[Gnso-epdp-team] ICANN Meets with Belgian Data Protection Authority

Sun Feb 23 11:31:05 UTC 2020

Hi,

There is more than one type of review involved in decisions to disclose registration data to a third-party. The review Franck refers to reads to me like a review that takes place as part of the audit function after disclosure has been granted. That is clearly not what Milton was referring to at all.

As several members of this Team have repeatedly pointed out, in cases where the legal basis for disclosure is GDPR Article 6.1.f, a balancing test needs to be conducted in order to ensure that the legitimate interests of the third party or the data Controller are not outweighed by the personal rights and freedoms of the data subject/registrant. We seem to be ignoring this legal obligation, or are proceeding to work on policy recommendations allowing automation of decisions to disclose registration data with the hope/expectation that we will receive some kind of legal advice that effectively says, “sure, there’s a legal obligation to conduct a balancing test, but here’s a loophole ICANN can exploit in favor of third-party interests over those of the data subjects’, which will protect ICANN and Contracted Parties from liability”.

This has unfortunately been the general theme of our work since Phase 2 began; how to chip away, piece by piece, as many rights afforded by law to data subjects to further the interests of disclosure requestors. If after all these months, the NCSG’s discomfort with this is still insufficiently clear, we are happy to explain them as many times as it takes to change that.

So when Milton said “any accredited user to get personal data without reviews”, this was a pretty well-grounded assertion. Sure, reviews will be done after-the-fact during audits, but no meaningful balancing test (review) will be conducted as part of the process to decide wether to grant disclosure, or not. This will effectively result in requests for disclosure by accredited SSAD users to always be granted, assuming they tick all the right pre-populated boxes in the request…, which is basically what Milton said.

Thanks.

