[Gnso-epdp-team] [Ext] Re: EPDP Recommendation 11 - email list discussion
Trang Nguyen
trang.nguyen at icann.org
Tue Jan 29 01:50:34 UTC 2019
Dear All,
Regarding the revised text for recommendation #11 that Alan Woods circulated, the text seems to imply that retained data is only used for enforcement of the TRDP. ICANN org would like to make the EPDP Team aware of other reasons retained data are used, which are reflected in the Description of 2013 RAA Data Retention Specification - Data Elements, Legitimate Purposes for Collection/Retention and Recipients of Data < https://www.icann.org/en/system/files/files/raa-data-retention-elements-10aug15-en.pdf>.
Best,
Dan & Trang
ICANN Org Liaisons
From: Alan Woods <alan at donuts.email>
Date: Thursday, January 24, 2019 at 8:50 AM
To: Theo Geurts <gtheo at xs4all.nl>
Cc: Trang Nguyen <trang.nguyen at icann.org>, EPDP <gnso-epdp-team at icann.org>
Subject: [Ext] Re: [Gnso-epdp-team] EPDP Recommendation 11 - email list discussion
And of course I meant recommendation 11 not 7 .... sigh!
Theo, Completely agree, but I am also thinking of those requirements that may be beyond the GDPR's reach. So I don't think the necessity of a "Waiver" situation is a reality that will go away anytime soon.
Alan
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Alan Woods
Senior Compliance & Policy Manager, Donuts Inc.
________________________________
The Victorians,
15-18 Earlsfort Terrace
Dublin 2, County Dublin
Ireland
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On Thu, Jan 24, 2019 at 1:22 PM Theo Geurts <gtheo at xs4all.nl<mailto:gtheo at xs4all.nl>> wrote:
Thanks Alan,
Regarding waivers, I think we need to figure out what their actual use is?
Back in the day, the 95/46 directive was implemented differently across Europe, as such a bit messy.
But this is no longer the case, the data retention directive has been invalidated and the GDPR has replaced the 95/46 directive.
Best,
Theo Geurts CIPP/E
On 24-1-2019 13:50, Alan Woods wrote:
Hey all,
To perhaps make my last email a bit more 'actionable' I wish to put a suggestion as to the potential wording of an updated recommendation. NOTE: it's not an easy task, as the point is that we have not yet been armed with adequate data to create a wholly considered retention period that will allow for ICANN to insist upon a retention period, for certain data elements, for a justifiable and reasonable period of time. therefore the recommendation is a bit "hedging our bets" somehow:
To be clear, due to speed with which we are moving, this is tabled as to kick off the discussion/drafting. I have not run this by even my teammates in the RYSG and I am under no illusions that this is the 'final' text - merely a suggested path.
Recommendation 7
1) The EPDP team recommends that ICANN, as soon as is practicable, undertakes a review of all its active process and procedures so as to identify and document the instances in which personal data is requested from a registrar, outside of the normal retention period of the 'life of the registration'. Identified retention periods, for specific data elements should be then documented and be relied upon to establish, the required relevant and specific, minimum data retention expectations for registrars. this seems to imply that retained data is only used for ICANN compliance purpose, but there may be other purposes for which retained data may be used, such as in cases of law enforcement action, etc. retained pursuant to board’s adopted policy (registrar accreditation policy ) as set forth in document used before to justify data retention.
2) In the interim, the ePDP has recognized that the Transfer Dispute Resolution Policy (“TDRP”) has been identified as one such process. The ePDP team therefore recommends that ICANN should direct registrars to retain only those data elements as deemed necessary for the purposes of the TDRP, for a period of one year following the life of the registration. This retention is grounded on the stated policy stipulation within the TDRP, that claims under the policy may only be raised for a period of 12 months after the alleged breach (FN: see TDRP section 2.2) of the Transfer Policy (FN: see Section 1.15 of TDRP).
3) The ePDP recognizes that Contracted Parties may have needs or requirements for longer retention periods in line with local law or other requirements. The ePDP recommends that nothing in this recommendation, or in separate ICANN mandated policy, should prohibited contracted parties from setting their own limitation periods beyond that which is expected in ICANN policy. Similarly, should local law prevent retention for the period of one year, the ePDP recommends that there are waiver procedures in place that can address such situations.
NOTE: the waiver procedure is a pet peeve of mine. It make no legal sense to me that should a single registry / registrar can prove that a law local or otherwise is incompatible with a retention period, that ICANN then continues, having actual notice of an incompatibility, enforces that retention period against every other contracted party who may be similarly subject to that law, until that party makes a separate and full application for a waiver. I appreciate that ICANN cannot possibly assess jurisdiction of applicability of laws for individual CPs, however the process should not be obtuse as to ignore it;s own precedent. I don't know if it is in our power to do so, however perhaps we should also recommend that any successful waiver application process should provide a reasonable period of time whereby other CPs may 'join' themselves to a waiver upon presentation of sufficient proof of being subject to a particular law or requirement that grounded the original application [a fast track waiver process so to speak].
