[gnso-rds-pdp-wg] IMPORTANT: Notes from RDS PDP WG Meeting - 3 October

jonathan matkowsky jonathan.matkowsky at riskiq.net
Wed Oct 4 23:37:13 UTC 2017


Makes sense, and good point.

On Wed, Oct 4, 2017 at 11:51 AM Greg Aaron <gca at icginc.com> wrote:

> A clarification is probably worth inserting here.
>
>
>
> ICANN the community does policy development. The community develops
> policies and the Board approves them.  The RDS WG is an example of this.
>
>
>
> ICANN Org has a fair amount of latitude to negotiate contracts, which
> define and dictate requirements upon contracted parties (the registries and
> registrars).  This is also policy, just of a different flavor.   It may or
> may not overlap with community-developed policy.
>
> The GDPR effrot that ICANN Org is pursuing right now is an example of this.
>
>
>
> Also, ICANN Org decides when and how to perform policy compliance, i.e.
> how both community-developed or negotiated policy is actually enforced.
>
>
>
> All best,
>
> --Greg
>
>
>
> *From:* gnso-rds-pdp-wg-bounces at icann.org [mailto:
> gnso-rds-pdp-wg-bounces at icann.org] *On Behalf Of *Chuck
> *Sent:* Wednesday, October 4, 2017 2:29 PM
> *To:* 'jonathan matkowsky' <jonathan.matkowsky at riskiq.net>; 'Marika
> Konings' <marika.konings at icann.org>; gnso-rds-pdp-wg at icann.org;
> lisa at corecom.com
>
>
> *Subject:* Re: [gnso-rds-pdp-wg] IMPORTANT: Notes from RDS PDP WG Meeting
> - 3 October
>
>
>
> Note that ‘ICANN’ has two definitions that probably apply here:  ICANN the
> organization and ICANN the community.  Both determine purposes and means of
> processing personal data via policy development.  The community develops
> policies and the Board approves them.
>
>
>
> Chuck
>
>
>
> *From:* gnso-rds-pdp-wg-bounces at icann.org [
> mailto:gnso-rds-pdp-wg-bounces at icann.org
> <gnso-rds-pdp-wg-bounces at icann.org>] *On Behalf Of *jonathan matkowsky
> *Sent:* Wednesday, October 04, 2017 10:14 AM
> *To:* Marika Konings <marika.konings at icann.org>; gnso-rds-pdp-wg at icann.org;
> lisa at corecom.com
> *Subject:* Re: [gnso-rds-pdp-wg] IMPORTANT: Notes from RDS PDP WG Meeting
> - 3 October
>
>
>
> I’ve given more thought to this and it it seems now obvious to me that
> ICANN is in fact a data Controller since alone or jointly with others, it
> is determining the purposes and means of the processing of the personal
> data.
>
>
>
> Jonathan Matkowsky
>
>
>
> On Wed, Oct 4, 2017 at 9:54 AM jonathan matkowsky <
> jonathan.matkowsky at riskiq.net> wrote:
>
> Marika, there needs to be a “data flow” diagram with an analysis of the
> data from the time it’s provided by the registrant until it makes its way
> into the Whois, and the role that each registrar plays as controller vs
> processor, and ICANN as a co-controller versus processor. All the different
> obligations under the GDPR flow from these categories and they trigger
> different types of obligations. And that is unfortunately missing.
>
>
>
> On Tue, Oct 3, 2017 at 5:29 PM Marika Konings <marika.konings at icann.org>
> wrote:
>
> Jonathan, I am not sure what you are referring to with ‘an analysis of
> ICANN as a data controller versus processor vs. co-controller’. I am not
> aware that anyone in particular is working on such an analysis but I am
> happy to stand corrected. I do note that the WSGR memorandum addresses the
> issue of controller in a number of its responses such as those to question
> 1 and question 17.
>
>
>
> As Chuck indicated on the call, if/when responses are received to the
> limited number of follow up questions, these will be shared with the WG.
