[gnso-rds-pdp-wg] Facebook loses Belgian court case over consent and tracking

Tue Feb 20 20:35:56 UTC 2018

It could be illuminating to spell out the analysis in more detail.

If publication of PII in the form of IP addresses in DNS records is lawful under GDPR, what is the legal basis for that processing under GDPR Article 6? We know it can't be "because they have always been published."

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From: Tapani Tarvainen <ncsg at tapani.tarvainen.info<mailto:ncsg at tapani.tarvainen.info>>
Date: Tuesday, Feb 20, 2018, 1:08 PM
To: gnso-rds-pdp-wg at icann.org <gnso-rds-pdp-wg at icann.org<mailto:gnso-rds-pdp-wg at icann.org>>
Subject: Re: [gnso-rds-pdp-wg] Facebook loses Belgian court case over consent and tracking

Yes. Even though IP addresses &c can be personally identifiable
information, that doesn't mean they can't ever be published. It does
mean GDPR applies, but it's clear GDPR would allow DNS records to be
published just as they've always been.

Seriously. GDPR is not insane.

Tapani

On Tue, Feb 20, 2018 at 12:31:57PM -0500, Steve Crocker (steve at shinkuro.com) wrote:
>
> John,
>
> I think you're making the implicit assumption that access to name server
> (NS), address (A and AAAA) and related MX and DS records should be gated
> simply because someone can claim there might be personally identifiable
> information associated with these records. This is a very large assumption
> with very large consequences.
>
> The DNS was designed to provide unfettered access to these records. The
> implication, therefore, is that anyone who publishes these records
> necessarily expects these records to be publicly available.
>
> If you think there's a need for a system that makes the address information
> about a site accessible to only a selected set of people, design and build
> a system that provides that functionality. The Domain Name System,
> however, is not designed and not built that way. Anyone who publishes
> information in the DNS has necessarily chosen to make that information
> public. That's the end of the privacy issue with respect to the Domain
> Name System.
>
> Discussion about how much information about the registrant is a separate
> matter, of course.
>
> Steve
>
>
> On Tue, Feb 20, 2018 at 12:17 PM, John Bambenek <jcb at bambenekconsulting.com>
> wrote:
>
> > We have no idea how to determine nationality, so we just assume GDPR
> > applies.
> >
> > We have no idea how to determine natural vs legal person, so we assume
> > natural person.
> >
> > We assume the user is too stupid to use a role-based email address or any
> > other mitigations, so that’s not an option.
> >
> > We assume the user is too stupid to know why to do with voluntary fields,
> > so putting data in whois is too risky even in an opt-in scenario.
> >
> > But now we are talking about acceptable levels of risk with nameservers?
> >
> > How are we going to control to make sure only the types of data processing
> > on this sensitive information is limited to what is authorized? What if I
> > don’t want you to have my nameservers? What are you registrars going to do
> > to make that possible?
> >
> > --
> > John Bambenek
> >
> > On Feb 20, 2018, at 11:11, Ayden Férdeline <icann at ferdeline.com> wrote:
> >
> > Domain names and name servers can comprise personal information. However,
> > this does not mean we cannot use them. It just means we need to complete a
> > privacy impact assessment and understand the risks involved. And I suspect
> > the risks to a name server or domain name itself being public are
> > incredibly low. The risk profile is nowhere near that of WHOIS or RDS being
> > open for all to see, filled with sensitive data like addresses and phone
> > numbers.
> >
> > Ayden
> >
> >
> > -------- Original Message --------
> > On 20 February 2018 5:55 PM, John Bambenek via gnso-rds-pdp-wg <
> > gnso-rds-pdp-wg at icann.org> wrote:
> >
> > Domain names, hostnames, and IP addresses in so far as they are personally
> > identifiable are PII. Courts have ruled on IP addresses already and DPAs
> > have said much the same.
> >
> > So the same logic on why we can’t have a system that lets people advertise
> > who owns the domain is the same argument why DNS must be gated.
> >
> > Has any registrar done a PIA on publishing my nameservers? How do I
> > control who gets that information? How do we enforce its for authorized
> > purposes only?
> >
> > --
> > John Bambenek
> >
> > On Feb 20, 2018, at 10:50, Steve Crocker <steve at shinkuro.com> wrote:
> >
> > I'm puzzled by the reference to name servers and A records. These are
> > necessarily public else the domain name system won't function. Is there
> > confusion or misunderstanding about the role of these records?
> >
> > Steve
> >
> >
> > On Tue, Feb 20, 2018 at 11:47 AM, allison nixon <elsakoo at gmail.com> wrote:
> >
> >> 1,000,000% agreed. Registrars cannot eliminate all their risk by masking
> >> WHOIS into oblivion. The DPAs can still ask why they are exposing A
> >> records, nameservers, etc, to anyone who asks for them, without valid
> >> reasons or authentication. Why do they expose zone files, etc. The DPAs can
> >> ask why customer support can sometimes so easily be social engineered into
> >> handing over accounts to account takeover scammers.
> >>
> >> Since most registrars are also hosting providers/mail providers, would
> >> criminals storing stolen PII on your servers be a GDPR issue? After all,
> >> the ultimate owner of the server is also considered a "processor", which