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Alan Woods
Senior Compliance & Policy Manager, Donuts Inc.
________________________________
The Victorians,
15-18 Earlsfort Terrace
Dublin 2, County Dublin
Ireland
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On Wed, Jan 23, 2019 at 2:53 PM Theo Geurts <gtheo at xs4all.nl<mailto:gtheo at xs4all.nl>> wrote:
Thanks, Alan,
From my point of view, your observations are all accurate including the registrar ones.
And yes you cannot pick a random number for retention. There is a purpose, you balance it, and then you get your period for retention. Your purpose and how you balanced it are part of your documentation to meet the requirement of Art 5.2. Though usually, you cover this process through Art 35.
Theo
On 23-1-2019 15:38, Alan Woods wrote:
Dear all, (noted these are my own musings and my registry colleagues may have additional / different thoughts and comments)
1) Retention period of 1 year
Can we be clear that where data is retained for 1 year, and such an extra retention period is stated as being for use under the TDRP, than retained data may ONLY be used for that purpose (See the RYSG comment). Based upon this recommendation, should a Registrar use the retained data for any other purpose, the will be doing so under their own controllership stem (Hence why the clarification in the NOTE is exceptionally important.)
To be even clearer, ICANN would NOT be able to use the retained data for any other purpose other than the TDRP under the current recommendation. This is the core of what the EDPB have repeatedly told ICANN, you can't just arbitrarily pick a retention period, the retention period just be reasoned and the use of that data must be grounded to that reason. The EDPB will be equally as upset about setting a retention period based on one process,then using data for something wholly unrelated to that process.
Should we persist I see the issue is as follows:
ICANN (Compliance or otherwise) does not hold the data themselves, and this data will be requested from the registrar. This disclosure request will state the reason as X purpose; unless the stated purpose is for in furtherance of the TDRP, a registrar should (read MUST) decline to disclose, as the disclosure is incompatible with the stated reason for retention (i.e. the TDRP)
Only ICANN, have the knowledge of why they require retention for specific processes and procedures. They must provide the base policy reason as to why they require, in the contract, a retention period. The TDRP is a good single example, but it is one single example and ICANN, should then need it for any other reason, must tell the ePDP what, why and for how long the data is necessary.
2) Retention of additional data elements
I would believe the minimal data elements must be retained, and only then related to the specific purpose for the retention.
I do not agree with Trang's assessment of the necessity for billing contacts and in particular the interpretation of "requires a registrar to receive a reasonable assurance of payment prior to activating a domain registration." In this instance the proof of assurance should not, considering data protection, rise to the actual provision of actual billing data but would more functionally refer to, in a normal business sense, assurances that the registrar remains solvent and this does not rise to an ICANN expectation that the registrant ultimately pays (that's the registrar's business) !
Re the other elements noted - I would quickly note the following:
* Billing contacts - I defer to my registrar colleagues friends here but ICANN does not ever bill registrants. Should a registrar fail and registrations are transferred, then the gaining registrar will need to establish contact again and discern should the registrant wish to continue the relationship with the Registrar. I would opine that this is achieved via registrant contact and a private contract between registrar and registrant. Frankly it has nothing to do with ICANN and is none of their data processing business.
* (RAA 3.4.1.5) the name, postal address, e-mail address, and voice telephone number provided by the customer of any privacy service or licensee of any proxy registration service, in each case, offered or made available by Registrar or its Affiliates in connection with each registration.
* Full Contact Information for Privacy Proxy Registrations
For both the above, again I defer to my registrar colleagues, but again, this data is currently completely remote from ICANN's sphere of influence. The registrant makes a private contract with a P&P provider. Such a contract will have stipulations in the event of a failure of the P&P provider. Use of such providers is at the risk of the registrant, and ICANN cannot interfere here. IF a P&P gets sunk, the registrant will need to deal with their choice and claim relief under their contract etc. - it may be messy but ICANN cannot claim to have a right to this underlying data, as their influence extends to only the data of the registrant (which in this instance will be presented as the P&P holder). ICANN may claim further power via appropriate policy development perhaps but regardless, surely this is a matter for the PPSAI.
* Full Contact Information for Registrants who have Consented to Full Display - This is a matter for an assessment of what data is needed for the reason basing the retention. i.e. what data is need currently for performance of the TDRP - nothing else. Again ICANN should identify and justify the data elements necessary for this. The ePDP cannot be expected to do this for ICANN.