>
>
>
> Best regards,
>
>
>
> Marika
>
>
>
> *From: *<gnso-rds-pdp-wg-bounces at icann.org> on behalf of jonathan
> matkowsky <jonathan.matkowsky at riskiq.net>
> *Date: *Tuesday, October 3, 2017 at 15:04
> *To: *"gnso-rds-pdp-wg at icann.org" <gnso-rds-pdp-wg at icann.org>, Lisa
> Phifer <lisa at corecom.com>
> *Subject: *Re: [gnso-rds-pdp-wg] IMPORTANT: Notes from RDS PDP WG Meeting
> - 3 October
>
>
>
> Hi Lisa,
>
>
>
> —When will we get an analysis of ICANN as a data controller versus
> processor vs co-controller? How can we draw conclusions from the memo
> without this info?
>
>
>
> —What are the follow-up questions already posed to the law firm?
>
>
>
> Thanks
>
> Jonathan
>
>
>
> On Tue, Oct 3, 2017 at 3:33 PM Lisa Phifer <lisa at corecom.com> wrote:
>
> *Dear all,*
>
> *Below please find notes from today’s RDS PDP WG meeting.*
>
> *To recap Action Items from today’s call:*
>
> ·        *Action Item:* Staff to incorporate WG agreement in working
> draft.
>
> ·        *Action Item:* WG leadership team to consider input received
> during today's meeting and consider how to move forward as today's meeting
> did not achieve the goal of moving forward on these questions.
>
> *Best regards,*
> *Lisa*
>
>
>
> *Action Items and Notes from RDS PDP WG Call – 3 October 2017*
>
> *These high-level notes are designed to help PDP WG members navigate
> through the content of the call and are not meant as a substitute for the
> transcript and/or recording. The MP3, transcript, and chat are provided
> separately and are posted on the wiki here: *
> https://community.icann.org/x/bWfwAw[community.icann.org]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_bWfwAw&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=pSoLE7Y91MVjMmhJ-xbOcyqU8WJlZg4XQXqvhIgGu_0&s=4KHESqzP9NmlfumEghxako3KC7O-WGxT-TXjxYSCgXc&e=>
>
> 1. Roll Call/SOI Updates
>
> ·        No SOI updates identified
>
> 2. Apply results from last week’s poll to working document
>
> ·
> https://community.icann.org/download/attachments/66086765/AnnotatedResults-Poll-from-26SeptCall.pdf
> [community.icann.org]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_download_attachments_66086765_AnnotatedResults-2DPoll-2Dfrom-2D26SeptCall.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=pSoLE7Y91MVjMmhJ-xbOcyqU8WJlZg4XQXqvhIgGu_0&s=GxZzR0dVr7ytyC8X_yDY1AyGTyVYRZ3Ecgbez36rWxA&e=>
>
> ·        22 members participated in poll
>
> ·        77% still don't think Original Registration Date should be a new
> data element
>
> ·        Record in working document as tentative agreement
>
> *WG Agreement: *There is no requirement for the Original Registration
> Date as proposed by the EWG Final Report
>
> *Action Item:* Staff to incorporate WG agreement in working draft.
>
> 3. General questions about WSGR memo
>
> ·
> https://gnso.icann.org/en/drafts/wsgr-icann-memorandum-25sep17-en.pdf
> [gnso.icann.org]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_drafts_wsgr-2Dicann-2Dmemorandum-2D25sep17-2Den.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=pSoLE7Y91MVjMmhJ-xbOcyqU8WJlZg4XQXqvhIgGu_0&s=2doxZn4IxSgdwjUDmWxeg3UdGggQLYV-QKzqnRTNw_8&e=>
>
> ·        Leadership in consultation with legal advisors within WG have
> been working to extract principles from WSGR memo and also answers
> previously supplied by senior EU privacy experts, to be applied to our work
> going forward
>
> ·        How was the law firm selected? Several candidates with expertise
> identified by staff and augmented with suggestions from legal advisors
> within WG. Using that input, candidates were evaluated and chosen based on
> experience, reputation, etc. Selection was ultimately made by leadership
> team not advisory group, with group's input on two finalists.
