[Gnso-epdp-team] A short note on possible outcomes re Natural, Legal or Unspecified

[Steve Crocker]

Volker,

Is it your position that even if the registrant declares they are a
business, i.e. a Legal Person, it is nonetheless necessary to
restrict access to their contact data because it might contain personal
information?

If so, then it would seem there's no reason to ask the status and
all registrant data should be treated as if it contains personal
information.

I'm not arguing whether this is a good or bad policy.  I'm just asking if
this is your interpretation.  If so, it's a very clean, simple and easy to
administer policy.  I would also imagine it would engender an increase in
efforts to obtain non-public data.

Thanks,

Steve


On Mon, Aug 9, 2021 at 9:57 AM Volker Greimann <vgreimann at key-systems.net>
wrote:

> All,
> please bear in mind that this group is not tasked with achieving a result
> "we like to see" but with determining whether a change from the previous
> result is possible, and if so, necessary. So far, no necessity has been
> demonstrated and even with regard to the possibility the issue of legal
> risk due to personal information being contained in legal entity data still
> remains. As such, the default stands.
>
> Sincerely,
>
> --
> Volker A. Greimann
> General Counsel and Policy Manager
> *KEY-SYSTEMS GMBH*
>
> T: +49 6894 9396901
> M: +49 6894 9396851
> F: +49 6894 9396851
> W: www.key-systems.net
>
> Key-Systems GmbH is a company registered at the local court of
> Saarbruecken, Germany with the registration no. HR B 18835
> CEO: Oliver Fries and Robert Birkner
>
> Part of the CentralNic Group PLC (LON: CNIC) a company registered in
> England and Wales with company number 8576358.
>
> This email and any files transmitted are confidential and intended only
> for the person(s) directly addressed. If you are not the intended
> recipient, any use, copying, transmission, distribution, or other forms of
> dissemination is strictly prohibited. If you have received this email in
> error, please notify the sender immediately and permanently delete this
> email with any files that may be attached.
>
>
> On Mon, Aug 9, 2021 at 1:50 PM Hadia Abdelsalam Mokhtar EL miniawi via
> Gnso-epdp-team <gnso-epdp-team at icann.org> wrote:
>
>> Thanks Steve for this work and this brief.
>>
>>
>>
>> In relation to the collection rules and just to note, ultimately we would
>> have liked to see rule number one {C} applied. Bearing in mind that rule
>> number one does not necessary need to say "Legal" or " Natural" it can also
>> say " unspecified". However, we do recognize that no consensus in this
>> regard is possible. Therefore our compromised position is rule number 4 {C,
>> O} and honestly speaking I do not understand why we cannot agree to this.
>> The difference between 4 {C,O} and 7 {C,O,N} is that  7 allows the
>> registrar to not offer the registrant the ability to specify. GDPR as we
>> all know makes this distinction and therefore it is only fair to give the
>> data subject the ability to specify if it wishes and please note here that
>> we should not conflate what is being offered by the registrar or collected
>> from the registrant with what is going to be available through the public
>> RDDS.
>>
>>
>>
>> What is going to be available through the public RDDS and the rules
>> associated with any type of disclosure, are governed by a different set of
>> rules which we could discuss and possibly agree to.
>>
>>
>>
>> As for option 8, my understanding is that this option refers to a
>> deadlock position, which is an uncommon position, however it is not 7.
>>
>>
>>
>> Best
>>
>> Hadia
>>
>> *From:* Gnso-epdp-team [mailto:gnso-epdp-team-bounces at icann.org] *On
>> Behalf Of *Steve Crocker via Gnso-epdp-team
>> *Sent:* Monday, August 09, 2021 12:06 AM
>> *To:* EPDP
>> *Subject:* Re: [Gnso-epdp-team] A short note on possible outcomes re
>> Natural, Legal or Unspecified
>>
>>
>>
>>
>>
>>
>>
>> On Fri, Aug 6, 2021 at 10:05 AM Mueller, Milton L <milton at gatech.edu>
>> wrote:
>>
>> I also appreciate the nice logical summary of options, Steve.
>>
>>
>>
>> A slightly revised version of my memo is attached.  The content is
>> exactly the same, but I have included a table showing which the three
>> possible registrar rules are consistent with each of the eight possible
>> GNSO rules.  I have also introduced "ø" as the notation for the empty set
>> instead of "{}."  This is purely a change in notation, not in meaning.
>>
>>
>>
>> Like Volker, however, I believe that you are overlooking the fact that we
>> have debated these options for months and have arrived firmly at option 7
>> (there is no distinction between 7 and 8, by the way).
>>
>>
>>
>> In 7, each registrar is permitted to have whichever rule it chooses.  In
>> 8, no rule is acceptable.  8 is a logical possibility but, quite obviously,
>> it leads to an impossible situation.  If such a policy were ever adopted,
