[Gnso-epdp-team] Proposed letter from EPDP to ICANN board

Thu Oct 3 20:41:32 UTC 2019

All,

Pursuant to action item #8 from the LA face-to-face meeting (see below), the Contracted party team members drafted the attached letter to the ICANN Board.  The goal as stated in the letter is to seek input from the Board on the scope of operational responsibility and level of liability (related to decision-making on disclosure of non-public registration data) they are willing to accept on behalf of the ICANN organization along with any prerequisites that may need to be met in order to do so.

Best,

Marc

From: Gnso-epdp-team <gnso-epdp-team-bounces at icann.org> On Behalf Of Caitlin Tubergen
Sent: Thursday, September 12, 2019 8:39 PM
To: gnso-epdp-team at icann.org
Subject: [EXTERNAL] [Gnso-epdp-team] High-level notes and action items - EPDP Team F2F - 9-11 September

Dear EPDP Team:

Below, please find high-level notes and action items from the face-to-face meeting.

As a reminder, the next EPDP Phase 2 meeting will be Thursday, 19 September at 14:00 UTC. The Legal Committee will meet on Tuesday, 17 September at 14:00 UTC.

Wishing everyone safe travels home.

Best regards,

Marika, Berry, and Caitlin

--

Action Items

1.      Alex Deacon, Milton Mueller and other willing volunteers to draft a write up of a potential accreditation model, taking into account the Team’s F2F discussions, in advance of the Thursday, 19 September meeting.
2.      IPC, BC, SSAC, and GAC reps to separately draft a vision for their “ideal accreditation model” in order to assist the group with what the baseline accreditation requirements could be as well as the attendant benefits of accreditation within the architecture of an SSAD by Wednesday, September 18.
3.      Support Staff to create a table (in the form of a Google Doc) which includes a column for each lawful basis and a column for what a requesting party would be required to provide in its request, what is the expected response time, is automation likely, what are the standardized categories that may fall within that lawful basis, etc.  Following receipt of the table, the EPDP Team members to populate the contents of the table. If there are commonalities, policy recommendations can be drafted accordingly.
4.      Support staff to create a Google Doc in which EPDP Team Members are to review and consider the types of disclosure decision models (in other words, who is making the ultimate determination to disclose non-public registration data - contracted party or ICANN) and what would make these options acceptable to the different groups by Thursday, September 19.
5.      EPDP Team to review the legal memos and come back with the most relevant points that need to be factored in as the Staff Support Team produces the 1.0 draft by Thursday, September 19.
6.      James and Mark Sv. to work together on a revised proposal for Building Block L (SSAD query policy) by Thursday, September 19. When discussing updates to Building Block L, Team members to consider if it is within the Team’s charter to continue discussing this issue.
7.      Matt C. to review the legal advice on how to perform the balancing test and update Alan Woods’ initial balancing test document into a simple guide to conduct the balancing test to be included in the next iteration of the zero draft by Thursday, September 19.
8.      Contracted party Team members to draft letter to ICANN Board, outlining scenarios discussed, including where the disclosure decision lies within the SSAD, and inquire whether there are any options the Board would not be amenable to.

High-level Notes

ACCREDITATION–Building Block F

Straw Proposals Presented prior to Discussion: Milton Mueller and Alex Deacon

Outcome / Agreements

*       EPDP Team did not agree on accreditation process or assignments; however, it agreed that a small group would consider the Team’s discussion during the F2F and develop a proposal for a subsequent discussion.
*       The EPDP Team agreed to separate authentication from authorization. The team did not agree that the accreditor would perform the authorization function.

Discussion Notes

Purpose

••••••••• Remove burden from entity providing disclosure

••••••••• Provide code of contract or series of contracts

••••••••• Spread liability (without diminishing protections for data subjects)

••••••••• Provide process pathway to track data / monitoring

Who serves as accreditor

••••••••• Entity develops request or proposal

••••••••• Competent authority with legal basis; demonstrates consistency with Article 42 and 43

••••••••• EPDP sets outline and principles and assessment activities

Accreditor

Tasks

Authentication – confirm identity

Establish preliminary determination on lawful basis

Consider how to manage volume requests

NOTE: Authorization process is not necessarily with the accreditor. Sub-team will consider whether Authorization should rest with another entity or with the accreditor or unique criteria

Role: Certifying Accreditor

No Agreement, options discussed:

••••••••• ICANN – difficult because they process of data

••••••••• Independent Data Trust

••••••••• DPA

Role: Accreditation Body(ies)

••••••••• WIPO

••••••••• Law enforcement–each country would have one entry point. i.e. in U.S. it might be FBI or in other countries, it would be the national country.