>
> ·        Do we intend to go back to the law firm to ask for more typical
> legal advice - that is, tell them what we propose doing, and ask for advice
> on legal risks associated with proposal? Yes, we can seek legal advice in
> the future, from this firm or another firm, at appropriate points in our
> work - that will incur additional cost to seek answers to new questions.
>
> ·        Were discussions with law firm recorded, or can a transcript be
> provided? The leadership team and legal advisors reviewed a confidential
> draft for the purpose of identifying any items required clarification,
> enabling finalization of the memo.
>
> ·        The law firm explicitly asked that draft not be shared and be
> treated as confidential; they prefer to share only final work product. In
> some cases, they asked for clarification of the questions that were asked
> by WG. We can share questions that were asked, but those questions focused
> on clarification and not questioning views or opinions expressed by WSGR.
>
> ·        How much did the advisory team feedback impact the ultimate
> questions? Not at all. The questions were developed by the WG prior to
> ICANN58 meeting, and then presented to full WG for review/edit/approval.
> Those questions were then published and asked of senior EU privacy experts
> in CPH. We intentionally gave WSGR the same questions (exactly) as were
> given to experts at CPH.
>
> ·        Now it's time to take inputs received from two sources and use
> it to address work outlined in our charter...
>
> 4. Introduce methodology to be used to apply memo to our work
>
> ·        Charter questions: Users/Purposes, Gated Access, Data Accuracy,
> Data Elements, and Privacy - fundamental questions to be addressed in Phase
> 1
>
> ·        We have already examined all but Accuracy to some degree, mostly
> for MPDS
>
> ·        What we're going to do today is to start with Charter question
> on Privacy and look at how inputs from senior EU privacy experts AND WSGR
> help us answer or move forward in addressing that question/sub-questions
>
> 5. Starting with charter question on Privacy for deliberation
>
>     a. Introduce DP/Privacy principles related to the charter question on
> Privacy
>
> ·
> https://community.icann.org/download/attachments/66086765/Handout-RDS-WG-Call-3Oct2017.pdf
> [community.icann.org]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_download_attachments_66086765_Handout-2DRDS-2DWG-2DCall-2D3Oct2017.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=pSoLE7Y91MVjMmhJ-xbOcyqU8WJlZg4XQXqvhIgGu_0&s=gcPnRmTPeTHit2L-lYOL1zSYozVfG_wYMSWTdoBb40c&e=>
>
> ·        Copied extracted principles in handout, mapped to the charter
> question on privacy and associated sub-questions, to facilitate reference
> during deliberation on those questions
>
> ·        Note that at end of handout there appears the one WG agreement
> thus far under the Privacy charter question, which was limited to MPDS: 14.
> [For MPDS] Existing gTLD RDS policies do NOT sufficiently address
> compliance with applicable data protection, privacy, and free speech laws
> about purpose
>
> ·        Review of principles mapped to this charter question/sub
> question:
>
> ·        *5.1 Do existing gTLD registration directory services policies
> sufficiently address compliance with applicable data protection, privacy,
> and free speech laws within each jurisdiction?*
>
> b. Starting with Privacy sub-question 5.1, discuss impact on WG agreements
>
> ·        We are not restricted to EU focus of this input; the input does
> provide guidance with respect to that jurisdiction. Our task is to provide
> requirements for RDS that takes into consideration all jurisdictions.
>
> ·        “Within each jurisdiction” = within ALL jurisdictions of the
> world
>
> ·        Re: 3.e. The GDPR applies to all personal data, comments that
> GDPR does NOT apply to all personal data
>
> ·        Answer could be "yes" if taking into account procedure for
> dealing with conflicts with local law
>
> ·        Conflating two different issues: policy and implementation.
