[gnso-rds-pdp-wg] Krebs On Security article RE whois and GDRP

Rubens Kuhl rubensk at nic.br
Sat Feb 17 21:26:29 UTC 2018 

Chuck,

The part 2 of the Hamilton paper suggested that exact risk. But regardless of that scenario, for registries specifically it would be very challenging to do something for its EU-based registrars and something different for its non-EU registrars and also be compliant with the non-discriminatory access clause in registry agreements. So I see less registries taking EU origin as an aspect than registrars, since registrars don't have non-discriminatory access rules to follow.


Rubens


> On 17 Feb 2018, at 17:03, <consult at cgomes.com> <consult at cgomes.com> wrote:
> 
> Thanks Raoul.  So you think that a non-European registrar or registry could be fined if it violated the GDPR for a non-European natural person?
> 
> Chuck
> 
> From: Raoul Plommer [mailto:plommer at gmail.com <mailto:plommer at gmail.com>]
> Sent: Saturday, February 17, 2018 10:57 AM
> To: consult at cgomes.com <mailto:consult at cgomes.com>
> Cc: Ayden Férdeline <icann at ferdeline.com <mailto:icann at ferdeline.com>>; Paul Keating <paul at law.es <mailto:paul at law.es>>; RDS PDP WG <gnso-rds-pdp-wg at icann.org <mailto:gnso-rds-pdp-wg at icann.org>>
> Subject: Re: [gnso-rds-pdp-wg] Krebs On Security article RE whois and GDRP
> 
>> I don't understand how the GDPR could
>> protect non-European natural persons dealing with non-European companies.
> 
> Unfortunately, not all laws can be that well enforced, but they are nevertheless in place. In this particular example, I think there's the massive threat of getting fined, that will give the companies the right incentive to comply. Banks and financial services in tax-havens didn't expect to get caught either.
> 
> If a non-European company complies with the GDPR because of its European customers, then its non-European are extended the same protections through interfaces and access.
> 
> -Raoul
> 
> On 17 February 2018 at 20:20, <consult at cgomes.com <mailto:consult at cgomes.com>> wrote:
>> As one who is trying to understand the GDPR, the key condition for these recitals is ‘processed within the legal boundaries of the European Union’.
>> 
>> Chuck
>> 
>> From: gnso-rds-pdp-wg [mailto:gnso-rds-pdp-wg-bounces at icann.org <mailto:gnso-rds-pdp-wg-bounces at icann.org>] On Behalf Of Ayden Férdeline
>> Sent: Friday, February 16, 2018 12:27 PM
>> To: Paul Keating <paul at law.es <mailto:paul at law.es>>
>> 
>> Cc: RDS PDP WG <gnso-rds-pdp-wg at icann.org <mailto:gnso-rds-pdp-wg at icann.org>>
>> Subject: Re: [gnso-rds-pdp-wg] Krebs On Security article RE whois and GDRP
>> 
>> I interpret the GDPR as applying to anyone, residing anywhere, regardless of his or her citizenship, whose data is processed within the legal boundaries of the European Union.
>> 
>> Recital 2 <http://www.privacy-regulation.eu/en/recital-2-GDPR.htm> (emphasis added) states: "The principles of, and rules on the protection of natural persons with regard to the processing of their personal data should, whatever their nationality or residence, respect their fundamental rights and freedoms, in particular their right to the protection of personal data."
>> 
>> Recital 4 <http://www.privacy-regulation.eu/en/recital-4-GDPR.htm> (emphasis added) states: "The processing of personal data should be designed to serve mankind."
>> 
>> Recital 14 <http://www.privacy-regulation.eu/en/recital-14-GDPR.htm> (emphasis added) states: "The protection afforded by this Regulation should apply to natural persons, whatever their nationality or place of residence, in relation to the processing of their personal data."
>> 
>> Ayden
>> 
>> 
>> -------- Original Message --------
>> On 16 February 2018 9:07 PM, Paul Keating <paul at law.es <mailto:paul at law.es>> wrote:
>> 
>>> John,
>>> 
>>> Given that the GDPR only applies to private data of private individuals residing in the EU, i dount you will ever see such a statement.
>>> 
>>> Sent from my iPad
>>> 
>>> On 16 Feb 2018, at 21:02, John Horton via gnso-rds-pdp-wg <gnso-rds-pdp-wg at icann.org <mailto:gnso-rds-pdp-wg at icann.org>> wrote:
>>>> Ha, thanks Michele, and sorry for the timing! (Hope your answer was written over a bottle of red wine, preferably an Oregon pinot.)
