[gnso-rds-pdp-wg] Legal Inquiry to ICANN

[Rubens Kuhl]

> Em 14 de fev de 2018, à(s) 21:01:000, Michael Palage <Michael at palage.com> escreveu:
> 
> Chuck,
> 
> As one of the original authors to the this extraterritorial thread, I welcome all the legal interpretation by both lawyers and non-lawyers in connection the scope to Article 3 of the GDPR. I  think it is fair to say there is a clear lack of consensus.  Therefore I would like to propose the following.  Allow the group to comprise a list of legal questions regarding this issue and forward it to ICANN.org <http://icann.org/> and ask of them the following:
> 
> Provide the list of questions to Hamilton for a response
> Have ICANN legal provide a response to these same questions
> 
> The reason for Number 2 is that John Jeffrey made very clear in the last webinar that he does NOT agree with all of the Hamilton analysis.  I think us ICANN volunteers toiling away in the PDP coal mine are entitled/deserve an answer to these questions to allow us to move forward with more productive work It does the group no good for a bunch of well-intentioned individuals lacking the requisite legal training to debate these issues.

While I support the proposal, I believe that we should do a full description of a trial scenario and ask questions on that scenario. Could be something like this:

"Scenario 1: Registrar X, not based in the EU, sells a number of domains in TLD .Y from registry Z, also not based in EU. When the registrant address is on the EU, registrar doesn't send [ ... data fields ] to registry and both registrar and registry WHOIS services do not display them. All other data is sent to registry and published.
Scenario 2: Registrar X, not based in the EU, sells a number of domains in TLD .Y from registry Z, also not based in EU. When the registrant address is on the EU or declares to be a citizen of an EU country, registrar doesn't send [ ... data fields ] to registry and both registrar and registry WHOIS services do not display them.  All other data is sent to registry and published.
Scenario 3: Registrar X, not based in the EU, sells a number of domains in TLD .Y from registry Z, also not based in EU. When the registrant address is on the EU, registrar send [ ... data fields ] to registry but requests that to not be displayed. Both registrar and registry WHOIS services do not display them. Data is always sent to registry no matter what.
(...)
Scenario n: Registrar X, not based in the EU, sells a number of domains in TLD .Y from registry Z, also not based in EU. When the IP address of the registration on registrar's web portal is in the EU, registrar send [ ... data fields ] to registry but requests that to not be displayed. Both registrar and registry WHOIS services do not display them. Data is always sent to registry no matter what.
(...)
(... other combinations)"

As for asking ICANN, I believe we should ask a more fundamental question before that: "Is ICANN a data controller, co-controller or joint controller regarding RDS data fields ?". If their answer is no, their opinion is moot since they won't be able to enforce anything not being a controller. If their answer is yes, then we can and should ask a bunch of questions to them.


Rubens



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