> Reading RAA it matches up with GDPR, but the way it's been implemented does
> not (e.g., purpose, consent). Need to ask whether policies address
> compliance or whether implementation of those policies do or do not
>
> ·        Comment: The policy as it is written is tightly bound to the
> extreme limitations of whois-the-protocol, which is part of the problem
>
> ·        For example, from RAA: *3.7.7.4 Registrar shall provide notice
> to each new or renewed Registered Name Holder stating:3.7.7.4.1 The
> purposes for which any Personal Data collected from the applicant are
> intended;3.7.7.4.2 The intended recipients or categories of recipients of
> the data (including the Registry Operator and others who will receive the
> data from Registry Operator);3.7.7.4.3 Which data are obligatory and which
> data, if any, are voluntary; and 3.7.7.4.4 How the Registered Name Holder
> or data subject can access and, if necessary, rectify the data held about
> them.3.7.7.5 The Registered Name Holder shall consent to the data
> processing referred to in Subsection 3.7.7.4.*
>
> ·        Is data escrow within the RDS's scope?
>
> ·        Do questions not line up with existing policy, producing answers
> that are not useful? This is why people are concerned about questions - if
> you ask the wrong question, you don't get helpful answers
>
> ·        Maybe the question should be "Do the existing implementations of
> gTLD policy sufficient address compliance....?
>
> ·        Comment: Current policies violate GDPR for EU citizens - example
> CL&D
>
> ·        Need to distinguish policies from implementation, which is
> informed by decisions about who the data controller is
>
> ·        Note that WSGR did not respond to the questions that are in this
> document - these are questions that the WG identified as sub-questions to
> help address the overarching charter questions. The principles that you see
> were derived from the memo as aiming to assist in responding to these
> questions.
>
> ·        Possible reframing of sub-question 5.1: *Do existing gTLD
> registration directory services policies and/or implementations PREVENT
> compliance with applicable data protection, privacy, and free speech laws
> within each jurisdiction?*
>
> ·        Would re-applying existing policy, using RDAP instead of WHOIS,
> shed any light on whether it's the policy or the implementation that
> prevent compliance with applicable laws?
>
> *Action Item:* WG leadership team to consider input received during
> today's meeting and consider how to move forward as today's meeting did not
> achieve the goal of moving forward on these questions.
>
> 6. Confirm action items and proposed decision points
>
> ·        *WG Agreement: *There is no requirement for the Original
> Registration Date as proposed by the EWG Final Report
>
> ·        *Action Item:* Staff to incorporate WG agreement in working
> draft.
>
> ·        *Action Item:* WG leadership team to consider input received
> during today's meeting and consider how to move forward as today's meeting
> did not achieve the goal of moving forward on these questions.
>
>  7. Confirm next WG meeting (Tuesday 10 October at 16.00 UTC)
>
>
>
> *Meeting Materials (all posted at
> https://community.icann.org/x/bWfwAw[community.icann.org]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_bWfwAw&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=pSoLE7Y91MVjMmhJ-xbOcyqU8WJlZg4XQXqvhIgGu_0&s=4KHESqzP9NmlfumEghxako3KC7O-WGxT-TXjxYSCgXc&e=>)*
>
> ·        *26 September Call poll (closed COB Saturday 30 September)*
>
> ·        *Link to participate*: https://www.surveymonkey.com/r/JM679DR
> [surveymonkey.com]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.surveymonkey.com_r_JM679DR&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=pSoLE7Y91MVjMmhJ-xbOcyqU8WJlZg4XQXqvhIgGu_0&s=80KHlbgsAUZ12B7MkyZpaxsYR1VNcDnNXeGyZU5JlII&e=>