>> everyone would most likely ignore it.  In that event, yes, 7 and 8 would
>> have similar effects, i.e. impose no constraint.  However, when we take
>> into account the effect of multiple policies, the combined effects of
>> multiple rules might indeed be 8.  Detecting that in advance is important.
>> See more on this below.
>>
>>
>>
>> In the meantime, the current state of agreement is 7, i.e. the GNSO will
>> not impose any constraint on whether a registrar always collects the
>> registrant's status, never collects the registrant's status, or makes it
>> optional for the registrant to state its status.
>>
>>
>>
>> Only 7 is possible, because that was the agreed outcome of phase 1 while
>> we explored other options in Phase 2. In Phase 2 we discovered we cannot
>> attain sufficient agreement to move off of that equilibrium.
>>
>>
>>
>> Some EPDP members will recall that I personally indicated a willingness
>> to move toward something like #6. This did not fly. Neither the Contracted
>> Parties nor my own SG would accept it, and the GAC, ALAC and two CSG
>> constituencies still wanted something more like 1 or 2.
>>
>>
>>
>> "Something like #6," eh?  Well, 6 is:
>>
>> 6 = {O, N}, a registrar must either make it optional or not collect it
>> but may not require it
>>
>>
>>
>> Meanwhile,
>>
>> 1 = C, i.e. every registrar collects this value
>>
>> 2 = O, i.e. every registrar is required to make this optional
>>
>> I wonder if they might have wanted
>>
>> 4 = {C, O}, a registrar must either collect it or make it optional
>>
>>
>>
>> I'll come back to this later in this note, but first let's look at two
>> other parts of this puzzle.
>>
>>
>>
>> First, there are logically *four* possible values regarding the status.
>>
>>
>>    - "Natural," indicating the registrant has declared itself to be a
>>    natural person, i.e. an individual
>>    - "Legal," indicating the registrant has declared itself to be a
>>    legal person, i.e. a business
>>    - "Unspecified," indicating the registrant has affirmatively refused
>>    to declare as either a Natural or Legal person
>>    - "Blank," indicating the question has not been asked.
>>
>> Is there a distinction between the third and fourth status, and does it
>> matter?  In some cases it could well matter.  In cases where it doesn't
>> matter, there's no harm in allowing for both possibilities and then
>> treating them the same.
>>
>>
>>
>> Second, we come to the really big question: How will this piece of
>> information be used?  I think we all expect this may play a role in what
>> data is returned when there is a request for registration data, but this
>> hasn't been fleshed out.
>>
>>
>>
>> In very approximate terms, the general thinking is that data about Legal
>> persons will be publicly available and data about Natural persons will not
>> be.  But this is only the beginning of the conversation, not the end.
>>
>>
>>
>> It is helpful to think in terms of two distinct processes.  One is the
>> process of collecting the data during the time of registration.  The other
>> is the process of responding to requests for information about the
>> registration.  Let's begin with the second process.
>>
>>
>>
>> *The Request Process*
>>
>>
>>
>> Requests for registration data will come from many different parties.
>> Some will come from the general public, and the requester will not be
>> required to identify itself nor adhere to any rules governing use or
>> protection of the data.  Others will come from identified, authenticated
>> and authorized requesters who have agreed to abide by a set of rules
>> governing the use and protection of the data they receive.
>>
>>
>>
>> Requesters in the latter category are not all the same.  The data they
>> receive will likely depend on who they are and how they will be using the
>> data.  Examples of different subgroups of requesters are network
>> operators, individual researchers, law enforcement, and IP attorneys, and
>> within each of these subgroups there will likely be different kinds of
>> requests.  For example, we know from interviewing the members of the Public
>> Safety Working Group they can identify five different kinds of requests,
>> one of which is a request available to anyone and four others that request
>> more data and come with a specific set of rules governing use and
>> protection.  At least one kind of request will come with legal paperwork,
>> e.g. a warrant or subpoena, but other kinds of requests will not.  And they
>> aren't the only subgroup that might have different kinds of requests.
>>
>>
>>
>> What distinguishes these various kinds of requests?  In the work we've
>> been doing, it appears reasonable to express requests in terms of two
>> concepts.  One is some way of specifying which data elements are being
>> requested.  The other is to specify the level of sensitivity, a term we've
>> been using to include whether data is marked "public" or "private."  Are
