[gnso-rds-pdp-wg] ICANN Legal Opinion on GDPR - Part 1

Tue Oct 24 14:27:44 UTC 2017

there is a big difference between free privacy and privacy by default.

I just checked google.amsterdam and got a whois record that was not privacy
protected. so what was announced is a material change I think?

Dotzero's point is not about the blog post.  it was just a matter of when,
not if, a registry was going to do what was announced.  it is a very
rational reaction from network security professionals to consider what he
surfaced.  take for example Paul Vixie who blocks all of the .TK zone on
his home router.   .TK was free, it attracted a lot of badness and very
little usefulness, so people started blocking it en mass.  this situation
is no different.  whether true or not, there will be the assumption that a
private-by-default zone will attract bad actors more than others.  so
blocking is a rational consideration especially in geos where navigating to
or receiving traffic from .amsterdam is unlikely.

and has been already pointed out, shouting at or legislating-at network
security professionals in private corporations worldwide will have zero
impact on these kind of decisions.

as Sam pointed out, there are many rational actors in this debate and we
need to consider all the points of view, not just the ones we prefer.
Dotzero's comment is very accurate to one of those points of view, which I
can attest from first hand experience as well.

On Tue, Oct 24, 2017 at 7:07 AM, theo geurts <gtheo at xs4all.nl> wrote:

> Micheal,
>
> Perhaps I am missing something here, or I am taking things out of context.
>
> *One reaction (proposal that has actually been made this morning) to the
> going dark steps taken by Mijndomein is to add FRLregistry and dot
> Amsterdam to block lists or RPZ*
>
> I am reading that this morning a proposal is being made and I am assuming
> it is due to the blog article.
>
> If this was really an abusive TLD it would have had a track record since
> 2016.
>
> So this decision for a proposal is based on a blog article and not clear
> metrics that have been raising red flags?
> It would have been very logical for me, if during the last 11 months due
> to the privacy offered by .Amsterdam spam has been increasing each month.
>
> Again perhaps it is me, but it sounds if this blog article had not been
> posted in this specific list then today no proposal would have been made to
> add them to blocklists. Or did some guys woke up this morning and realized
> the missed a TLD for the last 11 months?
>
> Thanks,
>
> Theo
>
> On 24-10-2017 15:52, Dotzero wrote:
>
> Theo,
>
> You clearly don't understand the nature of the Internet - It is a network
> of networks. Some are public and some are private. Nobody is obliged to
> accept packets from anyone. I do blocking of traffic on a daily basis. It
> is normally at a very granular level based on malicious network traffic.
> Sometimes it is based on IP Address or ASN and sometimes it is based on
> domain. Sometimes we block activity based on email address. Sometimes it is
> based on first hand observation of activity and sometimes it is based on
> 3rd party information.
>
> There are all sorts of lists and inputs available that
> people/organizations use for all sorts of decisions. Your packets are not
> entitled to "due process" on someone else's private network.
>
> For example, some networks block traffic from Russia based on the fact
> that they have no legitimate traffic from that country and a high
> percentage of malicious traffic originates from there. You can get a list
> of all the ASNs associated with Russia. Or perhaps those networks don't
> like the fact that Russia invaded Crimea.
>
> One would hope that someone wouldn't block simply on the basis of a blog
> article, but if they choose to, why is that any of your business? Their
> decision is based on the lack of visibility into data points which they
> have learned are extremely useful in combating abuse. Lack of those data
> points may make their networks, their organization and (other) users at
> risk.
>
> Michael Hammer
>
> On Tue, Oct 24, 2017 at 9:30 AM, theo geurts <gtheo at xs4all.nl> wrote:
>
>> .Amsterdam been offering free privacy on a Registry level since 2016.
>>
>> It would be strange they now get added to blocklists or RPZ's due to a
>> blog article. If this is how these blocklists work than they should be
>> banned and made illegal as there is no real due process.
>>
>> Theo
>>
>> On 24-10-2017 15:24, Dotzero wrote:
>>
>> I don't think that is the reaction John was thinking of Volker.