••••••••• Europol and Interpol–agree this is not possible for law enforcement agencies, at least not for certain countries

••••••••• Limit # of accrediting bodies to be able to manage system

••••••••• Create track for entities that are not accredited

Role: Auditor

Agree that auditing is needed; unclear who should conduct audits

Role & Process: De-Accreditation

EPDP agrees that de-accreditation should be a component

Accreditor must be compliant with DPAs

Need to establish how to do this, such as:

••••••••• Safeguards, prevent entity from setting up shop next door

••••••••• Remedial action, i.e. may not shut down immediately, some corrective action is possible

Decision to Disclose

Joint Controller

Who Balances?

Entity with Legal Basis

Options: Who Decides?

{Note: EPDP did not decide on preferred option in LA. Group will consider options and potentially write a letter to Board to frame questions}

JC Agreement

•• Responsibilities identified in agreement; CPs cannot increase their risk

•• Must be correct to manage liability / risk

•• Liability is clearly defined (ICANN or CPs)

•• Establish Joint and Severable Liability

Contracted Parties

ICANN

Independent Data Trust

PROS/CONS

+ Most accountable to data subject

+ Has physical access to data

- Lack of consistency with hundreds of CPs applying policy to make decision to disclose

- ICANN unable to indemnify CPs (maybe, shared risk possible)

+ Bird & Bird Memo states that CPs are controllers and retain liabilities

PROS/CONS

+ Reduce risk of liability to CPs

+ Provides consistency

+ One party that performs decision and auditing role might be preferable

+ Build body of work / decisions consistently

Considerations for all Options

Standardized clearing house

Timely Response

Insurance to alleviate risk or establishing risk fund may be possible

ICANN sets rules so it has to be a joint controller

SSAD

Not required by law

Goal = predictable

Easier

Building Block N, Financial Sustainability

Outcome: Staff to develop Draft 1.0 with implementation guidelines consistent with the F2F discussion.

Note: The EPDP noted the need to make SSAD Determination and consider cost-benefit analysis before finalizing approach to financial sustainability.

Set Up

Cost of Providing and Making Available an Investigative Tool

Cost Sharing

Share cost across the system

Direct and indirect beneficiaries

Share costs across the system

CPs contribute intangible resources via in-house staff, etc.

Use

Look at other Models

ANTICIPATED BENEFITS: Certainty to Process  Cost Savings

FLIP CHARTS

Each stakeholder group contributed principles / ideas to ignite the conversation.

SSAC

All participants have costs:

*       Central system = ICANN
*       CPs: receive, review, reply
*       Requestors: accreditation, query-making

Issue subsidies? Letting market work

RDS as basic service / core service

Passing costs to requestors: May burden victims.

GAC

1.      Any financing model should not be profit/revenue generating
2.      System should not provide financial disincentives to requestors acting on behalf of public authorities

CPH

1.      Any financial model should not be profit/revenue generating
2.      Cost Neutral and borne by beneficiaries
3.      Not a hidden tax / pass through charge to registrants / data subject
4.      Integration costs represent CPH contributions

ALAC

Consider:

••••••••• Costs

••••••••• Cost Savings

••••••••• Accreditation costs borne by users

••••••••• Charge / Requestor: consideration of public interest exception

••••••••• Chares passed through to registrants seems inevitable (it’s part of the infrastructure)

NCSG

Costs [potential funder]

1.      Capital / set up costs [Large Users]
2.      Accreditation costs [Flat fee per time period]
3.      Usage costs (per request) [per request fee, cost-based. Higher for non-accredited]
4.      Insurance costs [unsure]
5.      Audit / enforcements [unsure, ICANN / DPAs?]

CSG

OK for cost-sharing to vary by volume, requestor type, legal obligation, etc.

Fees on per-request basis are problematic

Must not create disincentives to costs reductions

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