[Gnso-epdp-team] On the proposed guidance

Sarah Wyld swyld at tucows.com
Thu Apr 15 13:44:28 UTC 2021

I would like to draw the team’s attention back to the other proposed guidance document:


I’m not sure why it’s been largely ignored for the last month but I think this guidance does address the necessary issues around assisting Contracted Parties who do differentiate on Legal vs. Natural. 

There’s no need to discuss contractual amendments (which I think are out of scope for this team) and I think Volker made some very good points in the other fork on this same email thread. 

Sarah Wyld, CIPP/E

Policy & Privacy Manager
swyld at tucows.com 
+1.416 535 0123 Ext. 1392

From: Steve Crocker via Gnso-epdp-team
Sent: April 15, 2021 9:36 AM
To: Kapin, Laureen
Cc: gnso-epdp-team at icann.org
Subject: Re: [Gnso-epdp-team] On the proposed guidance


Thanks for your note.  With respect to the details under legal person, we believe the issue of consent should be moot.  Everyone who is named in a role in a registration must have already been informed and consented to all of the conditions involved in the role.  This is a prerequisite for having a working system and is not specific to meeting a privacy regulation.  The fact that this requirement is not specified in the existing contractual documentation is an error and needs to be rectified.


On Thu, Apr 15, 2021 at 6:28 AM Kapin, Laureen via Gnso-epdp-team <gnso-epdp-team at icann.org> wrote:
I think we share common ground on many key issues and I would like to build on the many helpful inputs received as to what would be advisable. 
Goal: publish non-personal, non-protected data to the greatest extent permissible under the GDPR and within low legal risks to data controllers and processors.  Note, the description below does not fully detail the advised safeguards which B&B has documented and which we’ve adopted in our prior input because my impression is that we generally agree that the safeguards are prudent.  This description merely seeks to identify the key steps that must be taken to ensure that personal data is identified and protected and non-personal data is published.  I also highlight the addition of a potential additional safeguard – Confirmation.  I think this process incorporates what we’ve discussed and inputs received and could form a useful framework for discussion. 
   New Registrations: This process applies to new registrations (Steve C. has some useful thoughts on how to deal with existing Registrations) 
   Publish: When I use the word “publish,” I mean made public directly; not via the SSAD.  
W  Flexibility: Based on input from our Registrar colleagues, we should permit flexibility for how these steps are implemented to account for the varied business models in place.  
d  Timing: All identifications need to take place at the time of registration or shortly thereafter (w/in the 13-day accuracy verification window) and no registration data should be published until the identification, consent, and confirmation process concludes
1.   A threshold identification of the registrant as a natural or legal person;
a.   If natural, registration info redacted
b.   If legal, further inquiries and advisories (safeguards):
                                         i.    if the legal person identifies that it has a protected status under the GDPR
1.   registration info redacted
                                        ii.    If the legal person registration contains personal data, advise of consequences (publication)
1.   Obtain necessary consents
2.   Possible additional safeguard: Ask Registrant to Confirm any identification that will result in publication of contact data (akin to confirming a flight reservation or stock trade)
a.   Publish 
3.   If no consent
a.   Redact
2.   Provide quick and easy opportunity to correct any mistakes
I hope this is useful. 
Kind regards,
Laureen Kapin
Counsel for International Consumer Protection
Federal Trade Commission
(202) 326-3237 
From: Gnso-epdp-team <gnso-epdp-team-bounces at icann.org> On Behalf Of Volker Greimann via Gnso-epdp-team
Sent: Thursday, April 15, 2021 8:35 AM
To: Hadia Abdelsalam Mokhtar EL miniawi <Hadia at tra.gov.eg>
Cc: gnso-epdp-team at icann.org
Subject: Re: [Gnso-epdp-team] On the proposed guidance
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 standard.
3) We allow consent-based disclosure. 
4) NIS 2 may at some point in the future require publication of non-personal information.
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 information. 
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 job. 
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 problem.
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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