[IRT.RegDataPolicy] IRT Liaison report on Rec7 during the 20Aug2020 GNSO Council Meeting

Tue Aug 25 22:15:57 UTC 2020

Hi Sebastien,

Thank you for circulating this draft and for the ongoing work to resolve the Rec 7 issue. I can understand your thinking behind trying to get an answer from the Council that can help resolve the disagreement, but I don’t believe the question you’ve posed is the best one to ask, or even an appropriate question to put to the Council.

First off, I share Sarah’s concerns that the question as written is beyond the scope of the Council. We cannot ask the Council to make a legal judgment for the Contracted Parties. The Council’s role is to manage the policy development process, not adjudicate how those policies apply to and are enforced with Contracted Parties. That’s very squarely the job of ICANN’s Compliance Department.

Moreover, my recollection of developing this recommendation during Phase 1 is that the reference to a “legal basis” was not intended to refer ONLY to ICANN Consensus Policies. So again, it becomes inappropriate to ask the Council to make a determination as to whether a legal basis does indeed exist for the transfer of all data in all cases. As I mentioned during the call on Wednesday, if that had been the intended outcome of the Phase 1 deliberations, then that is what the policy recommendation would reflect. But that’s not what the Phase 1 WG concluded – instead, it concluded that the transfer of certain data elements would be optional.

Rather than posing this question to Council, I think it makes much more sense to go back to your original plan and send them your written analysis document. The fundamental question here is how Rec 7 should be reflected in the Consensus Policy. That should have a straightforward answer. But we keep getting caught up in trying to interpret or preempt how the policy will later be enforced, and that’s not what either the IRT or the Council is here to do. So I think it makes sense to refocus our question to Council on how the recommendation should be implemented, as you describe in your paper.

Best,

Marc

From: IRT.RegDataPolicy <irt.regdatapolicy-bounces at icann.org> On Behalf Of Sebastien at registry.godaddy
Sent: Monday, August 24, 2020 12:42 PM
To: Sarah Wyld <swyld at tucows.com>; irt.regdatapolicy at icann.org
Subject: [EXTERNAL] Re: [IRT.RegDataPolicy] IRT Liaison report on Rec7 during the 20Aug2020 GNSO Council Meeting

Hi Sarah,

In my view this replaces my earlier "suggested path to resolution" document for now.

I believe that depending on the answer to this question we may or not be able to resolve Rec 7.

If the Council’s answer to this doesn’t help us resolve Rec 7, we will then review the previous document in light of the answer and send that too.

I got an acknowledgment of reception on our Rec 12 question but no answer so far. I will chase it.

Kindly,

Sebastien Ducos

GoDaddy Registry | Senior Client Services Manager

+61449623491

Level 8, 10 Queens Road

Melbourne, VIC, Australia

3004

sebastien at registry.godaddy<mailto:sebastien at registry.godaddy>

www.linkedin.com/in/sebastienducos<https://www.linkedin.com/in/sebastienducos>

From: "IRT.RegDataPolicy" <irt.regdatapolicy-bounces at icann.org<mailto:irt.regdatapolicy-bounces at icann.org>> on behalf of Sarah Wyld <swyld at tucows.com<mailto:swyld at tucows.com>>
Organisation: Tucows
Date: Monday, 24 August 2020 at 6:30 pm
To: "irt.regdatapolicy at icann.org<mailto:irt.regdatapolicy at icann.org>" <irt.regdatapolicy at icann.org<mailto:irt.regdatapolicy at icann.org>>
Subject: Re: [IRT.RegDataPolicy] IRT Liaison report on Rec7 during the 20Aug2020 GNSO Council Meeting

Notice: This email is from an external sender.

Hi Sebastien,

Thank you for sharing this on the list.

How does this request below relate to your "suggested path to resolution" document, are they both being provided to the Council? I notice that the question to Council at the end of the letter in this thread below is different from the conclusion you reached in the document, and the question below would lead the GNSO Council to provide legal guidance to the Contracted Parties, was that your intent?

And a separate question, but since I'm already writing -- I think you were going to ask the Council for an update on the consultation between the ICANN Board and GNSO Council on the portions of Rec #12 not adopted by the Board. Do you have any further info for us on this topic?

Thank you,

Sarah W

--
Sarah Wyld
Domains Product Team
Tucows
+1.416 535 0123 Ext. 1392

On 8/21/2020 6:15 PM, Ducos, Sebastien via IRT.RegDataPolicy wrote:

   Dear IRT,

   As per our discussion during our IRT call on 19Aug2020, I reported yesterday (20Aug2020) to the GNSO Council the IRT’s request for clarification on the prior existence of a Legal Basis to support the transfer of data under Rec 7.

   For clarity, I now have to present the said request in writing. I propose the following wording, but invite your input.

   As has been the case all along in this exercise, this is not a reflexion of my personal point of view, but should represent the different points of view of the IRT. Please ensure yours is reflected.

