[Gnso-epdp-team] Recommendation 13 - Responsibilities of the Parties - email list discussion
alan at donuts.email
Fri Feb 8 13:00:25 UTC 2019
Just to be exceptionally clear and although I do not wish to belabor the
point any farther, I still submit, on the record, that the correct term to
be used in the recommendation is 'AGREEMENT'
Whereas I appreciate that ICANN have mirrored the GDPR language of Art 26
in their use of the word of 'arrangement' I believe it would make more
sense to consider the subsequent interpretation of their lead DPA (i.e
Belgium, as confirmed by the Belgian Autorité de Protection des Données
(APD) letter of 15th January 2019
the therein referenced letter of September 26th, 2018
I would therefore respectfully submit that it remains more proper for our
recommendation to therefore consider and mirror the Belgian legislatures
and the APD's interpretation of the GDPR as being our guiding, if not
*1)* *Article 52* of the Loi relative à la protection des personnes
physiques à l’égard des traitements de données à caractère personnel (30
page 27 of the Gazette as linked) requires
" *Un accord définit de manière transparente les obligations respectives
> des responsables conjoints de traitement*, " [emphasis added],
Which translates to "*an agreement* which defines the respective
obligations of the joint controllers" [emphasis added]
*2)* The APD have also released a legal notation of the July 2018 law
and they note the joint controller requirement as being "*par voie
page three under heading or again to translate, is an "by agreement".
(see page 3 under the heading "*Responsables conjoints de traitment"*)
Therefore I still believe and submit that the ePDP teams original wording
of "agreement" should stand, and I don't believe that ICANN's reference to
their past statement i.e. "*arrangement”* could take the form of an
agreement, a policy, or a specification" is sufficient as it dilutes the
expectation of the APD. This is not sufficiently specific in the
circumstances; nor does it provide the comfort that the ePDP team is
seeking in this recommendation from ICANN.
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On Fri, Feb 8, 2019 at 11:28 AM Kavouss Arasteh <kavouss.arasteh at gmail.com>
> Dear Kurt
> I have indicated at several occasions that when we refer to an action to
> be performed by two parties / entities ,we need to indicated " as mutually
> agreed" The proposed text to be amended to read as below
> The EPDP Team recommends that ICANN Org negotiates and enters into
> required data protection agreements such as a Data Processing Agreement
> (GDPR Art. 28) or Joint Controller Agreement (Art. 26), as appropriate,
> with the Contracted Parties. In addition to the legally required components
> of such agreement, the agreement shall specify the responsibilities of the
> respective parties for the processing activities as described therein.
> Indemnification clauses shall ensure that the risk for certain data
> processing is borne by either one or multiple parties, "AS MUTUALLY AGREED
> " that determine the purpose and means of the processing. [*Due
> consideration should be given to the analysis carried out by the EPDP Team
> in its Final Report.*]
> 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.
> Deadline: Monday, 28 January, additional email discussion might follow
> depending on responses.
> Please kindly insert that in the text
> On Thu, Jan 24, 2019 at 12:23 AM Kurt Pritz <kurt at kjpritz.com> wrote:
>> Hi Everyone:
>> With the goal of progressing on issues via email, the leadership team has
>> considered the discussion provided during the Toronto meeting and suggests
>> the following compromise language to address the different positions
>> expressed. (This is a resend of an earlier email with only the subject line
>> of the email updated.)
>> The language below is the same language proposed by the small team that
>> reviewed the comments, but modified:
>> - as suggested by Diane during the meeting to reflect that GDPR Art
>> 28 is unlikely to apply in this situation, and
>> - by an addition (bracketed & bolded below) to reference the analysis
>> in the Final Report that this team recommends the creation of Joint
>> Controller Agreements, to appropriately influence the negotiation of
>> GDPR-compliant agreements.
>> This language is intended to strike a balance between those preferring to
>> leave some flexibility for ICANN Org and Contracted Parties to consider the
>> appropriate agreements and those preferring to be specific about the type
>> of agreement to be pursued.
>> I understand this is a complex topic that might require additional
>> discussion but it is also possible that we cannot be dispositive on this
>> issue prior to a lengthy contract formation discussion that extends well
>> beyond our time frames. For that reason, we are taking the liberty of
>> making this recommendation and hope you accept it in the spirit it is
>> *Proposed Recommendation #13 Language*
>> The EPDP Team recommends that ICANN Org negotiates and enters into
>> required data protection agreements such as a Data Processing Agreement
>> (GDPR Art. 28) or Joint Controller Agreement (Art. 26), as appropriate,
>> with the Contracted Parties. In addition to the legally required components
>> of such agreement, the agreement shall specify the responsibilities of the
>> respective parties for the processing activities as described therein.
>> Indemnification clauses shall ensure that the risk for certain data
>> processing is borne by either one or multiple parties that determine the
>> purpose and means of the processing. [*Due consideration should be given
>> to the analysis carried out by the EPDP Team in its Final Report.*]
>> 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.
>> Deadline: Monday, 28 January, additional email discussion might follow
>> depending on responses.
>> Gnso-epdp-team mailing list
>> Gnso-epdp-team at icann.org
> Gnso-epdp-team mailing list
> Gnso-epdp-team at icann.org
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