having some kind of auditing contradict with the fact that every single
>> request received must be considered individually? Additionally, we never
>> said that existing complaints' processes can not be used we only said
>> that you need to agree on the auditing mechanisms/means or whatever you
>> want to call it. This is merely a suggestion to implement a sense of
>> trust into the system, rather than having that trust something as
>> intangible as good faith between the parties involved.
>>>
>>> Finally I invite you to put a few lines that speak about using
>> existing complaints processes in this regard.
>>>
>>> Hadia
>>>
>>> From: Alan Woods
>> [alan at
>> donuts.email](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>>> Sent: 06 February 2019 19:01
>>> To: Hadia Abdelsalam Mokhtar EL miniawi
>>> Cc: Marika Konings; Sarah Wyld;
>> [gnso-epdp-team at icann.org](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>>> Subject: Re: [Gnso-epdp-team] Recommendation 12 - Reasonable
>> Access
>>>
>>> To be perfectly honest, I think that Hadia & Alan's
>> suggestions, are perilously close to going against the the very nature of
>> the tentative agreements we have on Recommendation 12. If their point of
>> view is that ICANN compliance must be used as a stick to beat the
>> Contracted parties into submission/compliance, I find that exceptionally
>> unhelpful. It is not the role of the ePDP to create new obligations for
>> CPs outside of that which is necessary for GDPR compliance!
>>>
>>> The repeated issue of the parties is that it is nigh on
>> impossible to set this in stone; every single request received must be
>> considered individually, on its own merits (as the GDPR, which supersedes
>> all our machinations, requires). The CPs are coming to the table in
>> goodwill noting that we understand the need for predictability for 3rd
>> party requests. We have discussed at length the impossibility of setting
>> a strict timeline on such requests, I simply think this squanders the
>> goodwill in this agreement in now suggesting a frankly unimplementable,
>> or more likely a utterly ad hoc and random audit system, rather than
>> accepting that the contracted parties are acting in good faith, and will
>> continue to do so. For those CPs who do not act in good faith, I have a
>> feeling that a poor audit result regarding response to disclosure
>> requests will be the least of the issues.
>>>
>>> There are elements that are tangible and capable of ICANN review
>> upon complaints regarding same, using existing complaints processes.
>> Let's not reinvent the wheel here!
>>>
>>> So to be clear. The RYSG strongly opposes the ALAC addition.
>>>
>>> Alan
>>>
>>> [Donuts
>> Inc.]
>> [https://nam06.safelinks.protection.outlook.com/?url=http%3A%2F%2Fdonuts.domains&data=02|01|marksv%40microsoft.com|a9079d3d169b43325b3f08d68c6aa4ce|72f988bf86f141af91ab2d7cd011db47|1|0|636850787006891055&sdata=qNzaAlOZg%2FMQWGew0BAhQsiEgNSJWm93KQLay7KeXJM%3D&reserved=0](https://nam06.safelinks.protection.outlook.com/?url=http%3A%2F%2Fdonuts.domains&data=02|01|marksv%40microsoft.com|a9079d3d169b43325b3f08d68c6aa4ce|72f988bf86f141af91ab2d7cd011db47|1|0|636850787006891055&sdata=qNzaAlOZg%2FMQWGew0BAhQsiEgNSJWm93KQLay7KeXJM%3D&reserved=0)
>>> Alan Woods
>>> Senior Compliance & Policy Manager, Donuts Inc.
>>>
>>> The Victorians,
>>> 15-18 Earlsfort Terrace
>>> Dublin 2, County Dublin
>>> Ireland
>>>
>>>
>> [
>> https://nam06.safelinks.protection.outlook.com/?url=http%3A%2F%2Fstorage.googleapis.com%2Fsignaturesatori%2Ficons%2Ffacebook.png&data=02|01|marksv%40microsoft.com|a9079d3d169b43325b3f08d68c6aa4ce|72f988bf86f141af91ab2d7cd011db47|1|0|636850787006891055&sdata=zgvRrc4%2F2R4vEiotdSdqRqyFG768vmONrHXOs1ENVoI%3D&reserved=0
>> ]
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>> [
>> https://nam06.safelinks.protection.outlook.com/?url=http%3A%2F%2Fstorage.googleapis.com%2Fsignaturesatori%2Ficons%2Ftwitter.png&data=02|01|marksv%40microsoft.com|a9079d3d169b43325b3f08d68c6aa4ce|72f988bf86f141af91ab2d7cd011db47|1|0|636850787006891055&sdata=4JUZEzvlQHSFB7n7JYasT%2Byjs4cafuTysVYL%2Fn%2F7gZU%3D&reserved=0
>> ]
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>> ]
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>>>
>>> Please NOTE: This electronic message, including any attachments,
>> may include privileged, confidential and/or inside information owned by
>> Donuts Inc. . Any distribution or use of this communication by anyone
>> other than the intended recipient(s) is strictly prohibited and may be
>> unlawful. If you are not the intended recipient, please notify the sender
>> by replying to this message and then delete it from your system. Thank
>> you.