* (Data Retention Specification 1.1.7.) Types of domain name services purchased for use in connection with the Registration
* (Data Retention Specification 1.1.8.) To the extent collected by Registrar, "card on file," current period third party transaction number, or other recurring payment data.
* (Data Retention Specification 1.2.1) Information regarding the means and source of payment reasonably necessary for the Registrar to process the Registration transaction, or a transaction number provided by a third party payment processor;
* (Data Retention Specification 1.2.2) Log files, billing records and, to the extent collection and maintenance of such records is commercially practicable or consistent with industry-wide generally accepted standard practices within the industries in which Registrar operates, other records containing communications source and destination information, including, depending on the method of transmission and without limitation: (1) Source IP address, HTTP headers, (2) the telephone, text, or fax number; and (3) email address, Skype handle, or instant messaging identifier, associated with communications between Registrar and the registrant about the Registration; and
* (Data Retention Specification 1.2.3 ) Log files and, to the extent collection and maintenance of such records is commercially practicable or consistent with industry-wide generally accepted standard practices within the industries in which Registrar operates, other records associated with the Registration containing dates, times, and time zones of communications and sessions, including initial registration.
I'm minded to wholly defer this particular ... issue... to our registrar colleagues. But to the Casual observer none of this data is in ICANN's remit to retain. This is all part of the private contract with the registrant and registrar and ICANN has no legal claim, basis or expectation to this data. If ICANN believes that they have a right to this data, then it is for them to assert it and justify why they need to mandate something as the harvesting and retention to data wholly unrelated to the registration of a domain name. Let us provide a simple example If a registrant doesn't pay the registrar for a domain (declined card or other), ICANN will still likely get paid because that is the contract they have with the CPs; the registry will still get paid as that is the contract with the registrar. Neither registry or registrar may, nor should go after the registrant for such a payment, as we have no right to do so as that is not the intended legal nature of our relationship. Therefore why would ICANN have a right to the information regarding cards on file or client communications?
* (RAA 3.4.2.1) the submission date and time, and the content, of all registration data (including updates) submitted in electronic form to the Registry Operator(s);
* (RAA 3.4.2.2) all written communications constituting registration applications, confirmations, modifications, or terminations and related correspondence with Registered Name Holders, including registration contracts;
* (RAA 3.4.2.3) records of the accounts of all Registered Name Holders with Registrar.
These are all data that ICANN could possibly mandate. But that being said, this all seems aimed at litigation. These are elements that a Registrar, in its sole controllership as a business, would be crazy not to retain for the purposes of litigation impending or actual etc. Regardless, in truth I can't see how ICANN would EVER have such data disclosed to them unless by court order or equivalent where there is a dispute between Rr and ICANN.
I think we need to be clear as to necessity here and IMHO, a lot of these elements are simply overreach.
Kind regards,
Alan
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Alan Woods
Senior Compliance & Policy Manager, Donuts Inc.
________________________________
The Victorians,
15-18 Earlsfort Terrace
Dublin 2, County Dublin
Ireland
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On Tue, Jan 22, 2019 at 11:43 PM Trang Nguyen <trang.nguyen at icann.org<mailto:trang.nguyen at icann.org>> wrote:
Dear All,
Regarding data retention, ICANN org has previously identified a question and some areas that we wanted to flag for the EPDP Team, which we sent to the mailing list on 22 December 2018 (https://mm.icann.org/pipermail/gnso-epdp-team/2018-December/001125.html). We are flagging them here again for the EPDP Team’s consideration/discussion as you work to finalize the recommendation.
The question/flags are:
1. There are several data elements that are currently required to be retained, but are not addressed in the Initial Report. Should the retention obligation for these data elements remain or be discontinued?
2. If billing and payment-related data is no longer required to be collected, retained, and (with respect to billing contact data) escrowed, this could impact continuity of service to registrants and availability of this data in the event of a payment dispute or related investigation. ICANN org also notes that the ICANN Registrar Accreditation Policy <https://www.icann.org/resources/pages/policy-statement-2012-02-25-en [icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_policy-2Dstatement-2D2012-2D02-2D25-2Den&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=NghSLFqweTwAOFMJpbYA3LcVJ0Vvvw6-wxrKoS5l6VY&m=gyM0LQPvqlS_44QFFd7EFD_OYLhfc-A353B_HKq7Bok&s=gSciXDCLwToip-KVqvqL5A4Yuch4VO2F0ALwpUeM0i8&e=>> requires a registrar to receive a reasonable assurance of payment prior to activating a domain registration.
