[Gnso-epdp-team] [EXTERNAL] Re: Latest version of Automated Use Cases document

Volker Greimann vgreimann at key-systems.net
Wed Feb 5 10:34:29 UTC 2020


Hi,

I think the disconnect is on the nature of the recommendation. You seem 
to favor a strong recommendation with near binding power whereas we see 
it as a more or a shopping cart style ("people who liked this also liked 
that") recommendation with no binding power or strong indication 
whatsoever. A helpful guide, but nothing more.

Best,

Volker

Am 05.02.2020 um 01:49 schrieb Mark Svancarek (CELA) via Gnso-epdp-team:
>
> <resending with ambiguous phrasing corrected>
>
> Hi Alan, my comments are inline below.  Perhaps we are closer than you 
> think.
>
> Note that the Gateway plays a more authoritative role in this version 
> because that’s how I perceived the feedback received over the last few 
> days – it seemed there was an expectation that the Gateway would be 
> making very strong recommendations for certain use cases and CPs might 
> be inclined to automatically accept them, to the extent that the 
> Gateway could be considered an authorizer for such use cases. If I 
> misjudged that, it’s easily remedied by only a few edits to the document.
>
> *From:* Alan Woods <alan at donuts.email>
> *Sent:* Tuesday, February 4, 2020 3:13 AM
> *To:* Mark Svancarek (CELA) <marksv at microsoft.com>
> *Cc:* gnso-epdp-team at icann.org
> *Subject:* [EXTERNAL] Re: [Gnso-epdp-team] Latest version of Automated 
> Use Cases document
>
> Mark,
>
> Thanks for completing this. Noting we did discuss this, alas I must 
> note that this new document does not reflect my impression of the 
> discussion that we had:
>
>  1. I recall we discussed that the decision for disclosure would be at
>     the option of the controller, who on the basis of the data and
>     risk profile before them, can initiate the automated response.
>     This assumption was acceptable to me. This resultant document does
>     not even contemplate this. I particularly note an expanded creep
>     back into 'required' automated disclosure. This is not agreed, was
>     not discussed, and should not be included in our interim report.
>
> */[Mark Svancarek] &$!#^!  Please replace “/*make a decision to 
> require*/” in Assumption VII /**/à “/*make a decision to request*/”.  
> I can see how that Assumption would have colored your reading of the 
> rest of the document./*
>
>  2. The assumptions in this document assumes that the Gateway /
>     authorization body will have the data to make the decision -
>     although you note in VII that that singular assumption may modify
>     the relationships, for the record this does actually completely
>     depart from the swimlane model as presented.
>
> */[Mark Svancarek] Correct/*
>
> The model represented now effectively tries to avoid the central body 
> actually processing of registration data (gateway/ Auth).
>
> */[Mark Svancarek] Clarifying, is “model represented now” the model in 
> the current draft report?/*
>
> Your assumptions are forcing that body into a decision making 
> controllership role (automated is still a decision).
>
> */[Mark Svancarek] None of these use cases, as far as I can tell, 
> require inspection of any personal data at the Gateway; none of these 
> use cases require the Gateway to become a controller of non-public 
> registrant data. That was a deliberate consideration on my part. VII 
> is a caveat for completeness.  Perhaps this would be more clear if the 
> order of VII and VIII were reversed, or if VII were simply deleted./*
>
> Adhering to the swimlane as presented, the decision and the automation 
> will still occur at the CP at their discretion - and imposition is not 
> envisaged. (allowing a factual apportionment of a 'processor' role 
> under a JCA).
>
> */[Mark Svancarek] As is usual for us, the term “automation” is being 
> overloaded.  I was tempted to add a section to the document to clarify 
> this, so perhaps it was a miss that I did not do so.  The very act of 
> generating a recommendation at the Gateway is automation and that’s 
> one of the things being discussed here. Specific types of automation 
> will occur at a CP, but “Automation” as a concept is not limited to 
> the CP./*
>
>  3. The additional mix of the 'recommendation' concept into nudging
>     towards automation is new. It is also unhelpful. Calling a spade a
>     spade, a "recommendation and feedback" imposition on the decision
>     maker is flipping the actual requirement here. The controller may
>     tell the central body that certain decisions can be automated (as
>     we discussed)- not vice versa (notwithstanding that this is only
>     possible where the central body has the data, which is again not
>     currently envisaged in the swimlane model).
>
> */[Mark Svancarek] I don’t think the controller needs to inform the 
> Gateway what it can automate in advance, but it should provide 
> feedback if a recommendation for automation can’t be supported. Note 
> that the Gateway could have all sorts of data potentially valuable to 