>>
>> One reaction (proposal that has actually been made this morning) to the
>> going dark steps taken by Mijndomein is to add FRLregistry and dotAmsterdam
>> to block lists or RPZ. I don't know whether this proposal will gain
>> traction or not. Other potential reactions might include blocking domains
>> registered through particular registrars. There is certainly a potential
>> for balkanization of the Internet from these sorts of actions.
>>
>> Personally I'm taking a wait and see approach before deciding what to
>> propose internally within my organization for traffic originating from TLDs
>> or registrars who have gone dark.
>>
>> Michael Hammer
>>
>> On Tue, Oct 24, 2017 at 7:00 AM, Volker Greimann <
>> vgreimann at key-systems.net> wrote:
>>
>>> True. Legal Requirement (Action) -> Compliant implementation (Reaction)
>>>
>>> Seriously though, I see this as a legitimate proposal for a registry
>>> operator to both meet the needs of law enforcement to access this data and
>>> the data protection requirements in the jurisdictions that affect their
>>> business.
>>>
>>> ICANN should not have turned this into a compliance matter, but now that
>>> they did, It is good to see them stand up and defend their need to remain
>>> compliant with applicable laws. I see this as a model of how all Whois data
>>> for European data subjects will likely look in less than 6 months.
>>>
>>> Best,
>>>
>>> Volker
>>>
>>>
>>>
>>> Am 24.10.2017 um 12:42 schrieb John Bambenek:
>>>
>>> Every action has an equal and opposite reaction.
>>>
>>> --
>>> John Bambenek
>>>
>>> On Oct 24, 2017, at 11:48, Volker Greimann <vgreimann at key-systems.net>
>>> wrote:
>>>
>>> Fighting the good fight.
>>>
>>> Am 24.10.2017 um 11:32 schrieb Kris Seeburn:
>>>
>>> This might be interesting news….
>>>
>>> http://domainincite.com/22218-amsterdam-refuses-to-publish-w
>>> hois-records-as-gdpr-row-escalates
>>>
>>>
>>>
>>> On Oct 24, 2017, at 07:59, jonathan matkowsky <
>>> jonathan.matkowsky at riskiq.net> wrote:
>>>
>>> Hi, Chuck, Regarding below, has a decision been made by leadership
>>> whether to invite the org folks to meet with us in Abu Dhabi as Greg A. was
>>> suggesting?
>>>
>>> Thanks
>>> Jonathan
>>>
>>> On Fri, Oct 20, 2017 at 2:46 AM jonathan matkowsky <
>>> jonathan.matkowsky at riskiq.net> wrote:
>>>
>>>> The other week I was asking this group about the significance of the
>>>> ePrivacy Directive and asked to get some feedback.
>>>>
>>>> The memo says:
>>>>
>>>> While our memorandum series will primarily focus on the GDPR, we will
>>>> also address other relevant pieces of EU legislation that may have effect
>>>> on the processing of personal data through the Whois services, such as but
>>>> not limited to the EU ePrivacy Directive 2002/58/EC and the proposed new EU
>>>> ePrivacy Regulation aimed to replace the said directive in May 2018.
>>>>
>>>> This is exactly what I was asking to understand.
>>>>
>>>> That said, I do want to continue our work, but I also have limited
>>>> resources—as do we all—so the sooner we can get this information, the
>>>> better. It may help us in deciding the most efficient way forward, or at
>>>> least help confirm we aren’t wasting our time in how we move forward here?
>>>>
>>>> Thanks
>>>> Jonathan
>>>>
>>>> On Thu, Oct 19, 2017 at 9:40 AM Greg Aaron <gca at icginc.com> wrote:
>>>>
>>>>> Dear Chuck:
>>>>>
>>>>>
>>>>>
>>>>> ICANN meetings are for information-sharing.  And since we have two
>>>>> efforts working on some of the exact same issues,  I suggest that some
>>>>> info-sharing could be very helpful to our volunteers.
>>>>>
>>>>>
>>>>>
>>>>> The ICANN Org effort with Hamilton is clearly going to be more
>>>>> comprehensive than the narrow effort our WG has received from Wilson
>>>>> Sonsini.  And as you know, the Org effort will set a precedent which will
>>>>> be important for our WG to understand.