>>>> 
>>>> Let me clarify my question, and feel free to defer the answer if next week is better. I'm asking if registrars have received specific guidance, or can point to anything specific in the GDPR or any written document, indicating that you have to provide GDPR protections to all of your customers, even if they aren't in scope. In other words, I'm looking for a very clear statement along these lines from a DPA:
>>>> 
>>>>> As an EU company, even if your customer is a natural person in the US, you must provide them the same rights under the GDPR that an EU natural person would receive. Failure to do so is non-compliant with the GDPR.
>>>>> 
>>>> Obviously, the exact wording my differ, but I'm trying to challenge your statement that "As an Irish company all our clients have to be handled under GDPR." If that's true as a legal requirement, I think it's important for the security/compliance community to be aware of that...if it's not, perhaps that opens up some more granular approaches that can satisfy both sides.
>>>> 
>>>> John Horton
>>>> President and CEO, LegitScript
>>>> <image001.jpg>
>>>> 
>>>> Follow LegitScript: LinkedIn <http://www.linkedin.com/company/legitscript-com>  |  Facebook <https://www.facebook.com/LegitScript>  |  Twitter <https://twitter.com/legitscript>  |  Blog <http://blog.legitscript.com/>  |  Newsletter <http://go.legitscript.com/Subscription-Management.html>
>>>> 
>>>> <image002.jpg><image003.jpg>
>>>> 
>>>> On Fri, Feb 16, 2018 at 11:53 AM, Michele Neylon - Blacknight <michele at blacknight.com <mailto:michele at blacknight.com>> wrote:
>>>>> John
>>>>> 
>>>>> Of course you would wait until a Friday evening to ask me this ..
>>>>> 
>>>>> Anyway ..
>>>>> 
>>>>> As a company in the EU we have to do everything through the lens of GDPR.
>>>>> 
>>>>> That does not mean that a company will get the same treatment as a private individual.
>>>>> 
>>>>> What it does mean is that we (and other EU based registrars and registries) have to consider whether or not there is personal information in the currently public whois information. I’m not 100% sure yet what the best way of dealing with that is.
>>>>> While we can ask new clients things during signup, it’s going to be significantly harder to get a response from the existing ones.
>>>>> 
>>>>> Regards
>>>>> 
>>>>> Michele
>>>>> 
>>>>> 
>>>>> --
>>>>> Mr Michele Neylon
>>>>> Blacknight Solutions
>>>>> Hosting, Colocation & Domains
>>>>> https://www.blacknight.com <https://www.blacknight.com/>
>>>>> https://blacknight.blog <https://blacknight.blog/> /
>>>>> http://ceo.hosting/ <http://ceo.hosting/>
>>>>> Intl. +353 (0) 59  9183072 <tel:+353%2059%20918%203072>
>>>>> Direct Dial: +353 (0)59 9183090 <tel:+353%2059%20918%203090>
>>>>> -------------------------------
>>>>> Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty
>>>>> Road,Graiguecullen,Carlow, R93 X265
>>>>> ,Ireland  Company No.: 370845
>>>>> From: John Horton <john.horton at legitscript.com <mailto:john.horton at legitscript.com>>
>>>>> Date: Friday 16 February 2018 at 19:28
>>>>> To: Michele Neylon <michele at blacknight.com <mailto:michele at blacknight.com>>
>>>>> Cc: "benny at nordreg.se <mailto:benny at nordreg.se>" <benny at nordreg.se <mailto:benny at nordreg.se>>, RDS PDP WG <gnso-rds-pdp-wg at icann.org <mailto:gnso-rds-pdp-wg at icann.org>>
>>>>> Subject: Re: [gnso-rds-pdp-wg] Krebs On Security article RE whois and GDRP
>>>>> 
>>>>> Michele,
>>>>> 
>>>>> Let me dig in a bit on one question there -- actually curious about this. You indicated "As an Irish company all our clients have to be handled under GDPR." So, for example, let's say that I transferred my company's domain name (obviously, we're a legal person, and we're domiciled in the US and registered here) to Blacknight. I think you'd agree we're not the intended beneficiary of the GDPR. My specific question for you is: Is there written guidance somewhere indicating that you do, in fact, have to provide me GDPR protections? That your policies have to apply to me? If there's some language out there specifically indicating that, it would be helpful to see that. I didn't see that in the Hamilton memo (perhaps I'm missing it) nor in the text of the GDPR (but again, perhaps I'm missing it). Let me know if my question doesn't make sense.
