[gnso-rds-pdp-wg] The principle of consent

Gomes, Chuck cgomes at verisign.com
Thu Jun 1 21:06:17 UTC 2017


I apologize for using Volker’s message as an example but I think it might serve as a useful lesson for everyone. The clause I highlighted in yellow below is derogatory and adds no value to the points made.  I ask Volker and everyone to avoid derogatory remarks and stick to the points that will constructively contribute to the discussion.



Chuck



From: gnso-rds-pdp-wg-bounces at icann.org [mailto:gnso-rds-pdp-wg-bounces at icann.org] On Behalf Of Volker Greimann
Sent: Thursday, June 01, 2017 12:09 PM
To: gnso-rds-pdp-wg at icann.org
Subject: [EXTERNAL] [gnso-rds-pdp-wg] The principle of consent



As it has been brought up by Dotzero in a very reckless manner, I feel it is important to point out what "consent" actually means in the context of the GDPR:

First, implied consent is no longer sufficient under the current regulation. The GDPR requires that the data subject signals agreement to the specific and defined use of its data by "a statement or a clear affirmative action".

In other words, an explicit and seperate opt-in is required, where the action of providing consent is clearly distinguishable from any other matters in a written document. This may be ticking a seperate box on a website or choosing specific technical settings, but in all cases it must be based on an explanation of what it is that the data subject is agreeing to. Silence, pre-ticked boxes or inactivity is insufficient. Hiding the consent clauses in the registration agreement is insufficient.

This consent must be "freely given, specific, informed and unambiguous."

Fun stuff comes in the next bit:

The controller is required to provide “accurate and full information on all relevant issues,” including the nature of the data that will be processed, the purposes of processing, the identity of the controller, and the identity of any other recipients of the data.

I will highlight the salient part again: "ANY OTHER RECIPIENTS OF THE DATA." So no expansion of those with access at a later data, because that would immediately invalidate the consent given.

Finally, this:

"Importantly, a controller may not make a service conditional upon consent, unless the processing is necessary for the service."
So no consent can be construed for any uses beyond the functioning of the service, the internet and any other use tied directly to the service. All those nice uses that whois data is currently put to that have nothing to do with the service that is provided to the data subject? Say goodbye to them now!

Further reading for those so inclined:
https://iapp.org/news/a/top-10-operational-impacts-of-the-gdpr-part-3-consent/

Also note that the consent provided by current registrant does not satisfy the requirements, so what happens with legacy data with regard to its import into any RDS system will be a whole new nightmare down the road.

Am 01.06.2017 um 17:41 schrieb Michael Peddemors:

   +1

   On 17-06-01 07:47 AM, Dotzero wrote:



      The issue you raise is addressed simply enough by requiring a privacy
      disclosure be displayed at the time of domain registration. This
      requirement can be incorporated into the ICANN registry agreements. Note
      that this does not resolve the issue for CC domains.

      Michael Hammer

      On Thu, Jun 1, 2017 at 10:43 AM, Stephanie Perrin
      <stephanie.perrin at mail.utoronto.ca<mailto:stephanie.perrin at mail.utoronto.ca>
      <mailto:stephanie.perrin at mail.utoronto.ca><mailto:stephanie.perrin at mail.utoronto.ca>> wrote:

          I certainly agree that if people enter personal information as part
          of their DNS registration or their motor vehicle licence
          registration, it is done with implied consent... as long as there is
          sufficient information to permit them to understand just how the
          data is being used and where it is going.  However, as I tried to
          say with respect to registering a domain name, I really don't think
          the average non-expert citizen who might want to register a domain
          name would get enough information to truly understand how far
          his/her information goes, and how difficult it is to get it removed
          once it has appeared in the public record.  We should build this
          system so that everyone understands it, not just the experts.

          cheers Stephanie


          On 2017-06-01 05:18, jonathan matkowsky wrote:



             Stephanie,

             ​I agree with you that we should not conflate collection
             limitation principles with openness principles.

             I respectfully disagree with most of what you wrote in the first
             paragraph of your post script.
             Here we are talking about users potentially entering personal or
             pseudonymous information when they are not being asked for it (nor
             is it required) to begin with, and it is not required for purposes
             of which it's being collected.​ That is the

             ​scope
              of what needs to be assessed
             ​if at all and how the scope needs to be
              defined from the beginning
             ​ if you were to conduct a PIA​
             .
             ​ ​

             ​
              ​
             Personal information is not being used or intended to be used just
             because a person decides to enter personal information into a field.
             ​
             The example of how you can combine databases to re-identify a
             person based on the SOA record is the equivalent of protecting
             domain names as personal information because a person
             can register their driver's license
             ​ or name and date of birth​
             as a domain name.
             ​
             I would argue no PIA should be required
             ​as a result ​
             even in accordance even with best practices.
             ​
             A PIA needs to be conducted in a manner that is commensurate with
             the level of privacy risk identified
             ​.

             I respectfully disagree with ​you that thin data is personal. We
             are talking about identifiers (codes or strings that represent an
             individual or device).  Many labels can be used to point to
             individuals. Some are precise and most, imprecise or vague.
             There's no question that an IP address is a device identifier.
             Device IDs, MAC addresses can be a source for user tracking.  But
             ​i
             ​dentifiers can be strong or weak depending on how precise they
             are as well as the context. It cannot be measured without taking
             linkability into consideration.  For that reason, name servers are
             not the same as IP addresses or MAC addresses any more so than the
             existence of a domain name is an identifier. If a person chooses
             to use identifiable information when it is not being asked for or
             required for purposes of which the data is being collected, that
             does that mean we need to classify all the data according to that
             unlikely scenario. Those setting up their own DNS would be
             relatively speaking, sophisticated Internet users that presumably
             know the basics of how DNS operates in any case, so by entering
             the information in that way, they are choosing to customize their
             DNS in a personal way similar to a person that chooses to show
             personal information on their license plate number.