>>>>>
>>>>>
>>>>>
>>>>> The new memo, and those to come, are about the impact of GDPR on
>>>>> registration data and WHOIS.  I draw your attention to the end of the blog
>>>>> post:
>>>>>
>>>>> “As a reminder, this legal analysis is intended to serve as building
>>>>> block for community discussions about how to approach GDPR issues in the
>>>>> domain name space. [WHOIS.]
>>>>>
>>>>> Here's where we need help from the multistakeholder community:
>>>>>
>>>>> Please review the initial legal analysis and provide feedback. This
>>>>> includes identifying possible questions, and how best to interact with data
>>>>> protection agencies and others to get to the next step of the analysis.
>>>>>
>>>>> It will be helpful to receive your feedback at the earliest
>>>>> opportunity, so as to inform the upcoming discussions at ICANN60, and to
>>>>> feed into future iterations of the legal analysis.”
>>>>>
>>>>>
>>>>>
>>>>> The RDS WG is the main place where the multistakeholder community is
>>>>> considering WHOIS.   So one would think that ICANN Org would have already
>>>>> reached out to our WG.   I am surprised that it has not.   So, I think it’s
>>>>> appropriate for us to invite the Org folks in.  The goal is to understand
>>>>> that work and ask questions.  Maybe the RDS WG could then formulate some
>>>>> feedback as requested above.  After all, we’ve been thinking about this
>>>>> stuff for almost two years now..
>>>>>
>>>>>
>>>>>
>>>>> As part of the briefing, it would be good to hear about this effort's
>>>>> schedule and workplan.  The memo says: "We intend to provide a series of
>>>>> memorandums, which will address different aspects of the issue and where
>>>>> the  scope and topics of each such memorandum will be discussed and agreed
>>>>> with ICANN. We understand that ICANN intends to make each memorandum
>>>>> publicly available."  I do not see any of those details in the memo or
>>>>> blog.  For example, what topics will be the subjects of the forthcoming
>>>>> memos?  There’s clearly a plan for that.
>>>>>
>>>>>
>>>>>
>>>>> I have no idea of any of that will come out in the GDPR session on
>>>>> Thursday, but since that consists of panel presentations, I am unsure and
>>>>> would prefer that our WG definitely get a briefing and a chance to ask
>>>>> questions.
>>>>>
>>>>>
>>>>>
>>>>> All best,
>>>>>
>>>>> --Greg
>>>>>
>>>>>
>>>>>
>>>>> *From:* gnso-rds-pdp-wg-bounces at icann.org [mailto:gnso-rds-pdp
>>>>> -wg-bounces at icann.org] *On Behalf Of *Stephanie Perrin
>>>>> *Sent:* Thursday, October 19, 2017 11:19 AM
>>>>> *To:* gnso-rds-pdp-wg at icann.org
>>>>>
>>>>>
>>>>> *Subject:* Re: [gnso-rds-pdp-wg] ICANN Legal Opinion on GDPR - Part 1
>>>>>
>>>>>
>>>>>
>>>>> I am curious as to how the questions are being framed.   Who is the
>>>>> client, ICANN the MS body, ICANN the CEO and staff (who have been found to
>>>>> be a co-controller and therefore have an interest in avoiding fines) or
>>>>> ICANN the Board.
>>>>>
>>>>> There are different interests at stake here, I  think it would be
>>>>> useful to get a fuller understanding of how Teresa Swineheart is handling
>>>>> the development of questions.
>>>>>
>>>>> Stephanie Perrin
>>>>>
>>>>>
>>>>>
>>>>> On 2017-10-19 10:43, Chuck wrote:
>>>>>
>>>>> Greg,
>>>>>
>>>>>
>>>>>
>>>>> Having just finished reading the Hamilton memo, I don't understand why you
>>>>>
>>>>> think the WG needs a presentation?  What would a presentation from Teresa or
>>>>>
>>>>> other ICANN staff person provide us that we couldn't get from the memo
>>>>>
>>>>> itself and other sources such as the ICANN Blog, etc.?
>>>>>
>>>>>
>>>>>
>>>>> Can you identify any advice from Hamilton that would supplant work we have
>>>>>
>>>>> been doing?  If so, please identify it.