>>>>> 
>>>>> John Horton
>>>>> President and CEO, LegitScript
>>>>> <image001.jpg>
>>>>> 
>>>>> Follow LegitScript: LinkedIn <http://www.linkedin.com/company/legitscript-com>  |  Facebook <https://www.facebook.com/LegitScript>  |  Twitter <https://twitter.com/legitscript>  |  Blog <http://blog.legitscript.com/>  |  Newsletter <http://go.legitscript.com/Subscription-Management.html>
>>>>> 
>>>>> <image002.jpg><image003.jpg>
>>>>> 
>>>>> On Fri, Feb 16, 2018 at 11:15 AM, Michele Neylon - Blacknight <michele at blacknight.com <mailto:michele at blacknight.com>> wrote:
>>>>>> John
>>>>>> 
>>>>>> There are two distinct discussions here which seem to be getting mixed together.
>>>>>> 
>>>>>> During the proxy / privacy discussion some people wanted there to be a distinction between who could avail of proxy / privacy services. Some wanted a prohibition on letting “commercial” have the ability to use proxy / privacy.
>>>>>> 
>>>>>> The discussions here and elsewhere around collection and publication of data in light of GDPR are very different.
>>>>>> 
>>>>>> Nobody is disputing that there is a distinction between private individuals and corporations when it comes to GDPR. However there are risks associated with the processing of personal information, which may be tied into corporate information. And the “commercial” vs “non-commercial” distinction won’t work.
>>>>>> 
>>>>>> Where there is a clear difference is between treatment of registrants based on geography.
>>>>>> As an Irish company all our clients have to be handled under GDPR. The same would be true of any other provider based in the EU.
>>>>>> 
>>>>>> I cannot speak to nor will I get involved in debates around what various non-EU based operators may currently be doing or plan to do in the future – there are enough of them on this list who can do so more ably than I and without my help.
>>>>>> 
>>>>>> Regards
>>>>>> 
>>>>>> Michele
>>>>>> 
>>>>>> 
>>>>>> --
>>>>>> Mr Michele Neylon
>>>>>> Blacknight Solutions
>>>>>> Hosting, Colocation & Domains
>>>>>> https://www.blacknight.com <https://www.blacknight.com/>
>>>>>> https://blacknight.blog <https://blacknight.blog/> /
>>>>>> http://ceo.hosting/ <http://ceo.hosting/>
>>>>>> Intl. +353 (0) 59  9183072 <tel:+353%2059%20918%203072>
>>>>>> Direct Dial: +353 (0)59 9183090 <tel:+353%2059%20918%203090>
>>>>>> -------------------------------
>>>>>> Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty
>>>>>> Road,Graiguecullen,Carlow, R93 X265
>>>>>> ,Ireland  Company No.: 370845
>>>>>> From: gnso-rds-pdp-wg <gnso-rds-pdp-wg-bounces at icann.org <mailto:gnso-rds-pdp-wg-bounces at icann.org>> on behalf of John Horton via gnso-rds-pdp-wg <gnso-rds-pdp-wg at icann.org <mailto:gnso-rds-pdp-wg at icann.org>>
>>>>>> Reply-To: John Horton <john.horton at legitscript.com <mailto:john.horton at legitscript.com>>
>>>>>> Date: Friday 16 February 2018 at 18:54
>>>>>> To: "benny at nordreg.se <mailto:benny at nordreg.se>" <benny at nordreg.se <mailto:benny at nordreg.se>>
>>>>>> Cc: RDS PDP WG <gnso-rds-pdp-wg at icann.org <mailto:gnso-rds-pdp-wg at icann.org>>
>>>>>> Subject: Re: [gnso-rds-pdp-wg] Krebs On Security article RE whois and GDRP
>>>>>> 
>>>>>> I think quite a bit in this WG and certainly in the prior privacy/proxy PDP, and absolutely what we're seeing with GoDaddy. To make sure I'm being clear about what I mean, GoDaddy isn't only redacting Whois information (via Port 43) where it's an EU natural citizen or natural resident. The information is being redacted for....everyone. All registrants. There's simply no justification for that.  <>
>>>>>> 
>>>>>> I predict you'd see (I'm not speaking for anyone here, just me) a real willingness on the security and compliance community's part to compromise and support a system where, IF a registrant is an EU natural person (yes, I know we need to define it accurately -- citizen, resident, we can get granular later) then...hey, let's set up a system in involving redaction of some fields, access to those fields in legitimate cases, etc. I want to support registrars' compliance with the GDPR. But we're seeing the registrar community say: We want to apply this globally. To all domain name registrations. Doesn't matter if the registrant is the intended beneficiary of the new law, or in scope, or not. We're going to just change global policy.
