[Gnso-epdp-team] Notes and action items from EPDP Meeting #41 - 23 Jan 2020

Caitlin Tubergen caitlin.tubergen at icann.org
Fri Jan 24 00:04:47 UTC 2020

Dear EPDP Team,


Please find below the notes and action items from today’s EPDP Team Meeting.


For all those attending: safe travels to the F2F meeting, and see you soon!


Best regards,


Marika, Berry, and Caitlin




Action Items


1. EPDP Support Staff to send Legal Q2, which has been approved by the plenary team, to B&B for its review.

2. EPDP Team to review the GAC proposal on accreditation of public authorities in advance of the F2F meeting.

3. EPDP Leadership and Support Staff to consider today's discussion and prepare an agenda for the F2F meeting to be distributed on Sunday, 26 January.

4. EPDP Team to submit additional feedback on today's discussion and the EPDP Leadership-proposed chameleon model by 14:00 UTC on Sunday, 26 January.


EPDP Phase 2 - Meeting #41

Proposed Agenda

Thursday, 23 January 2020 at 14.00 UTC


1.                            Roll Call & SOI Updates (5 minutes)


2.                            Confirmation of agenda (Chair)


3.                            Welcome and housekeeping issues (Chair) (5 minutes)

a)                      Update from the legal committee
Following this call, a document which includes the rationale for posing each question will be provided. Regarding Reverse Look-ups, the legal committee thought the question was still relevant as the question for reverse look-ups as there was a proposal to prohibit reverse look-ups. 
The path forward for this – Thomas raised a point of order whether this is in scope, and it is the Chair’s authority to rule on that. Alternatively, the Team could remove the bracketed language.
Legal Committee recommends the legal questions should be sent out.
Re: legal vs. natural questions, NCSG noted the outstanding policy question should be answered before legal questions are pursued. The LC believes that in order for ICANN to carry out the feasibility exercise, the questions would be helpful to inform this exercise. The LC is seeking clarification of the existing legal advice.
Territorial scope – B&B provided legal guidance on the territorial scope of GDPR and the advice and updated EPDB guidance could be relevant here. The LC believes given the Board’s note re: geographic differentiation, the implications of the two events would be helpful.
WHOIS accuracy – follow-up clarification questions on B&B’s previous advice re: relevant parties – who may be included in this with respect to GDPR roles. LC also agreed it would be helpful to have practical guidance with respect to this.
Re: reverse look-ups, there is no agreement on this particular topic, so it would be wise to indicate that on that particular topic, there is no agreement within the Team, so the Team is seeking community feedback on this point.
Regarding reverse look-ups, the Initial Report or Final Report should remove all references to reverse look-ups. If the Team believes this should be dealt with at some point, it could flag it for a future PDP.
Question utility on putting reverse look-ups out for public comment – agree that this is out of scope, so the Team is not endorsing or prohibiting it
May be foolish to NOT get legal advice on this now
Disagree that just b/c B&B is available means the Team should ask advice
There is no objection to Q2. There is no consensus re: reverse look-ups. Therefore, the Team will not send the question regarding reverse look-ups. 
Object to territorial scope and the legal vs. natural question
Agreement to send Q2. The other questions need further discussion with the Legal Committee.
Accuracy question – NCSG reads this as accuracy is a right of the data subject
Action: EPDP Support Staff to send Q2 to B&B for its review.
b)                     ICANN follow up on Belgian DPA response to Strawberry letter – see questions suggested by Marc Anderson:

·      Is ICANN expecting an additional communication on the Strawberry letter?

·      Would ICANN org like feedback from the EPDP Team before it meets with the Belgian DPA?
The EC has been helping ICANN facilitate a meeting with the Belgian DPA – was hoping to have this meeting before the F2F, but this has not happened.
EC believes it would be useful to have a meeting with the Belgian DPA
There is no set date yet for this meeting, but trying to set meeting as early as possible in February
Synopsis: work is ongoing, and there is no update yet, but hoping for an update in the near future
4.       Introduction of Proposal for an SSAD Hybrid able to evolve to a Centralized and Automated Model (“The Chameleon”)