             ​I know that the motor vehicle registry is restricted now in most
             places so that you would need a subpoena to get that kind of
             personal information. This is also true of an IP address though
             and IP providers. The fact is a person can put their name and date
             of birth on a license plate if they want to customize it. And then
             they get on the road. That does not mean the license plate numbers
             are all personal information. It's pseudonymous data. It is true
             that it is a stronger identifier than an IP address insofar as if
             you subpoena the motor vehicle registry operator, you will get the
             personal information behind that license plate number. If you
             subpoena the ISP, you MIGHT get the personal information depending
             on the nature of the IP address. It's still true that to drive a
             car, you need to show your license plate number on the vehicle.

             I would argue that thin Whois data is pseudonymous or personal
             data to the same extent that a person can choose to _customize_ a
             license plate if they want to, and put personal or psuedonymous
             data into fields
             for which the data being collected does not ask for or require
             them to do so.
             ​

             A
              person can register their driver's license as a domain name.
             They can use a personal email in their SOA record, or personal NS.
             Just because it's theoretically possible for someone to enter
             pseudonymous (or even personal) data into multiple databases when
             they are not being asked for it, and those combination of choices
             make it possible to identify them, does not mean one of the sets
             (Thin Whois) should be classified as personal information subject
             to a PIA.

             ​

             Jonathan Matkowsky,
             VP – IP & Brand Security
             USA:: 1.347.467.1193 <tel:%28347%29%20467-1193><tel:%28347%29%20467-1193> | Office::
             +972-(0)8-926-2766 <tel:+972%208-926-2766><tel:+972%208-926-2766>
             Emergency mobile:: +972-(0)54-924-0831 <tel:+972%2054-924-0831><tel:+972%2054-924-0831>
             Company Reg. No. 514805332
             11/1 Nachal Chever, Modiin Israel
             Website <http://www.riskiq.co.il><http://www.riskiq.co.il>
             RiskIQ Technologies Ltd. (wholly-owned by RiskIQ, Inc.)

             On Thu, Jun 1, 2017 at 12:02 AM, Stephanie Perrin
             <stephanie.perrin at mail.utoronto.ca<mailto:stephanie.perrin at mail.utoronto.ca>
             <mailto:stephanie.perrin at mail.utoronto.ca><mailto:stephanie.perrin at mail.utoronto.ca>> wrote:

                 Your summary today was great Andrew.

                 I am not arguing about the disclosure of thin data.  We
                 already voted on unauthenticated mandatory disclosure, weeks
                 ago (or at least it feels like weeks ago).  Lets please move
                 on.  We are debating this yet again, because people keep
                 asking, is thin data personal?  [lots of people missed the
                 last call]  The answer is yes (IMHO).  Does that mean it
                 cannot be disclosed?  The answer is no.  Does the
                 proportionality principle apply?  Yes.  Have we already gone
                 through this?  Yes.  Can we come back to it?  Yes, but
                 hopefully only if we have to.....we will have to when we get
                 to data elements.

                 cheers Stephanie
                 PS a fundamental problem here is that people try to categorize
                 information that in their view should be disclosed, as not
                 personal information.  This fight has gone on for years over
                 IP address, for instance.  The important question is not
                 actually whether it is personal data or not, it is "do you
                 need to disclose it to make things work?"....and if the answer
                 is yes then you try to mitigate the disclosure and try to keep
                 it minimized to what is absolutely required.  Hence the PIA,
                 which should employ both data minimization and the test in the
                 proportionality principle as techniques to evaluate data elements.
                 A good and really simple example is a phone number.  IS it
                 personal info?  (the telcos fought for years, trying to claim
                 they owned it and it was not personal).  Obviously it pertains
                 to you, people feel strongly that it is personal (culturally
                 relative of course but...) and yet if noone ever learns your
                 number your phone won't ever receive a call.  That does not
                 mean you have to disclose it everywhere.....only where
                 necessary.  And it should mean that it does not have to follow
                 you everywhere, but that is becoming increasingly hard to
                 manage....

                 By the way, informed consent is not the same as transparency
                 requirements.  Transparency requirements are exactly
                 that....you have to be transparent about what you are doing
                 with data.  Let us not conflate that with consent.

                 I will quit now and stop trying to answer questions.  I would
                 like to humbly suggest, however, that we have a real shortage
                 of basic understanding of how data protection law works and is
                 interpreted.  If there is a data protection law expert that
                 folks might listen to, we should hire that person to advise
                 us.  It might save a lot of time.


                 On 2017-05-31 16:00, Andrew Sullivan wrote:



                    Hi,

                    On Wed, May 31, 2017 at 03:20:59PM -0400, Stephanie Perrin wrote:



                       That does not mean we need to protect it, it means we have to examine it in
                       terms of DP law.  May I repeat the suggestion that Canatacci made in
                       Copenhagen in response to a question.....(I forget the precise question he
                       was asked, sorry). If you want to figure out whether you have to protect
                       something or not, do a privacy impact assessment.

                    As I think I've said more than once in this thread, I think we _have_
                    done that assessment and I think the answers are obvious and I think
                    therefore that there is nothing more to say about this principle in
                    respect of thin data:

                        - the data is either necessary for the operation of the system
                          itself or else necessary for distributed operation and
                          troubleshooting on the Internet.

                        - the data does not expose identifying information about anyone,
                          except in rather strained examples where the identifying
                          information is already completely available via other means.

                    What more is one supposed to do?

                    Best regards,

                    A



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