>>>
>>> On Wed, Feb 6, 2019 at 12:10 PM Hadia Abdelsalam Mokhtar EL
>> miniawi
>> <
>> [Hadia
>> at
>> tra.gov.egmailto](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>> :
>> [Hadia at
>> tra.gov.eg](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>>> wrote:
>>> Hi all , I have added a few words about compliance and the
>> implantation of the policy and hence propose the following minor edits to
>> recommendation number 12
>>>
>>> "
>>> The EPDP Team recommends that ICANN org and the contracted
>> parties develop a mechanism that allows ICANN Contractual Compliance to
>> audit response times to the requests.
>>> The EPDP recommends that the implementation of this policy
>> includes requirements of acknowledgement of recipient of requests and the
>> response to such requests, criteria for a " Reasonable Request for
>> lawful Disclosure" and a mechanism that allows ICANN Contractual
>> Compliance to audit response time to the requests.
>>>
>>> The implementation of this policy will include at a minimum
>> "
>>>
>>> The above is to replace
>>>
>>> "The EPDP Team recommends that criteria for a “Reasonable
>> Request for Lawful Disclosure” and the requirements for acknowledging
>> receipt of a request and response to such request will be defined as part
>> of the implementation[Kristina 1] of these policy recommendations but
>> will include at a minimum: "
>>>
>>> Hadia
>>>
>>> From: Gnso-epdp-team
>> [
>> mailto:gnso-epdp-team-bounces
>> at
>> icann.orgmailto:gnso-epdp-team-bounces at icann.org] On Behalf Of Hadia
>> Abdelsalam Mokhtar EL miniawi
>>> Sent: Wednesday, February 06, 2019 12:32 PM
>>> To: Marika Konings; Sarah Wyld;
>> [gnso-epdp-team at
>> icann.orgmailto](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>> :
>> [gnso-epdp-team at icann.org](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>>> Subject: Re: [Gnso-epdp-team] Recommendation 12 - Reasonable
>> Access
>>>
>>> Hi all, the below comments are on behalf of Alan G
>>>
>>> the proposal.
>>>
>>> 1.  still does not set an expectation that although SOME
>> requests may take the specified limit, not all should. Nor does it seem
>> to imply that the Contractual Compliance has any ability to audit
>> response times.
>>> 2.  I find the reference to "GDPR legal bases"
>> problematic. For example, under the current proposals, a registrar who is
>> operating full outside of the EU mat redact information for legal persons
>> and for natural persons not subject to the GDPR. What is the GDPR legal
>> basis for requesting information on such registrations. According to GDPR
>> there was no need for redaction to begin with, so a registrar can refuse
>> to provide any results with full impunity.
>>>
>>>     From: Gnso-epdp-team
>> [
>> [mailto:gnso-epdp-team-bounces at icann.orgmailto:gnso-epdp-team-bounces
>> at icann.org](mailto:gnso-epdp-team-bounces%20at%20icann.orgmailto:gnso-epdp-team-bounces%20at%20icann.org)
>> ] On Behalf Of Marika Konings
>>>
>>>
>>> Sent: Tuesday, February 05, 2019 11:43 PM
>>> To: Sarah Wyld;
>> [gnso-epdp-team at
>> icann.orgmailto](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>> :
>> [gnso-epdp-team at icann.org](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>>> Subject: Re: [Gnso-epdp-team] Recommendation 12 - Reasonable
>> Access
>>>
>>> Thanks, Sarah.
>>>
>>> EPDP Team members, as this topic is included in the agenda for
>> tomorrow’s meeting, please share any issues or concerns your group may
>> have with the modified language prior to the meeting, if possible. Staff
>> has taken the liberty to fix some formatting issues in the attached
>> version (some of the sub-bullets did not appear properly).