>
> ·        *PDF of Poll Questions*: Poll-from-26SeptemberCall.pdf
> [community.icann.org]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_download_attachments_66086762_Poll-2Dfrom-2D26SeptemberCall.pdf-3Fversion-3D1-26modificationDate-3D1506462198000-26api-3Dv2&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=pSoLE7Y91MVjMmhJ-xbOcyqU8WJlZg4XQXqvhIgGu_0&s=Qh0wpwEJhnmMtn0WjUrDH--J5pDrK3j-XSvG9SkCoBE&e=>
>
> ·        *SurveyMonkey Summary Poll Results: *
> SummaryResults-Poll-from-26SeptCall.pdf[community.icann.org]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_download_attachments_66086765_SummaryResults-2DPoll-2Dfrom-2D26SeptCall.pdf-3Fversion-3D1-26modificationDate-3D1506882150000-26api-3Dv2&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=pSoLE7Y91MVjMmhJ-xbOcyqU8WJlZg4XQXqvhIgGu_0&s=YthnS4kRZFpcDW3V2wu5_4o2iacXHMPOm9-8pCh15Ts&e=>
>
> ·        *SurveyMonkey Raw Data Poll Results: *
> RawDataResults-Poll-from-26SeptCall.zip[community.icann.org]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_download_attachments_66086765_RawDataResults-2DPoll-2Dfrom-2D26SeptCall.zip-3Fversion-3D1-26modificationDate-3D1506882171000-26api-3Dv2&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=pSoLE7Y91MVjMmhJ-xbOcyqU8WJlZg4XQXqvhIgGu_0&s=GD_nKg2UD1C_5fk9Nu-8iWjbqBznGdRjovHat2Vsiz8&e=>
>  and XLS[community.icann.org]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_download_attachments_66086765_RawDataResults-2DPoll-2Dfrom-2D26SeptCall.xlsx-3Fversion-3D1-26modificationDate-3D1506882190000-26api-3Dv2&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=pSoLE7Y91MVjMmhJ-xbOcyqU8WJlZg4XQXqvhIgGu_0&s=sgYSSm5kVL1ORiWVra_xH_U_W8Szr60a2ofA5cMhAFA&e=>
>
> ·        *Annotated Survey Results: *
> AnnotatedResults-Poll-from-26SeptCall.pdf[community.icann.org]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_download_attachments_66086765_AnnotatedResults-2DPoll-2Dfrom-2D26SeptCall.pdf-3Fversion-3D1-26modificationDate-3D1506963736000-26api-3Dv2&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=pSoLE7Y91MVjMmhJ-xbOcyqU8WJlZg4XQXqvhIgGu_0&s=9PuB-N3Zz2zIaw8bKfiyR-TppIjiMhl7BO57I1_yQt8&e=>
>
> ·        WSGR memorandum:
> https://gnso.icann.org/en/drafts/wsgr-icann-memorandum-25sep17-en.pdf
> [gnso.icann.org]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_drafts_wsgr-2Dicann-2Dmemorandum-2D25sep17-2Den.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=pSoLE7Y91MVjMmhJ-xbOcyqU8WJlZg4XQXqvhIgGu_0&s=2doxZn4IxSgdwjUDmWxeg3UdGggQLYV-QKzqnRTNw_8&e=>
>
> ·        Principles from DP Expert and WSGR - 29 Sept 2017.docx
> [community.icann.org]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_download_attachments_66086765_Principles-2520from-2520DP-2520Expert-2520and-2520WSGR-2520-2D-252029-2520Sept-25202017.docx-3Fversion-3D1-26modificationDate-3D1506964656000-26api-3Dv2&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=pSoLE7Y91MVjMmhJ-xbOcyqU8WJlZg4XQXqvhIgGu_0&s=kmC6D7EdNgHgKZ9sUHlKD98-MbEeT1aDl_0l40vc74w&e=>
>
> ·        Handout-RDS-WG-Call-3Oct2017.pdf[community.icann.org]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_download_attachments_66086765_Handout-2DRDS-2DWG-2DCall-2D3Oct2017.pdf-3Fversion-3D1-26modificationDate-3D1506979314000-26api-3Dv2&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=pSoLE7Y91MVjMmhJ-xbOcyqU8WJlZg4XQXqvhIgGu_0&s=OmxAWn8um4-fiyFlpuMK8T1wlIQ1bz-1gXS4eIsBnRY&e=>
>
>
>
>
>
> _______________________________________________
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>
> --
>
> Jonathan Matkowsky
>
>
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> Jonathan Matkowsky
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> Jonathan Matkowsky
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