>> there more than just two levels?  Well, yes, it seems so.  In listening to
>> the extended policy discussions, we have heard that if a requester is only
>> authorized to see data elements marked "public" and the actual data element
>> existings but is not publicly available, the response will be "redacted."
>> However, we have also heard there are some data elements that are more
>> sensitive, and requests from someone not authorized to see them will not be
>> told anything about the data element.  This suggests there are at least
>> three levels of sensitivity.  As a working hypothesis, we use four levels.
>> If this turns out to be too many, it's easy to reduce the number.
>>
>>
>>
>> To recap, we think of a request as specifying the set of data elements
>> requested and the authorized sensitivity level.  The response will not
>> include any data elements outside of the requested set nor any data
>> elements more sensitive than the authorized sensitivity level.
>>
>>
>>
>> Of course, all of this is in addition to the identification of the
>> requester, the statement of purpose, a pointer to the requester's
>> credential, and agreement regarding use and protection of the requested
>> data.
>>
>>
>>
>> Specifying the requested data elements is not a small matter.  The data
>> dictionary has around 100 distinct data elements.  Each contact is a dozen
>> or data elements, with the name, organization, phone number, fax number,
>> email, street address, city, province or state, postal code and country
>> treated separately.  Added to these are the data elements for the DNS
>> records, for the payment data, for the IP address used at the time of
>> registration, the dates of registration and expiration, register locks, etc.
>>
>>
>>
>> To make it more manageable, each data element is grouped into one of
>> several categories.  A request then specifies which of these categories are
>> requested.
>>
>>
>>
>> *The Registration Process*
>>
>>
>>
>> With the above description of the request process, we can now fill in a
>> few details of the registration process.
>>
>>
>>
>> In broad terms, the registration process consists of collecting data from
>> the registrant and assigning a sensitivity level to each of the collected
>> data elements.  (And, of course, reserving the domain name and getting it
>> delegated if the registrant wants to put the domain name into service.)
>>
>>
>>
>> To accomplish this process, the registrar has a set of rules governing
>> which data elements are required, optional or not to be collected, and what
>> sensitivity level to assign to each collected data element.
>>
>>
>>
>> Once this process is complete, the registrar then stores the data
>> elements and is then in a position to process requests in accordance with
>> the agreed upon terms in a request.
>>
>>
>>
>> A further and all important addition to this short description is the
>> registrar might have one set of rules for registrants that are Natural
>> Persons, a different set of rules for registrants that are Legal Persons,
>> and perhaps even a different set of rules for registrants of Unspecified
>> status.  Moreover, the status of the registrant might not be the only
>> factor that determines which set of rules the registrant will use to
>> complete the registration.  For example, some registrars may treat
>> registrants that need a higher level of protection differently from
>> ordinary registrants.  Celebrities and public figures are examples of
>> Natural Persons who may need extra protection.  Registrations associated
>> with an impending business deal, e.g. product announcements, tentative
>> mergers, etc. are examples of registrations by Legal Persons that may need
>> extra protection.
>>
>>
>>
>> Taking the above into account, the registration process can be thought of
>> as having an initial phase to determine which set of rules to use for the
>> registration, and then the main phase to collect and label the rest of the
>> registration data.
>>
>>
>>
>> *So What About Natural vs Legal?*
>>
>>
>>
>> The putative purpose in collecting the registrant's status is to restrict
>> the disclosure of some portion of a Natural Person's registration data from
>> being publicly accessible.  In the terms described above, this means
>> marking those data elements as more sensitive than "public."  But what
>> happens if...
>>
>>    1. ... the registrar doesn't collect the status?
>>    2. ... the registrant refuses to give its status, i.e. responds
>>    "Unspecified?"As
>>
>> As was stated at the beginning of this note, the current GNSO policy
>> leaves the decision about collecting the status up to the registrar, so
>> there's no guarantee the registrar will have this data. Even so, we might
>> imagine a GNSO policy that says something to the effect of:
>>
>> if you collect the registrant's status,
>>
>> if the registrant's status is Natural, then apply rule set 1,
>>