Data elements currently required to be collected, but are not addressed in the Initial Report include:
* Billing/Other Contact ID (where available)
* Billing/Other Contact Name (where available)
* Billing/Other Contact Street (where available)
* Billing/Other Contact City (where available)
* Billing/Other Contact State/Province (where available)
* Billing/Other Contact Postal Code (where available)
* Billing/Other Contact Country (where available)
* Billing/Other Contact Email (where available)
* Billing/Other Contact Phone (where available)
* Billing/Other Contact Fax (where available)
* (RAA 3.4.1.5) the name, postal address, e-mail address, and voice telephone number provided by the customer of any privacy service or licensee of any proxy registration service, in each case, offered or made available by Registrar or its Affiliates in connection with each registration.
* Full Contact Information for Privacy Proxy Registrations
* Full Contact Information for Registrants who have Consented to Full Display
* (Data Retention Specification 1.1.7.) Types of domain name services purchased for use in connection with the Registration
* (Data Retention Specification 1.1.8.) To the extent collected by Registrar, "card on file," current period third party transaction number, or other recurring payment data.
* (Data Retention Specification 1.2.1) Information regarding the means and source of payment reasonably necessary for the Registrar to process the Registration transaction, or a transaction number provided by a third party payment processor;
* (Data Retention Specification 1.2.2) Log files, billing records and, to the extent collection and maintenance of such records is commercially practicable or consistent with industry-wide generally accepted standard practices within the industries in which Registrar operates, other records containing communications source and destination information, including, depending on the method of transmission and without limitation: (1) Source IP address, HTTP headers, (2) the telephone, text, or fax number; and (3) email address, Skype handle, or instant messaging identifier, associated with communications between Registrar and the registrant about the Registration; and
* (Data Retention Specification 1.2.3 ) Log files and, to the extent collection and maintenance of such records is commercially practicable or consistent with industry-wide generally accepted standard practices within the industries in which Registrar operates, other records associated with the Registration containing dates, times, and time zones of communications and sessions, including initial registration.
* (RAA 3.4.2.1) the submission date and time, and the content, of all registration data (including updates) submitted in electronic form to the Registry Operator(s);
* (RAA 3.4.2.2) all written communications constituting registration applications, confirmations, modifications, or terminations and related correspondence with Registered Name Holders, including registration contracts;
* (RAA 3.4.2.3) records of the accounts of all Registered Name Holders with Registrar.
Best,
Dan and Trang
ICANN Org Liaisons
From: Gnso-epdp-team <gnso-epdp-team-bounces at icann.org<mailto:gnso-epdp-team-bounces at icann.org>> on behalf of Kurt Pritz <kurt at kjpritz.com<mailto:kurt at kjpritz.com>>
Date: Tuesday, January 22, 2019 at 1:20 PM
To: EPDP <gnso-epdp-team at icann.org<mailto:gnso-epdp-team at icann.org>>
Subject: [Gnso-epdp-team] EPDP Recommendation 11 - email list discussion
Hi Everyone:
There were several items (Recommendations) that we agreed to discuss via email with the idea that we could close on them without taking time for discussion in a meeting. This email concerns Recommendation 11, addressing the data retention period.
The current recommendation states:
The EPDP Team recommends that Registrars are required to retain the herein-specified data elements for a period of one year following the life of the registration. This retention period conforms to the specific statute of limitations within the Transfer Dispute Resolution Policy (“TDRP”).
Small Team Discussion
(1) The small team noted that “statute of limitation” as used in the Recommendation was probably an inappropriate use of a legal term of art and should be replaced with more appropriate language. This point is addressed in the proposed updated Recommendation below.
(2) Some on the small team advocated for a longer retention period, suggesting that a longer retention period could be anchored in existing ICANN policy requirements or other outside requirements. (The current retention period is anchored is the Transfer DRP as the “tall pole” among all the other purposes for processing registration data.) The updated language below, proposed by small team B, clarifies that the proposed data retention period is for ICANN related requirements and different retention periods may apply as a result of local requirements or circumstances.
Proposed updated language recommendation 11 – data retention
The EPDP Team recommends that: Registrars are required to retain the herein-specified data elements for ICANN-related requirements for a period of one year following the life of registration. This minimum retention period is consistent the requirements of the Transfer Dispute Resolution Procedure, which has the longest retention requirement of any of the enumerated Purposes for Processing Registration Data.
Note, Contracted Parties may have needs or requirements for longer retention periods in line with local law or other requirements. This is not prohibited by this language. Similarly, should local law prevent retention for the period of one year, there are waiver procedures in place that can address such situations.
Actions
Those supporting a retention greater than one year generally should submit rationale for such a retention period including related ICANN policy requirements to which this could be anchored. These submissions will be discussed via email.
Submit comments for support for the amended Recommendation or requesting edits to the recommendation with rationale.
Deadline: Friday, 24 January, additional email discussion might follow depending on responses.
Thank you and best regards,
Kurt
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