[gnso-rds-pdp-wg] Legal basis vs. lawful

Holly Raiche h.raiche at internode.on.net
Mon Feb 12 20:13:26 UTC 2018 

Folks

Could we please stop pretending that this is only about the GDPR and the EU.  Yes, the GDPR is perhaps the most stringent on data protection.  But increasingly, many other jurisdictions are enacting similar legislation.  Just north of the US, Canada has very similar rules about data protection, or on the other side of the world, so does Australia (and many other countries in the Asia Pacific region as well).  So increasingly, the US will be the odd man out on this issue.  

And there are also concerns about legal vs natural persons.  In some cases (not just a few), the registrant may be a legal entity - a small business, where the details for contact are those of the registrant - personal information.  So the distinction, in such cases, could lead to the publication of personal information of the legal entity.

Finally, please draw a distinction between collection for legitimate purposes, and making that information public.  There is no question that, particularly in many cases, registries/registrars need to contact registrants.   Cases of misuse/abuse of the name are also situations where we all expect contact information will be accessible.  But  that is a long way from having all RDS data freely available to all, as is now the case.

Holly


On 13 Feb 2018, at 6:27 am, Michael Palage <michael at palage.com> wrote:

> Greg/John,
>  
> I will respectfully push back on your legal over simplification of the GDPR.
>  
> The exterritorial aspect of the GDPR set forth in Article 3 is NOT just limited to EU residents/citizens.  As Michele has noted in the past, the GDPR requires BlackKnight as an Irish legal entity to protect all of its customers data (EU/Non-EU) in compliance with GDPR, as well as US entities that target and conduct business within the EU.
>  
> Now your points about the distinction between natural and legal persons is a fair one and one that has been noted in EU and Art 29 communications.  Could you please share the basis of your proposition that 97% of all domain name registrations are registered by legal entities.
>  
> As I have note previously the long term viability of the ICANN multi-stakeholder model is at risk as national governments continue to pass national laws that impact the operation of the Internet.  However, the European Union is NOT alone in advancing Privacy Legislation, in fact data localization is perhaps the next biggest lurking threat to the domain name system. 
>  
> Best regards,
>  
> Michael
>  
>  
>  
>  
>  
>  
> From: gnso-rds-pdp-wg [mailto:gnso-rds-pdp-wg-bounces at icann.org] On Behalf Of John Horton via gnso-rds-pdp-wg
> Sent: Monday, February 12, 2018 1:22 PM
> To: Greg Aaron <gca at icginc.com>
> Cc: gnso-rds-pdp-wg at icann.org
> Subject: Re: [gnso-rds-pdp-wg] Legal basis vs. lawful
>  
> I think Greg is right on. There's simply no justification to force a law that is only intended to apply to a) EU residents/citizens that are b) natural persons not using the domain name for commercial purposes, to the remaining...what? 97% - 99% of the world's registrant population? That would be a balanced way to implement all of this. 
> 
> John Horton
> President and CEO, LegitScript
> 
>  
> Follow LegitScript: LinkedIn  |  Facebook  |  Twitter  |  Blog  |  Newsletter
>  
> 
>  
> On Mon, Feb 12, 2018 at 9:57 AM, Greg Aaron <gca at icginc.com> wrote:
> I don’t know if we arrive at the same place. 
>  
> GDPR is based on one principle.  It states what is legal.  It's explicit about what you _are allowed to do_; granted there’s some flexibility and room for interpretation.   It’s like saying what’s inside a box.
>  
> U.S. law is one based on different principles.  AFAIK U.S. consumer protection law does not enumerate specifically what is lawful.  Instead it tends to state what is illegal, what you are _not allowed to do_.   It’s like saying what’s outside the box.   The U.S. doesn’t have something like GDPR that spells out legal bases for collecting data, i.e. the enumerated allowable reasons.  Instead the trade and consumer protection laws basically say: entities have the right to form contracts between themselves, they should live up to the contract, don’t surprise people, don’t do certain dishonest things.  
>  
> Here's the problem: if one makes the GDPR principle the ICANN standard and you apply it to all registrations, then practices that are allowable in one place under the law (like the U.S.) would no longer be allowed there by ICANN policy.   ICANN would be choosing one legal approach or regime for everyone in the world. 
>  
> The alternative is to apply the GDRP only to those that it is designed to protect:  registrants in the EU.