   For the sake of council members who may not all be as familiar with the topic as we are, I would like to submit a limited relevant number of reference documents for their review.

   Please confirm that the ones I have included are indeed relevant and the links I have provided are the most direct to the latest/final versions of the said documents.

   [Date]

   RE: EPDP Phase 1 Recommendation 7 – Legal Basis

   Dear GNSO Council,

   In an attempt to resolve a different in interpretation of the EPDP Phase I Recommendation 7, the IRT is seeking clarification with regards to the existence of legal basis which covers the transfer of data (including personal data) from Registrars to Registries, in all cases.

   Recommendation 7 states:

   “The EPDP Team recommends that the specifically-identified data elements under “[t]ransmission of registration data from Registrar to Registry”, as illustrated in the aggregate data elements workbooks, must be transferred from registrar to registry provided an appropriate legal basis exists and data processing agreement is in place. In the aggregate, these data elements are:”

   [followed by the list of data points that may be transferred, some marked as Mandatory (The domain name, fields pertaining to the Registrar and Domain Statuses), others as Optional (contact fields, name servers, Registrar expiry date and Reseller)]

   Ref: https://gnso.icann.org/sites/default/files/file/field-file-attach/epdp-gtld-registration-data-specs-final-20feb19-en.pdf<https://urldefense.com/v3/__https:/gnso.icann.org/sites/default/files/file/field-file-attach/epdp-gtld-registration-data-specs-final-20feb19-en.pdf__;!!N14HnBHF!sCWU7y9IbaKHs6GMHTcYVyVtmbssBSq1aPdTMDjtwrN2EavylO7yn8IgebUbvTovu3GBdw$>

   The IRT remains divided in the interpretation of the mention “provided an appropriate legal basis exists and data processing agreement is in place” with:

   *    Parties who consider the mention key as in their view a legal basis may not exist in all cases and must be established for each TLD,
   *    Parties who consider the mention relevant, view the legal basis as pre-established under Consensus Policy and expect that the currently negotiated data processing agreement (between ICANN and the CPH) will reflect the said legal basis,
   *    Parties who consider legal basis established in all cases in this context, and seek to remove the sentence for the avoidance of confusion.

   Further, each party cites in its argument:

   *    The EPDP Phase I Final Report and the underlying work - https://gnso.icann.org/sites/default/files/file/field-file-attach/epdp-gtld-registration-data-specs-final-20feb19-en.pdf<https://urldefense.com/v3/__https:/gnso.icann.org/sites/default/files/file/field-file-attach/epdp-gtld-registration-data-specs-final-20feb19-en.pdf__;!!N14HnBHF!sCWU7y9IbaKHs6GMHTcYVyVtmbssBSq1aPdTMDjtwrN2EavylO7yn8IgebUbvTovu3GBdw$>
   *    Existing Consensus Policy including but not limited to the Thick RDDS (WHOIS) Transition Policy - https://www.icann.org/resources/pages/thick-whois-transition-policy-2017-02-01-en<https://urldefense.com/v3/__https:/www.icann.org/resources/pages/thick-whois-transition-policy-2017-02-01-en__;!!N14HnBHF!sCWU7y9IbaKHs6GMHTcYVyVtmbssBSq1aPdTMDjtwrN2EavylO7yn8IgebUbvTomhXpJgw$>
   *    The “Bird & Bird memo” of 8 March 2019 “Advice on the legal basis for transferring Thick WHOIS” - https://community.icann.org/download/attachments/102138857/ICANN%20-%20Memo%20on%20thick%20Whois%5B1%5D.docx?version=1&modificationDate=1552176734000&api=v2<https://urldefense.com/v3/__https:/community.icann.org/download/attachments/102138857/ICANN*20-*20Memo*20on*20thick*20Whois*5B1*5D.docx?version=1&modificationDate=1552176734000&api=v2__;JSUlJSUlJQ!!N14HnBHF!sCWU7y9IbaKHs6GMHTcYVyVtmbssBSq1aPdTMDjtwrN2EavylO7yn8IgebUbvTpLToewLQ$>

   and related public comments submitted in the context of the above.

   Question to the GNSO Council:

   *    Does the GNSO Council advise that there exists under Consensus Policy and in accordance with GDPR a legal basis which covers the transfer of data, including personal data, between Registrar and Registries in all cases?

   [IRT Liaison signature]

   Kindly,

   Sebastien Ducos

   GoDaddy Registry | Senior Client Services Manager

   +61449623491

   Level 8, 10 Queens Road

   Melbourne, VIC, Australia

   3004

   sebastien at registry.godaddy<mailto:sebastien at registry.godaddy>

   www.linkedin.com/in/sebastienducos<https://urldefense.com/v3/__https:/www.linkedin.com/in/sebastienducos__;!!N14HnBHF!sCWU7y9IbaKHs6GMHTcYVyVtmbssBSq1aPdTMDjtwrN2EavylO7yn8IgebUbvTpZ-jSKMQ$>

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