>> otherwise, if the registrant's status is Legal, the apply rule set 2,
>>
>> otherwise, if the registrant's status is Unspecified, apply rule set 3
>>
>> if you don't collect the registrant's status, apply rule set 4
>>
>>
>>
>> So far, I haven't seen any discussion that goes into this level of
>> detail, nor have I seen any discussion about taking into account other
>> aspects of the registrant such as whether they require a higher level of
>> protection.
>>
>>
>>
>> *The GNSO is not the only source of rules*
>>
>> The GNSO is the venue for setting the rules included in ICANN's contracts
>> with the contracted parties.  The registrars and registries are obligated
>> to adhere to the terms of the contract.  However, there are other bodies
>> that can also set rules.  Governments are the obvious examples, but there
>> might be others.
>>
>>
>>
>> Suppose a registrar is beholden to three authorities, ICANN, Government 1
>> (G1) and Government 2 (G2).  Further, let's suppose that each body imposes
>> its own rule.
>>
>>
>>
>> The ICANN rule will be {C, O, N}, i.e. anything is ok.
>>
>> Let's suppose G1's rule is {O, N}, i.e. registrars are permitted but not
>> required to make it optional.
>>
>> And let's suppose G2's rule is {C}, i.e. every registrar subject to this
>> government's rules must collect this data.
>>
>>
>>
>> The combined effect of all three rules is ø, i.e. the empty set, and
>> there is no way a registrar can be in compliance with all of them.
>>
>>
>>
>> On the other hand, if G2's rule were loosened to {C, O}, a registrar
>> would be in compliance if its rule were O, i.e. making it optional for the
>> registrant to supply this data.
>>
>>
>>
>> *Conclusion*
>>
>>
>>
>> The process of specifying the rules for collection and responses to
>> requests has only just begun.
>>
>>
>>
>> As we noted in prior comments and in our SSAC report, the focus on which
>> data is to be marked "public" is just a small part of the overall puzzle.
>> The extended discussions about Natural vs Legal are motivated, at least in
>> part, by the attempt to make as much of the registration data publicly
>> accessible because there is not yet any credible path toward an efficient
>> and effective access system for non-public data.
>>
>>
>>
>> Steve
>>
>>
>>
>>
>> ------------------------------
>>
>> *From:* Gnso-epdp-team <gnso-epdp-team-bounces at icann.org> on behalf of
>> Volker Greimann via Gnso-epdp-team <gnso-epdp-team at icann.org>
>> *Sent:* Thursday, August 5, 2021 4:41 PM
>> *To:* Steve Crocker <steve at shinkuro.com>
>> *Cc:* EPDP <gnso-epdp-team at icann.org>
>> *Subject:* Re: [Gnso-epdp-team] A short note on possible outcomes re
>> Natural, Legal or Unspecified
>>
>>
>>
>> Hi Steve,
>>
>>
>>
>> I fail to see how this admittedly succinct summary of the existing
>> options helps us move ahead the discussion as this basically only reflects
>> the discussions we have over the past months.
>>
>> At this point, we are likely either at option 7 or 8, which incidentally
>> also describe the status quo.
>>
>>
>>
>> The real issues start after making these basic definitions as there are
>> complexities down the line following from the designations:
>>
>> a) In case of C or O, does that lead to partial publication based on the
>> designation? Does it lead to forwarding the designation to the registries?
>> How would/should the registries treat those designations received? Can they
>> rely on them? Will they rely on them without burdening registrars with
>> further liability and indemnification requirements?
>>
>> b) What happens down the road? Will agreeing to optional fields
>> immediately lead to calls for them to be made into requirements by future
>> work?
>>
>>
>>
>> Best,
>>
>> --
>> Volker A. Greimann
>> General Counsel and Policy Manager
>> *KEY-SYSTEMS GMBH*
>>
>> T: +49 6894 9396901
>> M: +49 6894 9396851
>> F: +49 6894 9396851
>> W: www.key-systems.net
>>
>> Key-Systems GmbH is a company registered at the local court of
>> Saarbruecken, Germany with the registration no. HR B 18835
>> CEO: Oliver Fries and Robert Birkner
>>
>> Part of the CentralNic Group PLC (LON: CNIC) a company registered in
>> England and Wales with company number 8576358.
>>
>> This email and any files transmitted are confidential and intended only
>> for the person(s) directly addressed. If you are not the intended
>> recipient, any use, copying, transmission, distribution, or other forms of
>> dissemination is strictly prohibited. If you have received this email in
>> error, please notify the sender immediately and permanently delete this
>> email with any files that may be attached.
>>
>>
>>
>>
>>
>>
>>
>> On Thu, Aug 5, 2021 at 5:26 PM Steve Crocker via Gnso-epdp-team <
>> gnso-epdp-team at icann.org> wrote:
>>
>> The attached note is a summary of the possible policies regarding Natural
>> vs Legal vs Unspecified
>>
>> _______________________________________________
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