>>>
>>> Best regards,
>>>
>>> Caitlin, Berry and Marika
>>>
>>> From: Gnso-epdp-team
>> <
>> [gnso-epdp-team-bounces at
>> icann.orgmailto](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>> :
>> [gnso-epdp-team-bounces at icann.org](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>>> on behalf of Sarah Wyld
>> <
>> [swyld
>> at
>> tucows.commailto](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>> :
>> [swyld at
>> tucows.com](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>>>
>>> Organization: Tucows
>>> Date: Tuesday, February 5, 2019 at 12:31
>>> To:
>> "
>> [gnso-epdp-team at
>> icann.orgmailto](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>> :
>> [gnso-epdp-team at icann.org](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>> "
>> <
>> [gnso-epdp-team at
>> icann.orgmailto](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>> :
>> [gnso-epdp-team at icann.org](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>>>
>>>
>>> Subject: [Gnso-epdp-team] Recommendation 12 - Reasonable Access
>>>
>>> Hello All,
>>>
>>> As discussed on today's call, here is the proposed revised Rec.
>> 12 from RySG/RrSG. Thank you.
>>>
>>>
>> ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------
>>>
>>> Sarah Wyld
>>>
>>> Domains Product Team
>>>
>>> Tucows
>>>
>>> +1.416 535 0123 Ext. 1392
>>>
>>> On 1/31/2019 11:31 PM, Kurt Pritz wrote:
>>>
>>> Hello Everyone:
>>>
>>> Thanks again for your perseverance. And - thank you in advance
>> for your spirit of cooperation and compromise in considering the
>> attached. We have spent the last few days reviewing the transcripts and
>> other records of our recent discussions and then amending the Final
>> Report Recommendations - taking into account the Initial Report
>> Recommendations, the small team work, the conclusions in Toronto and
>> these last several meetings.
>>>
>>> The Recommendations included here are:
>>>
>>> Recommendation 5 - Data elements to be transferred from
>> Registrars to Registries
>>>
>>> Recommendation 10 - Email communication
>>>
>>> Recommendation 12 - Reasonable Access
>>>
>>> Recommendation 14 - Responsible Parties
>>>
>>> [Not included are Rec. 13 (sent earlier) and Rec. 11 and the
>> Research Purpose (to be sent tomorrow.]
>>>
>>> Each of these documents has a brief forward containing a
>> description of the pertinent discussion and an explanation for choosing
>> the wording in the Recommendations. They each then contain the
>> Recommendation as originally written and a redline of the proposed
>> recommendation based on the most recent discussions. Please read the
>> entire documents (they are not long), and not just the recommendation
>> itself.
>>>
>>> I am certainly not asking for you to stand silently by if you
>> disagree with these Recommendations because they would negatively impact
>> GDPR compliance. I am asking that you study the balancing that went into
>> this and be ready to accept wording in cases where it does not match your
>> own choice.
>>>
>>> Please review with your groups and return to us by Monday so
>> that we can put any of these on the Tues/Wed/Thur agendas.
>>>
>>> Sincerely,
>>>
>>> Kurt
>>>
>>> Gnso-epdp-team mailing list
>>>
>>>
>> [Gnso-epdp-team at
>> icann.orgmailto](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>> :
>> [Gnso-epdp-team at icann.org](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>>>
>>>
>> https://nam06.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.org%2Fmailman%2Flistinfo%2Fgnso-epdp-team&data=02|01|marksv%40microsoft.com|a9079d3d169b43325b3f08d68c6aa4ce|72f988bf86f141af91ab2d7cd011db47|1|0|636850787006901063&sdata=ztu02eOXYqmlM6hkr5cySLY7%2B08r5qpe4L5JXi%2F%2B%2B%2Fs%3D&reserved=0
>>>
>>> [Kristina 1]see previous comment about IRT/actor
>> _______________________________________________
>>> Gnso-epdp-team mailing list
>>>
>> [Gnso-epdp-team at
>> icann.orgmailto](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>> :
>> [Gnso-epdp-team at icann.org](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>>>
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>>>
>>> Gnso-epdp-team mailing list
>>>
>> [Gnso-epdp-team at icann.org](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>>>
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>>>
>>> Gnso-epdp-team mailing list
>>>
>> [Gnso-epdp-team at icann.org](https://mm.icann.org/mailman/listinfo/gnso-epdp-team)
>>>
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