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

Fri Oct 27 16:36:00 UTC 2017

Yes Jonathan.  We decided not to do that in Abu Dhabi and instead to arrange a remote session with them later if needed.  Here are some reasons:

*	We felt that face-to-face time would be better used on making progress on our Charter tasks.
*	There will updates to ICANN org’s actions at ICANN60 so it may not be necessary for the WG to have its own session.
*	Finding schedule openings for ICANN senior leaders schedules at this late date can be near impossible.

Chuck 

From: jonathan matkowsky [mailto:jonathan.matkowsky at riskiq.net] 
Sent: Monday, October 23, 2017 9:00 PM
To: Chuck <consult at cgomes.com>; Greg Aaron <gca at icginc.com>; gnso-rds-pdp-wg at icann.org
Subject: Re: [gnso-rds-pdp-wg] ICANN Legal Opinion on GDPR - Part 1

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 <mailto: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 <mailto: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>  [mailto: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 <mailto: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] 
Sent: Thursday, October 19, 2017 7:25 AM
To: Chuck  <mailto:consult at cgomes.com> <consult at cgomes.com>; 'Alan Greenberg'  <mailto:alan.greenberg at mcgill.ca> <alan.greenberg at mcgill.ca>;
'GNSO RDS PDP'  <mailto: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> 
[mailto:gnso-rds-pdp-wg-bounces at icann.org] On Behalf Of Chuck
Sent: Thursday, October 19, 2017 8:51 AM
To: 'Alan Greenberg'  <mailto:alan.greenberg at mcgill.ca> <alan.greenberg at mcgill.ca>; 'GNSO RDS PDP'
 <mailto: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> 
[mailto: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  <mailto: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

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-- 

Jonathan Matkowsky

-- 

Jonathan Matkowsky

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