>>>>>
>>>>>
>>>>>
>>>>> In my opinion:
>>>>>
>>>>> - The advice of ways forward fits nicely into our policy development
>>>>>
>>>>> processes.
>>>>>
>>>>> - The Hamilton Memo confirms much of what we already heard from the DP
>>>>>
>>>>> experts and Wilson Sonsini so we now have it from three separate sources.
>>>>>
>>>>> - You are absolutely that we "need to understand and track the legal
>>>>>
>>>>> advice being made" and that it overlaps what we are doing but I think that
>>>>>
>>>>> will help us.
>>>>>
>>>>>
>>>>>
>>>>> Chuck
>>>>>
>>>>>
>>>>>
>>>>> -----Original Message-----
>>>>>
>>>>> From: Greg Aaron [mailto:gca at icginc.com <gca at icginc.com>]
>>>>>
>>>>> Sent: Thursday, October 19, 2017 7:25 AM
>>>>>
>>>>> To: Chuck <consult at cgomes.com> <consult at cgomes.com>; 'Alan Greenberg' <alan.greenberg at mcgill.ca> <alan.greenberg at mcgill.ca>;
>>>>>
>>>>> 'GNSO RDS PDP' <gnso-rds-pdp-wg at icann.org> <gnso-rds-pdp-wg at icann.org>
>>>>>
>>>>> Subject: RE: [gnso-rds-pdp-wg] ICANN Legal Opinion on GDPR - Part 1
>>>>>
>>>>>
>>>>>
>>>>> Dear WG  leadership:
>>>>>
>>>>>
>>>>>
>>>>> As we expected, this ICANN Org effort will have a profound effect on our
>>>>>
>>>>> work.  We will need to understand and track the legal advice being made,
>>>>>
>>>>> which overlaps with and in some places may supplant work we have been doing.
>>>>>
>>>>> And the memo's "Finding New Ways Forward"  section (3.9) provides advice for
>>>>>
>>>>> the policy-making process.  Clearly our WG needs (deserves) a presentation
>>>>>
>>>>> at Abu Dhabi from Teresa Swinehart, who is heading up this effort.
>>>>>
>>>>>
>>>>>
>>>>> Could this be done at the WG meeting on Wednesday 1 November?
>>>>>
>>>>> Wednesday will be better attended, both in-person and remotely.  (Some
>>>>>
>>>>> members may still be in transit during the WG's early Saturday morning
>>>>>
>>>>> meeting.  And the Saturday meeting is at a challenging time for those
>>>>>
>>>>> participating remotely -- ~6:30 a.m. Saturday morning in Europe /  12:30
>>>>>
>>>>> a.m. Saturday East Coast USA.)
>>>>>
>>>>>
>>>>>
>>>>> As part of the briefing, it would be good to hear about this effort's
>>>>>
>>>>> schedule, workplan, and immediate next steps.  The memo says: "We intend to
>>>>>
>>>>> provide a series of memorandums, which will address different aspects of the
>>>>>
>>>>> issue and where the  scope and topics of each such memorandum will be
>>>>>
>>>>> discussed and agreed with ICANN. We understand that ICANN intends to make
>>>>>
>>>>> each memorandum publicly available."
>>>>>
>>>>>
>>>>>
>>>>> All best,
>>>>>
>>>>> --Greg
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
>>>>> -----Original Message-----
>>>>>
>>>>> 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 Chuck
>>>>>
>>>>> Sent: Thursday, October 19, 2017 8:51 AM
>>>>>
>>>>> To: 'Alan Greenberg' <alan.greenberg at mcgill.ca> <alan.greenberg at mcgill.ca>; 'GNSO RDS PDP'
>>>>>
>>>>> <gnso-rds-pdp-wg at icann.org> <gnso-rds-pdp-wg at icann.org>
>>>>>
>>>>> Subject: Re: [gnso-rds-pdp-wg] ICANN Legal Opinion on GDPR - Part 1
>>>>>
>>>>>
>>>>>
>>>>> I want to call attention to the following paragraph:
>>>>>
>>>>>
>>>>>
>>>>> "The memo highlights the complexity of these issues in the domain name
>>>>>
>>>>> space, and concludes that the current open, publicly available WHOIS
>>>>>
>>>>> services cannot remain unchanged. The WHOIS system has to become adaptable
>>>>>
>>>>> to address the GDPR from the European perspective, as well as other changing
>>>>>
>>>>> regulations around the world."
