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

allison nixon elsakoo at gmail.com
Thu Jun 1 21:15:59 UTC 2017 

May as well add this part to it as well:

>>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!

This gloating tone is not only unhelpful, but it's likely not even legally
required. Relating to the subject of social media, there is no way that
Facebook public profiles will be considered less sensitive than WHOIS data.
The FindFace app can already demonstrate that a picture of a face can be
used to identify an individual even if their name is not known. And I don't
forsee Facebook shutting down over this. And if the laws do require a
complete shutdown of all social media, then the laws are going to change.

On Thu, Jun 1, 2017 at 5:06 PM, Gomes, Chuck via gnso-rds-pdp-wg <
gnso-rds-pdp-wg at icann.org> wrote:

> 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>
> <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 <(347)%20467-1193> <tel:%28347%29%20467-1193>
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>
>     On Thu, Jun 1, 2017 at 12:02 AM, Stephanie Perrin
>     <stephanie.perrin at mail.utoronto.ca
>     <mailto:stephanie.perrin at mail.utoronto.ca>
> <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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> --
>
> Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung.
>
>
>
> Mit freundlichen Grüßen,
>
>
>
> Volker A. Greimann
>
> - Rechtsabteilung -
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