Some update on EPDP work /Privacy in WHOIS

[Amr Elsadr]

Hi James and all,

If I’m not mistaken, most of us believe that purpose 2 is very problematic, and would prefer that it isn’t included at all. It is one of the topics the EPDP has been struggling with since it first began its deliberations. Over the months, there has consistently been a great deal of haggling on whether it should be included, or not, and to how it should be wordsmithed to be acceptable to both its proponents, as well as to those who are opposed to it. It has gone through a number of iterations, and what you see now is its most current version.

Its goal hasn’t changed over these iterations at all; which is to provide a placeholder for access to gTLD registration data for vague and unspecified purposes under the guise of SSR. Proponents of this purpose believe that ICANN’s role in SSR includes a wide range of issues, enabling trademark owners, independent cybersecurity researchers (as opposed to legitimate law enforcement agencies) and others the ability access registration data. Like I said, this is a placeholder purpose to defer discussion of access by third parties to this data to phase 2 of the EPDP.

In reality (or my interpretation of reality), this purpose is simply a strategic step for those who are troubled by the fact that the freely published WHOIS of the past is no longer. It is an attempt for them to get as much of it back as possible.

As I mentioned above (and this is an argument that I presented as early as August 2018, I believe), one of the most troubling aspects of this purpose is that there is fundamental disagreement among the community, as well as with ICANN org and members of the ICANN Board on what ICANN’s scope in SSR involves. Although the EPDP Team has not sought legal guidance on this issue, there has been input from experts on this topic to the GNSO RDS PDP WG, before it was suspended. The [response from the EU Data Protection Experts](https://community.icann.org/download/attachments/64078601/ICANN58-DataProtectionExpert-Responses-7April2017-plus-Intro.pdf?version=1&modificationDate=1494267287000&api=v2) to question 1 is particularly helpful so far as guidance on this issue is concerned.

Furthermore, attempts by the NCSG to identify a common understanding of ICANN’s mission and scope so far as SSR is concerned was discussed at length, then finally [rejected](https://mm.icann.org/pipermail/gnso-epdp-team/2018-September/000281.html) in September 2018.

On the issue of consent, as Ayden has clarified, the EPDP Team has refrained from using Article 7 of the GDPR as means to justify any processing activities. This decision was not taken lightly, and was not reached easily. The NCSG members of the EPDP never believed that informed consent is plausible considering the complexities involved, and did not wish to see registrants sign away their rights unknowingly. Similarly, contracted parties never believed that achieving informed consent is something that is practically possible. At best, relying on Article 7 could easily present them with an implementation/operational nightmare, and at worse, could land them in an undesirable state of legal liability they’d prefer to avoid. All processing activities identified by the EPDP Team have used either Articles 61b or 61f as a legal basis. For more on these, please take a look at the purpose workbooks found [here](https://community.icann.org/display/EOTSFGRD/e.+Data+Elements+Workbooks).

I hope this helps.

Thanks.