> a disclosure decision, just not the non-public data of the record 
> being requested.  The assignment of flags is a way of codifying those 
> data to enable automation./*
>
> To confirm the central body, acting in the factual guise of a 
> processor, must act solely on the instructions of the controller in 
> 'permitted' instances. To reverse this assumption i.e. to have the 
> processor continually recommend chipping away at the clear and sole 
> instructions of the controller is anathema to the spirit of article 28 
> and will draw the ire of privacy by default; disclosures on a sliding 
> scale of automated 'recommendations', based on observed and solely 
> empirical data from decisions; (assuming we are not commissioning an 
> AI who can understand the nuance of a balancing test), then observed 
> repetition of decisions does not a rule make; errors in judgment may 
> occur, and repetition of that error does not make it less of an error.
>
> */[Mark Svancarek] I don’t think I disagree with this./*
>
>  4. /"A requestor can selectively assert whether data specific
>     disclosed in response to a particular request will be used in a
>     way that has legal or similarly significant effects on the data
>     subjects."/ - this is a controller's job not the requester. Plus,
>     objectively speaking, we cannot build an inherent bias in the
>     requestor's request. All requesters (one assumes) have a
>     subjective goal to achieve; surely they are not going to play up
>     the impact, where they know that the greater impact, the more
>     important such an impact plays in the balance. I understand the
>     suggestion is well meaning, and a controller will certainly take
>     any such an assertion into account - but let's be clear that the
>     assertion of the requester is a single factor of the
>     consideration, and should never be determinative.
>
> */[Mark Svancarek] We require requestors to make many assertions, upon 
> risk of disaccreditation/*. */This just adds another. I think you are 
> perhaps missing the point of it – a requestor can only use it if they 
> are literally planning not to use the data in a way that has legal or 
> similarly significant effects; it’s not meant to be affixed to every 
> request regardless of type or purpose.  Based on feedback I have 
> received, I think this is will be quite useful when automating certain 
> types of requests.  That’s true even though it’s non-determinative. /*
>
> As Volker noted, and as I discussed with you, most of these instances 
> still require human interaction, which is within the sole purview of 
> the controller. I agreed that some of the examples noted may be 
> automated (e.g. in jurisdiction request of a LEA or equivalent - i.e. 
> where the controller will process under 6(1)c or equivalent. I also 
> agree that there are instances where the controller wishes to 
> voluntarily assume risk, and takes measures to automate themselves 
> (adhering to the swimlane) - that does not mean that these 'use cases' 
> support automation for all, merely that they support a concept of 
> 'automation at risk' to the controller. Such a heightened risk profile 
> cannot be imposed on other controllers not so inclined or advised.
>
> */[Mark Svancarek] I do not disagree.  I only hope that these examples 
> will be seen as low-hanging opportunities for streamlining process, as 
> described in Assumption V./*
>
> I also note that Brian King's separate missives seem to suggest that 
> this is to be included in the interim report. Again this was not the 
> understanding from our conversations. We had discussed that this was 
> reference material for the benefit of discussion, and not part of our 
> report. I do not support its inclusion in the report at this point; it 
> has not been properly discussed and does not align with the actual 
> understanding of the model as described. I also doubt that this will 
> garner such required discussion in the few days we have prior to 
> publication.
>
> */[Mark Svancarek] Yes, this is very late./*
>
> Warm regards,
>
> Alan
>
> Donuts Inc. 
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> 	
>
> *Alan Woods***
>
> Senior Compliance & Policy Manager, Donuts Inc.
>
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> On Tue, Feb 4, 2020 at 3:39 AM Mark Svancarek (CELA) via 
> Gnso-epdp-team <gnso-epdp-team at icann.org 
> <mailto:gnso-epdp-team at icann.org>> wrote:
>
>     Thanks you all for your patience waiting for this, and thanks to
>     everyone who sent me feedback both privately and on-list. 
>     Hopefully I have incorporated all the feedback*
>
>     I’ve consolidated various use cases and assumptions. Apologies in
>     advance because this resulted in renumbering from the previous
>     version.
>
>     /marksv
>
>     *except for the Trademark use case, where the feedback was
>     inconsistent.  We’ll have fun with that one.
>
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-- 
Volker A. Greimann
General Counsel and Policy Manager
*KEY-SYSTEMS GMBH*

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