Amr

> On Feb 21, 2020, at 12:49 AM, Journoud, Franck <Franck_Journoud at motionpictures.org> wrote:
>
> Milton, I do agree that it’s not sufficiently clear what is meant by “centralization” in the blog post.
>
> However, I think your assertion that centralization and automation allow “any accredited user to get personal data without reviews” is not well grounded:
>
> - centralization would make oversight of decision-making infinitely easier and thus more effective than ICANN Compliance having to chase thousands of CPs;
>
> - automation would provide an authoritative and detailed view of each decision and of the criteria used: what are the algorithm’s inputs, how are they weighted/organized, what’s the decision-tree, etc.;
>
> - it’s not “any accredited user” who would get access, but only those who (in themselves and in their requests) satisfy all the elements of the policy;
>
> - so in summary we’re talking about more and better, not fewer and worse, reviews.
>
> One thing is for sure: these divergent interpretations of a short blog post only reinforce in my mind the need for a fuller and more detailed account of the meeting!
>
> -Franck
>
> Franck Journoud | VP, Tech Policy | MPA | E franck_journoud at motionpictures.org | O (202) 378-9127 | M (202) 285-7322
>
> From: Gnso-epdp-team <gnso-epdp-team-bounces at icann.org> On Behalf Of Mueller, Milton L
> Sent: Thursday, February 20, 2020 4:48 PM
> To: gnso-epdp-team at icann.org
> Subject: Re: [Gnso-epdp-team] ICANN Meets with Belgian Data Protection Authority
>
> WARNING – External Sender
>
> ---------------------------------------------------------------
>
> Colleagues:
>
> I really have to push back against Hadia’s interpretation of the ICANN blog post, and the blog post itself.
>
> As others pointed out, the blog’s claim that “a centralized model” is better for security is just the writer’s opinion. The claim is seriously undermined by the fact that we do not know whether they were talking about centralization of requests, or centralization of disclosure, or both. In this respect, the discussion within EPDP, which makes a clear distinction between request and disclosure centralization, is a far more advanced than ICANN’s old UAM concept. So merely on the basis of its ambiguity, this alleged principle is meaningless. And from a cybersecurity standpoint, it should be obvious that centralization/automation of disclosure is very bad for the privacy of the data subject, because it allows any accredited user to get private data without any reviews. I have a hard time believing that any DPA would sanction something like that if they were presented with a clear explanation of it.
>
> As for the second alleged principle, it is a worthless tautology. In essence, it says: Automated decision making is allowed under GDPR as long as the GDPR allows it. Well, thank you very much.
>
> The problem is that automated disclosure decisions does not permit one to see whether the request actually conforms to the criteria that would authorize disclosure. Automation thus massively increases the risk that disclosures that are not compliant will be made.
>
> This whole episode is just another demonstration of why ICANN org’s insistence on mediating between us and the DPAs is unhelpful; I wish they would stop. No issue we face has been clarified; no part of our work has been advanced by this exchange. We just debate different interpretations of these meetings based on different policy preferences. Worst of all, we do not know how ICANN org presents issues to the DPAs in these private meetings.
>
> Can we call a moratorium on these unwanted and unneeded parallel interventions?
>
> And if not, can we at least teach Goran and his staff to say “SSAD” instead of “UAM,” so that we are sure we are talking about the same thing? It’s only one more letter, it shouldn’t be hard.
>
> Dr. Milton L Mueller
>
> School of Public Policy
>
> Georgia Institute of Technology
>
> <image001.jpg>
>
> From: Gnso-epdp-team <gnso-epdp-team-bounces at icann.org> On Behalf Of Hadia Abdelsalam Mokhtar EL miniawi
> Sent: Thursday, February 20, 2020 11:00 AM
> To: Journoud, Franck <Franck_Journoud at motionpictures.org>; Johan Helsingius <julf at julf.com>; gnso-epdp-team at icann.org
> Subject: Re: [Gnso-epdp-team] ICANN Meets with Belgian Data Protection Authority
>
> Dear All,
>
> As I have said on the call today I also found the blog useful, it highlighted two main principles. First, a centralized model is better in terms of security and in relation to the data subjects and second, an algorithm that automates decision making is allowed under GDPR as long as it can demonstrate the decision was taken in accordance with the criteria set by GDPR. We keep thinking about the liability, but given the limited time we have, we need to focus on having a workable, efficient system that is compliant with GDPR.
>
> Best
>
> Hadia
>
> From: Gnso-epdp-team [mailto:gnso-epdp-team-bounces at icann.org] On Behalf Of Journoud, Franck
> Sent: Thursday, February 20, 2020 4:55 PM
> To: Johan Helsingius; gnso-epdp-team at icann.org
> Subject: Re: [Gnso-epdp-team] ICANN Meets with Belgian Data Protection Authority
>
> Dear Janis, ICANN org liaisons and EC EPDP members,
>
> I'd like to reiterate the point that I made on the EPDP call today. I have found the blog post very helpful and sincerely thank Göran for writing it - and yet it is insufficient. I appreciate that this was a meeting rather than formal legal guidance, but it'd still be helpful if all 'our' attendees (ICANN org staff, Janis, EC) could pool their notes and analysis to produce as detailed as possible an account of what the Belgian DPA reps said. This should be followed by these attendees attending an EPDP call so that we can ask follow-up questions. Surely we can get more our of that extremely important interaction than informative and useful, but short couple of substantive paragraphs.
>
> -Franck
>
> Franck Journoud | VP, Tech Policy | MPA | E franck_journoud at motionpictures.org | O (202) 378-9127 | M (202) 285-7322
>
> -----Original Message-----
> From: Gnso-epdp-team <gnso-epdp-team-bounces at icann.org> On Behalf Of Johan Helsingius
> Sent: Wednesday, February 19, 2020 4:49 PM
> To: gnso-epdp-team at icann.org
> Subject: [Gnso-epdp-team] ICANN Meets with Belgian Data Protection Authority
>
> WARNING - External Sender
>
> https://www.icann.org/news/blog/icann-meets-with-belgian-data-protection-authority
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