Amr

> On Feb 3, 2019, at 10:10 PM, farzaneh badii <farzaneh.badii at GMAIL.COM> wrote:
>
> I had suggested that we ask the law firm whether purpose two is crafted rightly and is actually legal. Dont know if we asked that. Bird and Bird rep was present during re crafting this purpose at Toronto meeting. Her suggestions I think were mostly discarded. One was to add the term “where necessary”.
>
> Also note that the CEO once during the LA meeting told the CPs we are trying to diminish your liability. Is that a bad thing? While this might not be legally viable if ICANN take on a lot of risk to disclose personal info then this purpose is unfortunately a terrible purpose. But interestingly while ICANN wants to diminish cps liability, seems like ICANN org doesnt want to be the joint controller, but perhaps wants to be independent controller. It is very ambiguous.
>
> But we had to compromise. I find the addition of footnote to this purpose extremely risky and will note my objection( though seems like NCSG as a whole does not want to object , i dont know) . I find the mention of SSR dangerous. But I couldnt get anywhere with my objections.
>
>  I had to attend F2F remotely because I didnt get my Canadian visa on time since the chair of epdp decided that he should favor one person over 4 others and hold the meeting outside of the US (wonder why that never happens to me). So I invite others who were present to correct the record if I am wrong somewhere.
>
> On Sun, Feb 3, 2019 at 11:17 AM James Gannon <james at cyberinvasion.net> wrote:
>
>> Interesting, as (I assume) one of the few people on this list who is registered as a DPO I think its very interesting to see the group come to those conclusions, its certainly not a risk I would accept in the firm that I am DPO for, will be interesting to see how ICANN navigates that with the various DPAs who are surely going to test that interpretation of legitimate interest.
>>
>>> On 3 Feb 2019, at 17:13, Ayden Férdeline <icann at ferdeline.com> wrote:
>>>
>>> The EPDP team does have external counsel (Bird & Bird), who have issued advice on some topics, including interpretation of 6(1)(b) (contractual necessity) and other pieces of the GDPR where our Legal Committee has thought it necessary to seek clarification from counsel. However in this particular instance, from what I recall, the EPDP team felt comfortable making the analysis ourselves. I am personally comfortable with the language. Note that there is a balancing test; the disclosure of registration data to a third party is not automatic, and only occurs if the contracted party assesses the harm to the registrant is outweighed by the legitimate interests of the third party. I happen to think this is a high bar, and that most contracted parties will be risk-adverse, so registration data is unlikely to be disclosed too freely. I don't think you can rely on consent here, because the circumstances in which I think data should be disclosed (i.e. legitimate investigations of abuse, fraud) are unlikely to result in bad actors consenting to the disclosure of their registration data.
>>>
>>> Ayden
>>>
>>> ‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐
>>> On Sunday, February 3, 2019 10:58 AM, James Gannon <james at cyberinvasion.net> wrote:
>>>
>>>> I think ICANN will struggle to find a DPO who will work under the assertion that the disclosure of registration data is an activity covered under legitimate interest.
>>>> Has the EPDP received external legal advise on any of these?
>>>>
>>>>> On 3 Feb 2019, at 16:56, Ayden Férdeline <icann at ferdeline.com> wrote:
>>>>>
>>>>> Hi James,
>>>>>
>>>>> For purpose 2, the EPDP team has completed four lawfulness of processing tests, one for each of the following activities:
>>>>>
>>>>> - collection of registration data
>>>>> - transfer of registration data from registrar to registry
>>>>> - disclosure of non-public registration data to third parties
>>>>> - retention of registration data by registrar
>>>>>
>>>>> In the case of the disclosure of registration data to third parties, we are not relying on consent, therefore Article 7 does not apply. We have assessed this as being a 6(1)(f) (legitimate interest) processing activity. However, in recognition of the fact that such a disclosure is not technically necessary to perform the registration contract between the registrant and registrar, the contracted party would still need to perform the requisite balancing test to ensure the third party's legitimate interests override the fundamental rights and freedoms of the data subject, before registration data is disclosed.
>>>>>
>>>>> Best wishes,
>>>>>
>>>>> Ayden
>>>>>
>>>>> ‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐
>>>>> On Sunday, February 3, 2019 4:08 AM, James Gannon <james at CYBERINVASION.NET> wrote:
>>>>>
>>>>>> Would love to know how purpose 2 is defined on a legal basis and also how it complies with Art 7 section 4.
>>>>>>
>>>>>>> On 3 Feb 2019, at 09:45, farzaneh badii <farzaneh.badii at gmail.com> wrote:
>>>>>>>
>>>>>>> Our update on EPDP work is overdue, so I thought I write my thoughts and report a bit on the developments, and others from EPDP team can chime in if they think I got something wrong.
>>>>>>>
>>>>>>> where we are at:
>>>>>>>
>>>>>>> we are now finalizing the preliminary report and need to come to a consensus quickly and send the report off to the council for approval. So pressure is high. We have to come up with an interim policy plan  to cover the gap between implementation and approval of the recs.
>>>>>>>
>>>>>>> Our principles:
>>>>>>>
>>>>>>> - Maximum data protection for domain name registrants globally
>>>>>>> - Accountable disclosure and accountable receipt  of domain name registrants personal info
>>>>>>> - Side with providing data protection when in doubt whether GDPR applies
>>>>>>> - Keep ICANN's mission limited
>>>>>>>
>>>>>>> I have attached a PDF with markation of what we have problems with or doubts for the moment. I am still working on it but it's attached.
>>>>>>>
>>>>>>>  Purposes for domain name registrants data processing -
>>>>>>>
>>>>>>> - Purpose 1. To establish registrants rights (generally is a good purpose, in favor of registrants). Note that some would like to add the word obligation of domain name registrants to this purpose which we have resisted and argued that if they want to do that they need a standalone purpose.
>>>>>>> - Contributing to the maintenance of SSR through disclosure to lawful requests: we initially opposed this purpose because it's not a purpose for data processing. you don't collect data to disclose it later to third parties. Now the purpose has canged to: "Contributing to the maintenance of the security, stability, and  resiliency of theDomain Name System in accordance with ICANN’s mission through enabling responses to lawful data disclosure requests." This is not a bad compromise. But the footnotes are not very helpful. The first footnote says that this purpose does not preclude IP based requests. Though this was a compromise makes me very worried. We have always said that SSR does not include IP issues and this footnote can make it easier to include IP in SSR in the future. My solution would be to re-word this and say: This purpose does not preclude lawful disclosure for non-SSR issues i.e. trademark infringement (in accordance with ICANN bylaws). The details of the disclosure will be discussed in phase two.
>>>>>>>
>>>>>>> What we have achieved so far (relatively):
>>>>>>> 1. there might be no differentiation between legal and natural persons
>>>>>>> 2.Tech admin contact might become optional
>>>>>>> 3. There might be no differentiation in treating domain name registrants based on their geographical location
>>>>>>> 4. Thin registries might not have to implement thick registries policy (unsure about that, please correct me if I am wrong)
>>>>>>>
>>>>>>> Farzaneh
>>>>>>>
>>>>>>> <EPDP Team Draft Final Report - Annotated.pdf>
>
> --
>
> Farzaneh
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