> >> has interesting implications if one's customers include phishers, or sell
> >> stolen credit cards, and one's already been notified. I have even seen
> >> miscreants putting doxes in TXT records.
> >>
> >> I already know of quite a few incidents where people would have had
> >> standing to file a GDPR complaint against registrars/hosters, unrelated to
> >> WHOIS.
> >>
> >> Eventually the issue is going to impact the core business model of
> >> registrars. This isn't going to stop at WHOIS. An open dialog with the DPAs
> >> at an early stage is of utmost importance for all parties involved here.
> >>
> >>
> >> On Mon, Feb 19, 2018 at 10:16 AM, Sam Lanfranco <sam at lanfranco.net>
> >> wrote:
> >>
> >>> Benny,
> >>>
> >>> This is why I support multi-venue multi-stakholder dialogue with the
> >>> DPA's so that they are appraised of the issues on all sides of the data
> >>> protection issue. They are then more likely to act in a judicious manner,
> >>> and less like an attack dog. Watch the new movie "*The Post*" where
> >>> when *Washington Post* owner Katharine Graham decided to publish the
> >>> Vietnam War Pentagon Papers, with the downside risk that she could be
> >>> jailed for treason. The court ruled in favor of freedom of the press. It is
> >>> not what the DPA can do, but what they are likely to do, and dialogue goes
> >>> a long way to mitigating risk and shaping appropriate positions and
> >>> behavior (with integrity) on all sides.
> >>>
> >>> Sam L.
> >>>
> >>> On 2/19/2018 10:02 AM, benny at nordreg.se wrote:
> >>>
> >>> <ironi on> Now I am relieved, we as registrars will not be subject for
> >>> anything… </ironi off>
> >>>
> >>> None of us know where and what they will prioritise,* remember that it
> >>> only take 1 complaint to a DPA to get the snowball moving.* [emphasis
> >>> added] I am sure your statement have noe value then.
> >>>
> >>> --
> >>> Med vänliga hälsningar / Kind Regards / Med vennlig hilsen
> >>>
> >>>
> >>> Benny Samuelsen
> >>> Registry Manager - Domainexpert
> >>>
> >>> Nordreg AB - ICANN accredited registrar
> >>> IANA-ID: 638
> >>> Phone: +46.42197000 <+46%2042%2019%2070%2000>
> >>> Direct: +47.32260201 <+47%2032%2026%2002%2001>
> >>> Mobile: +47.40410200 <+47%20404%2010%20200>
> >>>
> >>> On 19 Feb 2018, at 15:29, Sam Lanfranco <sam at lanfranco.net> wrote:
> >>>
> >>> Hi Tim,
> >>>
> >>> No, completely to the contrary. My point with that dollars reference was
> >>> that in some cases litigation is the preferred business response, rather
> >>> than compliance and paying fines. Also, the big revenues in mining big data
> >>> are outside the DNS sphere, and outside the abuses and "bad things" that
> >>> websites do to people. The big EU fines are more likely to hit social media
> >>> than Registrars, although they are risks there as well. The revenues, and
> >>> privacy violations, will come from profiling users by mining big data for
> >>> scraps of personal date to individualize target marketing.
> >>>
> >>> *As a brief aside:* This goes well beyond the remit of ICANN and is
> >>> actually worse than just being inundated by adverts base on personal online
> >>> behavior. Artificial Intelligence mining apps are increasingly customizing
> >>> the "news" one gets from news feeds, to help "glue the eyeballs" to the
> >>> adverts, creating a news silo of one. (That is amusing for me since I
> >>> virtually live in two towns in two countries). Even more worrisome is the
> >>> growing practice for A.I. companies where A.I. "writes" the news releases,
> >>> now mainly in sports and finance, for thousands of print and online news
> >>> outlets. I know all of this is outside the ICANN remit so I will stop
> >>> there.
> >>>
> >>> Sam L.
> >>>
> >>> On 2/18/2018 5:43 PM, Chen, Tim wrote:
> >>>
> >>> Hi Sam,
> >>>
> >>> When you say these are hundred million dollar issues for "the
> >>> companies",which companies are you talking about? Large Registrars?
> >>>
> >>> I hope you are not comparing cybersecurity professionals and the good
> >>> work they are trying to enable, to a completely separate privacy issue
> >>> around data used for ad tracking or behavior tracking across websites. If
> >>> I spent my days trying to protect people on the internet from bad things, I
> >>> would certainly not appreciate any allusion that I was engaged on the whois
> >>> data issue 'for the money'.
> >>>
> >>> Tim
> >>>
> >>>
> >>> _______________________________________________
> >>> gnso-rds-pdp-wg mailing list
> >>> 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>
> >>>
> >>>
> >>>
> >>> --
> >>> ------------------------------------------------
> >>> "It is a disgrace to be rich and honoured
> >>> in an unjust state" -Confucius
> >>> 邦有道，贫且贱焉，耻也。邦无道，富且贵焉，耻也
> >>> ------------------------------------------------
> >>> Visiting Prof, Xi'an Jaiotong-Liverpool Univ, Suzhou, China
> >>> Dr Sam Lanfranco (Prof Emeritus & Senior Scholar)
> >>> Econ, York U., Toronto, Ontario, CANADA - M3J 1P3
> >>> email: sam at lanfranco.net Skype: slanfranco
> >>> blog: https://samlanfranco.blogspot.com<https://samlanfranco.blogspot.com>
> >>> Phone: +1 613-476-0429 <(613)%20476-0429> cell: +1 416-816-2852 <(416)%20816-2852>
> >>>
> >>>
> >>> _______________________________________________
> >>> gnso-rds-pdp-wg mailing list
> >>> 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>
> >>>
> >>
> >>
> >>
> >> --
> >> _________________________________
> >> Note to self: Pillage BEFORE burning.
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