>>>>>
>>>>>
>>>>>
>>>>> After input from Data Protection experts, the Wilson Sonsini memo and now
>>>>>
>>>>> this memo, do any in the WG disagree with this statement?
>>>>>
>>>>>
>>>>>
>>>>> Chuck
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
>>>>> -----Original Message-----
>>>>>
>>>>> 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 Alan Greenberg
>>>>>
>>>>> Sent: Thursday, October 19, 2017 5:04 AM
>>>>>
>>>>> To: GNSO RDS PDP <gnso-rds-pdp-wg at icann.org> <gnso-rds-pdp-wg at icann.org>
>>>>>
>>>>> Subject: Re: [gnso-rds-pdp-wg] ICANN Legal Opinion on GDPR - Part 1
>>>>>
>>>>>
>>>>>
>>>>> Full Blog post is at
>>>>>
>>>>> https://www.icann.org/news/blog/data-protection-and-privacy-update.  Alan
>>>>>
>>>>>
>>>>>
>>>>> At 19/10/2017 12:23 AM, Alan Greenberg wrote:
>>>>>
>>>>> Perhaps it has already been posted, but if not, ICANN has received the
>>>>>
>>>>> first part of the independent legal analysis of the GDPR in relation to
>>>>>
>>>>> WHOIS that had been commissioned.
>>>>>
>>>>>
>>>>>
>>>>> It can be found at
>>>>>
>>>>> https://www.icann.org/en/system/files/files/gdpr-memorandum-part1-16oct
>>>>>
>>>>> 17-e
>>>>>
>>>>> n.pdf.
>>>>>
>>>>>
>>>>>
>>>>> Alan
>>>>>
>>>>>
>>>>>
>>>>> _______________________________________________
>>>>>
>>>>> gnso-rds-pdp-wg mailing list
>>>>>
>>>>> gnso-rds-pdp-wg at icann.org
>>>>>
>>>>> https://mm.icann.org/mailman/listinfo/gnso-rds-pdp-wg
>>>>>
>>>>>
>>>>>
>>>>> _______________________________________________
>>>>>
>>>>> gnso-rds-pdp-wg mailing list
>>>>>
>>>>> gnso-rds-pdp-wg at icann.org
>>>>>
>>>>> https://mm.icann.org/mailman/listinfo/gnso-rds-pdp-wg
>>>>>
>>>>>
>>>>>
>>>>> _______________________________________________
>>>>>
>>>>> gnso-rds-pdp-wg mailing list
>>>>>
>>>>> gnso-rds-pdp-wg at icann.org
>>>>>
>>>>> https://mm.icann.org/mailman/listinfo/gnso-rds-pdp-wg
>>>>>
>>>>>
>>>>> _______________________________________________
>>>>> gnso-rds-pdp-wg mailing list
>>>>> gnso-rds-pdp-wg at icann.org
>>>>> https://mm.icann.org/mailman/listinfo/gnso-rds-pdp-wg
>>>>
>>>> --
>>>> Jonathan Matkowsky
>>>>
>>> --
>>> Jonathan Matkowsky
>>>
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>>>
>>>
>>>
>>>
>>> Kris Seeburn
>>> seeburn.k at gmail.com
>>>
>>>    - www.linkedin.com/in/kseeburn/
>>>
>>>
>>> <KeepItOn_Social_animated.gif>
>>>
>>>
>>>
>>> _______________________________________________
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>>>
>>>
>>> --
>>> Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung.
>>>
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>>>
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>>>
>>> Mit freundlichen Grüßen,
>>>
>>> Volker A. Greimann
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>>>
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>>
>>
>>
>> _______________________________________________
>> gnso-rds-pdp-wg mailing listgnso-rds-pdp-wg at icann.orghttps://mm.icann.org/mailman/listinfo/gnso-rds-pdp-wg
>>
>>
>>
>
>
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