>>>>>> 
>>>>>> I think that viewpoint has been pretty repeatedly represented in this working group, but I'd love to hear from registrars that would support a more targeted solution where only the intended beneficiaries of the GDPR (that is, in-scope registrants) are covered under the policy.
>>>>>> 
>>>>>> John Horton
>>>>>> President and CEO, LegitScript
>>>>>> <image001.jpg>
>>>>>> 
>>>>>> Follow LegitScript: LinkedIn <http://www.linkedin.com/company/legitscript-com>  |  Facebook <https://www.facebook.com/LegitScript>  |  Twitter <https://twitter.com/legitscript>  |  Blog <http://blog.legitscript.com/>  |  Newsletter <http://go.legitscript.com/Subscription-Management.html>
>>>>>> 
>>>>>> <image002.jpg><image003.jpg>
>>>>>> 
>>>>>> On Fri, Feb 16, 2018 at 10:44 AM, benny at nordreg.se <mailto:benny at nordreg.se> <benny at nordreg.se <mailto:benny at nordreg.se>> wrote:
>>>>>>> Please refer to where registrars have been unwilling to explore this option?
>>>>>>> 
>>>>>>> 
>>>>>>> 
>>>>>>> --
>>>>>>> Med vänliga hälsningar / Kind Regards / Med vennlig hilsen
>>>>>>> 
>>>>>>> Benny Samuelsen
>>>>>>> Registry Manager - Domainexpert
>>>>>>> 
>>>>>>> Nordreg AB - ICANN accredited registrar
>>>>>>> IANA-ID: 638
>>>>>>> Phone: +46.42197000 <tel:%2B46.42197000>
>>>>>>> Direct: +47.32260201 <tel:%2B47.32260201>
>>>>>>> Mobile: +47.40410200 <tel:%2B47.40410200>
>>>>>>> 
>>>>>>> > On 16 Feb 2018, at 19:38, John Horton via gnso-rds-pdp-wg <gnso-rds-pdp-wg at icann.org <mailto:gnso-rds-pdp-wg at icann.org>> wrote:
>>>>>>> >
>>>>>>> > Just imagine how much of all of this could be avoided if registrars were willing to agree to a commercial/individual distinction.
>>>>>>> >
>>>>>>> > John Horton
>>>>>>> > President and CEO, LegitScript
>>>>>>> >
>>>>>>> >
>>>>>>> > Follow LegitScript: LinkedIn  |  Facebook  |  Twitter  |  Blog  |  Newsletter
>>>>>>> >
>>>>>>> >
>>>>>>> >
>>>>>>> > On Fri, Feb 16, 2018 at 10:33 AM, John Bambenek via gnso-rds-pdp-wg <gnso-rds-pdp-wg at icann.org <mailto:gnso-rds-pdp-wg at icann.org>> wrote:
>>>>>>> > GDPR taken to its logical extreme very well could require us to abandon IP reputation and to emptying our firewalls. I mean, no consumer authorized me to process their IP just by attacking me, right?
>>>>>>> >
>>>>>>> > Privacy absolutism is not the answer unless you basically want to mandate the internet backbone be converted to tor.
>>>>>>> >
>>>>>>> > --
>>>>>>> > John Bambenek
>>>>>>> >
>>>>>>> > On Feb 16, 2018, at 06:09, Michele Neylon - Blacknight <michele at blacknight.com <mailto:michele at blacknight.com>> wrote:
>>>>>>> >
>>>>>>> >> It’s an interesting read, but it has several flaws.
>>>>>>> >>
>>>>>>> >> It refers to registrars solely and ignores registries.
>>>>>>> >>
>>>>>>> >> It also makes it sound like issues around whois are “new”, which we all know isn’t true.