>  
> For example, there’s nothing in U.S. law that prohibits a U.S. registrar from having a contract that says publication of full contact data in WHOIS is  a condition of registering a domain name if you are a registrant in the U.S.
>  
> See https://iapp.org/news/a/explaining-the-gdpr-to-an-american/  for more.
>  
>  
>  
> From: gnso-rds-pdp-wg [mailto:gnso-rds-pdp-wg-bounces at icann.org] On Behalf Of Silver, Bradley via gnso-rds-pdp-wg
> Sent: Friday, February 9, 2018 2:54 PM
> To: Volker Greimann <vgreimann at key-systems.net>; gnso-rds-pdp-wg at icann.org
> 
> Subject: Re: [gnso-rds-pdp-wg] Legal basis vs. lawful
>  
> It is true that the GDPR is prescriptive, although also rather open-ended (hence our current pickle).  But regardless of the term we use, don’t we arrive at the same place:  which is that if something that requires a legal basis is done without one, it will be unlawful?  Using Kathy’s example, if data is processed without complying with minimization or purpose principles, will such processing not run afoul of the law, and hence be unlawful? 
>  
> There are important distinctions between the meaning of “legal basis” which implies that a law requires something to be affirmatively present, versus “lawful”, which means that something is not prohibited by law.  Ultimately though, isn’t “lawfulness”, the same end point, regardless? 
>  
> From: gnso-rds-pdp-wg [mailto:gnso-rds-pdp-wg-bounces at icann.org] On Behalf Of Volker Greimann
> Sent: Friday, February 09, 2018 11:27 AM
> To: gnso-rds-pdp-wg at icann.org
> Subject: Re: [gnso-rds-pdp-wg] Legal basis vs. lawful
>  
> I do not see how. Kathy's analysis seems sound. The flexibility within the GDPR still only allows processing in very specific cicumstances, all of which are listed in the GDPR.
> 
>  
> Am 09.02.2018 um 16:45 schrieb Victoria Sheckler:
> Kathy’s analysis breaks down on a practical level when one looks at the GDPR and what it says about when data can be processed.  The GDPR allows for flexibility for what can be processed and when, and kathy’s analysis overlooks that point.
>  
> From: gnso-rds-pdp-wg [mailto:gnso-rds-pdp-wg-bounces at icann.org] On Behalf Of Kathy Kleiman
> Sent: Thursday, February 8, 2018 7:07 PM
> To: gnso-rds-pdp-wg at icann.org
> Subject: Re: [gnso-rds-pdp-wg] Legal basis vs. lawful
>  
> Tx for the invitation to join, Chuck, and following up on the discussion of Sam and Tapani, let me add that criteria for processing must be clearer than something broadly within ICANN's mission statement and something permissible somewhere. The requirements under law are express and concrete.
> Specifically, GDPR Article 5(1)(b and c) states:
> 
> Personal data shall be: 
> 2.    "collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes" (the "purpose limitation") AND 
> 3.    "adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed" (the "data minimisation" requirement).  [underline added]
> 
> Thus, our first criteria of "consistent with ICANN's mission," is only the first step and we need to go further than even the 3 criteria we are discussing..
> 
> Second, lawful and legal enter us into a debate over words and I have to agree with Sam and Tapani's analysis and let me add some of my own. 
> 
> "Legal" is the term we use for actions expressly allowed under law. How we process personal data under the GDRP falls into this category -- of processing expressly allowed under law. Whereas the term lawful is used for a much broader category of actions which are generally permissible and allowable.
> 
> The term "legal" is much more consistent with our criteria statement because the processing of personal data by ICANN must clearly have a valid legal basis as expressly defined by data protection laws. 
> 
> Best regards, 
> Kathy 
> 
> On 2/7/2018 10:53 AM, Sam Lanfranco wrote:
> 
> Thanks Tapani,
> 
> I will extract from your longer message. 
> I deliberately kept my brief and less technical.
> I think we are in agreement here and I support your position.
> 
> On 2/7/2018 1:07 AM, Tapani Tarvainen wrote:
> 
> The key distinction, as I understand it, is that "lawful" would be
>  defined by the negative, everything that some law does not prohibit,
> where as "legal basis" is defined by the positive, only things whose 
> justification can be explicitly derived from law. 
> 
>   <......>
> 
> So I would prefer "legal basis" specifically in this sense: that any processing
>  would have to be explicitly based on one of the criteria, or bases, as listed 
> in GDPR Article 6, or similar explicit justification in other data protection legislation. 
> 
> 
> 
> 
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