a)                      Staff overview
Attempt from Leadership and Staff to review the CPH proposal and reactions to it and the small team’s input and come forward with a proposal
Attempt to add flexibility and meaningful SLAs
Took the recommendations in the draft Initial Report and adding additional specificity 
The basics of the model – the requestor submits a disclosure request to the central gateway (performed or overseen by ICANN org) – the central gateway would determine if the request meets the criteria for an automated response or if it needs to go to the CP for review
There is an assumption that at the outset bucket 4 would be substantially larger than what is in bucket 5, but through experience gained or additional legal guidance, more requests may shift to bucket 5
Another new concept introduced in the hybrid-hybrid model is the steering committee – the underlying idea is should there be a mechanism that allows for the evolution over time without requiring a new PDP each time– maybe there is not, but this is an initial proposal for discussion. 
This is similar to the CSC to IANA-PTI to follow SLAs and the performance of PTI and enhance these over time – this is more used as a concept – is this necessary or is there a way that the evolutionary model could be captured?
Went through preliminary recommendations in the latest version of the Initial Report – the comments raised have been removed for ease of reading, but those comments will be dealt with via the issues list
There are now two preliminary recommendations about automated disclosure requests to accommodate the two branches in the previous diagram
SLAs have been included – is there a way to help predict what will come in
Some of the other changes deal with who would be dealing with what
In reference to the steering committee, this is an initial proposal – this is not intended to circumvent policy rules – it is trying to find a compromise solution from the various proposals.
b)                     EPDP Team reactions
Having a roadmap around how to allow future automation will be helpful. Maybe a function or a group can evolve this as more legal certainty is gained.
Strongly support the model – getting something close to what the different group could support. The document references shifting liability – we should not be talking about shifting liability. Strongly support the work of standing committee, but it should not be making policy decisions. There should not be a jointly-appointed rep for NCSG/ALAC.
Under current model, the only way to create contractual obligations on CPs is through a PDP. This group would not be wading into policy waters, only on implementation automation – this group cannot self-determine what is a policy question – that needs to go somewhere else like the GNSO Council. Looking at the broader view from groups are critical of the ICANN model, this seems to show that the PDP is not fit for purpose. This is the wrong approach – the right approach would be to fix the PDP. If the proposal is for a group outside of the PDP that could impact the contract, that is too big of a loophole/wildcard/variable for contracted parties to accept. Critics of the MSM will pounce on this as evidence that the MSM is not working.
Standing PDP could be an alternative to a standing committee
Do not support an external group that is designed to exclude non-commercial users from decision-making. The CSC is not an appropriate precedent. Question the need for evolution – the EPDP Team can come up with an automated model for certain disclosures – there can be evolution of procedures and technologies, and there can be oversight of that through the GNSO Council.
Would need a Privacy Impact Committee to assess the impact of this
New draft is closer to what can be published for initial comment – there are problematic elements but can discuss these at the F2F
Need to call out automation where legally permissible and technically feasible.
There could be standing IRT-like group to assist in the evolution
Modeling a steering committee after the CSC is very good – the membership will be different b/c the customers and functions are very different
Will the committee have the responsibility where the decision making for the disclosure request can be done through automated means? 
Have to discuss the safest way to get legal certainty is to get this approved as a code of conduct under the GDPR
Action: EPDP Team to review the GAC proposal on accreditation of public authorities
Action: Leadership and Staff will consider today’s discussion and prepare the F2F meeting in the best possible way
Action: EPDP Team can prepare additional feedback to assist Leadership in developing next week’s F2F agenda
c)                      Confirm next steps


5.                            Plans for F2F meeting in Los Angeles 

a)                     Leadership Priorities

b)                     EPDP Team input

c)                      Confirmation of expected homework / preparations by EPDP Team for the LA F2F meeting

d)                     Confirm next steps


6.                            Continue review of issues list (those items not dependent on item #4), if time allows

a)                     See highlighted items on the issue list

b)                        EPDP Team input

c)                      Confirm next steps


7.                            Wrap and confirm next EPDP Team meeting (5 minutes):

a)                      Monday 27 January 2020 at 9.00 local time at the ICANN office

b)                     Confirm action items

c)                      Confirm questions for ICANN Org, if any



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