[Gnso-epdp-team] On the proposed guidance
vgreimann at key-systems.net
Thu Apr 15 12:34:50 UTC 2021
I think we need to be cognisant of the current status quo and use that as
the basis for our thoughts on the matter:
1) There is no differentiation between legal or natural contacts.
2) The redaction of all contacts is permitted and has become the de-facto
3) We allow consent-based disclosure.
4) NIS 2 may at some point in the future require publication of
This leads to two very simple follow-on questions:
a) How do we identify such non-personal information? What is really
necessary for this end?
b) What would publication entail?
For a) we and Twobirds identified voluntary self-declaration of the data
submitted. As all data is redacted by default, the differentiation of the
data subject category is irrelevant as it ultimately only boils down to the
declaration of the data subject thatthe data contains no personal
For b), the term "publish" is undefined. For all we know, it could mean
publication in a physical print edition (it doesn't mean that though). But
publication within SSAD can very well be sufficient for that definition.
There is no reason whatsoever to assume differently.
Volker A. Greimann
General Counsel and Policy Manager
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On Thu, Apr 15, 2021 at 1:52 PM Hadia Abdelsalam Mokhtar EL miniawi via
Gnso-epdp-team <gnso-epdp-team at icann.org> wrote:
> Dear Milton,
> Thank you for your constructive thoughts. I believe we have a lot to build
> on. In relation to principle one, I think we all agree that some legal data
> subjects would want to publish their data in the RDDS, but without your
> first principle they can only do this through consent. The legal memo
> received lately from Bird & Bird explains that if CPs publish the data of
> legal persons based on consent they are at a higher risk than if they
> publish the data of legal persons based on self-designation. In the latter
> case CPs might only be liable if they fail to address a complaint. So the
> question always was: what is the benefit of labeling the data as belonging
> to a natural or legal person? Of course we all know that GDPR protects the
> data of natural persons and not legal persons, but the important answer now
> is that the distinction significantly reduces the liability of CPs. In
> addition, the distinction is helpful in performing the balancing test in
> case the data is not published and I am sure if we look into individual use
> cases we can find much more benefits. Moreover, it could prove to be useful
> regarding possible upcoming regulations. I would also add that the level of
> protection assigned to the data elements suggested by Steve provides
> additional safe guards and flexibility in the implementation.
> Finally, I join you in being optimistic about our ability to finish this.
> Kind regards
> *From:* Gnso-epdp-team [mailto:gnso-epdp-team-bounces at icann.org] *On
> Behalf Of *Mueller, Milton L via Gnso-epdp-team
> *Sent:* Wednesday, April 14, 2021 10:12 PM
> *To:* gnso-epdp-team at icann.org
> *Subject:* Re: [Gnso-epdp-team] On the proposed guidance
> I have only gotten time to review the latest Guidance document and the
> surrounding debate today. Apologies, but there is a lot going on in my day
> I am disappointed to see that we seem to be going backwards. I see
> divergence rather than convergence on the way we are approaching the
> I see no point in adding more noise to the current document via the
> Comments function. What I would like to try to do is articulate some broad
> principles about how to deal with the legal/natural distinction. If we can
> agree on those principles, it will be relatively easy to complete the
> document. If we cannot/do not agree on those principles, additional
> wordsmithing and debates over terms will not get us anywhere.
> So here are the broad principles that I would offer up for debate:
> 1. The legal/natural distinction is relevant and we need to find a
> way make it in RDDS without compromising privacy rights.
> 2. Registrants should be able to self-designate as legal or
> natural, with no burden of authentication placed on registrars or registries
> 3. To protect small home offices or NGOs who are technically Legal
> persons but whose registration data may include Personal data, we need an
> additional check in the process.
> 4. As long as they conform with the above 3 principles,
> registrars/ries (CPs) should be given maximum flexibility to choose the way
> to differentiate.
> Principle 1 discussion:
> If we cannot agree on this (or agree to abandon this principle), _*nothing
> else will fall into place*_. Ever. So let’s settle that. Steve and Volker
> I suspect will disagree with this principle. Steve has argued that the L/N
> distinction is “not a central concern” and all that matters is whether the
> registrant’s data is to be made available to anyone. If he is right, we can
> discard the guidance altogether, because we already have a recommendation
> to allow the RNH to consent to the publication of their data. Volker has
> also suggested that it is personal data we need to differentiate, not L/N .
> I disagree with Steve and Volker on this and so do most of the rest of the
> group. L/N distinction is a central concern to certain stakeholder groups
> in the EPDP, because a) GDPR and other data protection laws do not protect
> it and this process is all about bringing RDS into compliance with privacy
> law; b) Legal person data could be published and it would provide easier
> access to their registration data. As a NCSG member I can find no basis for
> objecting to the publication of WalMart’s, Kroger’s or the local hardware
> store’s registration data. Any concerns about PII are addressed by
> principles 2 and 3. Steve is approaching this as an engineer, but this is a
> policy process, and we will not obtain agreement on a solution unless
> certain stakeholders are satisfied. If they think it is a central concern,
> it’s a central concern, that’s how policy/politics work.
> Principle 2 discussion
> This is the key principle that keeps NCSG and CPH satisfied. Registrants
> are in control of how they are designated. Yes, this means that some people
> will lie. That is just something we will have to accept. One cannot erase
> that possibility without creating a system that is too burdensome and
> costly as to outweigh any benefits.
> Principle 3 discussion
> This is something everyone seems to agree on already. But it is good to
> make it explicit, then we can work out how specific our guidance can get,
> so as to conform to …
> Principle 4
> Avoid being overly prescriptive, but ensure that the other 3 principles
> are honored. So yes, Volker, we give you maximum flexibility to implement
> in accordance with different business models, but you can NOT make a
> designation for a RNH, because it violates principle 2.
> I truly believe that if we can come to agreement on these 4 principles and
> use them as the basis for drafting guidance, we can actually finish this.
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