>>>>>>> >>
>>>>>>> >> The comments about IP addresses make it sound like it’s a theoretical concern, yet there is case law eg:
>>>>>>> >>
>>>>>>> >> https://www.irishtimes.com/business/technology/european-court-of-justice-rules-ip-addresses-are-personal-data-1.2835704 <https://www.irishtimes.com/business/technology/european-court-of-justice-rules-ip-addresses-are-personal-data-1.2835704>
>>>>>>> >>
>>>>>>> >>
>>>>>>> >>
>>>>>>> >>
>>>>>>> >>
>>>>>>> >>
>>>>>>> >>
>>>>>>> >> --
>>>>>>> >>
>>>>>>> >> Mr Michele Neylon
>>>>>>> >>
>>>>>>> >> Blacknight Solutions
>>>>>>> >>
>>>>>>> >> Hosting, Colocation & Domains
>>>>>>> >>
>>>>>>> >> https://www.blacknight.com/ <https://www.blacknight.com/>
>>>>>>> >>
>>>>>>> >> http://blacknight.blog/ <http://blacknight.blog/>
>>>>>>> >>
>>>>>>> >> Intl. +353 (0) 59 9183072 <tel:%2B353%20%280%29%2059%20%209183072>
>>>>>>> >>
>>>>>>> >> Direct Dial: +353 (0)59 9183090 <tel:%2B353%20%280%2959%209183090>
>>>>>>> >>
>>>>>>> >> Personal blog: https://michele.blog/ <https://michele.blog/>
>>>>>>> >>
>>>>>>> >> Some thoughts: https://ceo.hosting/ <https://ceo.hosting/>
>>>>>>> >>
>>>>>>> >> -------------------------------
>>>>>>> >>
>>>>>>> >> Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty
>>>>>>> >>
>>>>>>> >> Road,Graiguecullen,Carlow,R93 X265,Ireland  Company No.: 370845
>>>>>>> >>
>>>>>>> >> From: gnso-rds-pdp-wg <gnso-rds-pdp-wg-bounces at icann.org <mailto:gnso-rds-pdp-wg-bounces at icann.org>> on behalf of Dotzero <dotzero at gmail.com <mailto:dotzero at gmail.com>>
>>>>>>> >> Date: Friday 16 February 2018 at 00:07
>>>>>>> >> To: RDS PDP WG <gnso-rds-pdp-wg at icann.org <mailto:gnso-rds-pdp-wg at icann.org>>
>>>>>>> >> Subject: [gnso-rds-pdp-wg] Krebs On Security article RE whois and GDRP
>>>>>>> >>
>>>>>>> >>
>>>>>>> >>
>>>>>>> >>
>>>>>>> >> https://krebsonsecurity.com/2018/02/new-eu-privacy-law-may-weaken-security/ <https://krebsonsecurity.com/2018/02/new-eu-privacy-law-may-weaken-security/>
>>>>>>> >>
>>>>>>> >> Michael Hammer
>>>>>>> >>
>>>>>>> >> _______________________________________________
>>>>>>> >> gnso-rds-pdp-wg mailing list
>>>>>>> >> gnso-rds-pdp-wg at icann.org <mailto:gnso-rds-pdp-wg at icann.org>
>>>>>>> >> https://mm.icann.org/mailman/listinfo/gnso-rds-pdp-wg <https://mm.icann.org/mailman/listinfo/gnso-rds-pdp-wg>
>>>>>>> >
>>>>>>> > _______________________________________________
>>>>>>> > gnso-rds-pdp-wg mailing list
>>>>>>> > gnso-rds-pdp-wg at icann.org <mailto:gnso-rds-pdp-wg at icann.org>
>>>>>>> > https://mm.icann.org/mailman/listinfo/gnso-rds-pdp-wg <https://mm.icann.org/mailman/listinfo/gnso-rds-pdp-wg>
>>>>>>> >
>>>>>>> > _______________________________________________
>>>>>>> > gnso-rds-pdp-wg mailing list
>>>>>>> > gnso-rds-pdp-wg at icann.org <mailto:gnso-rds-pdp-wg at icann.org>
>>>>>>> > https://mm.icann.org/mailman/listinfo/gnso-rds-pdp-wg <https://mm.icann.org/mailman/listinfo/gnso-rds-pdp-wg>
>>>>>> 
>>>>> 
>>>>> 
>>>>> 
>>>> _______________________________________________
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>> 
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