[Gnso-epdp-team] BC Comments on the Legal Analysis

[Margie Milam]

Hi –
In advance of tomorrow’s call, here are comments and questions submitted on behalf of the BC:

Possible Legal Bases for Processing.  Our comments on the legal bases topic have been  influenced by both the 6(1)(f) memo and the recent EC communication, so we’ve broken our clarifying questions into 2 groupings, one for 6(1)(b) and one for 6(1)(e).

  *   Performance of Contract – B&B should revisit its analysis in light of the recent EC Letter where it notes:
“As explained in our comments, Art. 6(1)f GDPR (legitimate interest) is one of the six possible legal bases provided under Art. 6(1) GDPR. For instance, disclosure of nonpublic gTLD registration data could be necessary for compliance with a legal obligation to which the contracted parties are subject (see Art. 6(1)c GDPR).”
This is consistent with the B&B memo that recognizes that a direct contract with the data subject is not necessary.

     *   To identify 6(1)(b) as purpose for processing registration data, we should follow up on the B & B advice that-
“it will be necessary to require that the specific third party or at least the processing by the third party is, at least abstractly, already known to the data subject at the time the contract is concluded and that the controller, as the contractual partner, informs the data subject of this prior to the transfer to the third party”

     *   B&B should clarify why it believes that the only basis for providing WHOIS is for the prevention of DNS abuse.  Its conclusion in Paragraph 10 does not consider the other purposes identified by the EPDP in Rec 1, and, in any event should consider the recent EC recognition that ICANN has a broad purpose to:

‘contribute to the maintenance of the security, stability, and resiliency of the Domain Name System in accordance with ICANN's mission’, which is at the core of the role of ICANN as the “guardian” of the Domain Name System.”

  *   WHOIS in the Public Interest - Similarly, B&B should advise on the extent to which GDPR’s public interest basis 6(1)e is applicable, in light of the EC’s recognition that:
“With regard to the formulation of purpose two, the European Commission acknowledges ICANN’s central role and responsibility for ensuring the security, stability and resilience of the Internet Domain Name System and that in doing so it acts in the public interest.”

Natural-Legal:

     *   The EDPD should explore with B&B the possible ways of protecting against an erroneous identification as a legal person.  The policy recommendations could point to different practices that exist today (relying on the CCTLD research referenced in the EPDP Phase 1 report) that could enable the natural/legal person distinction to be made.   For example, the EPDP could propose a verification component, based on a number of indicators that can determine whether the registrant is a  legal entity.
     *   Has B&B considered how the natural/legal person distinction is handled by ccTLDs?
     *   With regard to concerns about emails possibly containing personal info – has B & B considered whether the risk could be mitigated if the registrant is asked if the email is  “role based” or identifies an actual individual?
Accuracy:  Has B&B reviewed the statistics from the WHOIS ARS on accuracy levels or the findings of the 1st and 2nd WHOIS RT with regard to accuracy?  This should factor into the summary conclusions in Paragraph 21.
Thick WHOIS:  Did B&B review the GNSO’s Final Report and analysis in support of the Thick WHOIS policy recommendations?  Specifically, the consensus policy was based on recognized benefits to the Internet Ecosystem of having Thick WHOIS.  For example, under the Thick WHOIS policy, the registry is the authoritative place for domain name registration records.

Mark and I look forward to discussing these issues in more detail tomorrow.

All the best,
Margie and Mark


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