Option 1

[Stephanie E Perrin]

Hi Milton, I am going to respond to you in detail shortly, but in the 
meantime and for the benefit of those on this list who are interested in 
this matter, I attach a few of the memos from Bird and Bird on the 
matter of publishing this data, and/or making this distinguishing 
between legal/natural persons routine.  Enjoy!  The latest one, dated 
April 27th is particularly relevant.

Also attached is a memo from the head of the European Data Protection 
Board (the group of EU data commissioners responsible for providing 
advice to the EU data protection supervisor, and for coordinating EU 
commissioner views.

In the face of liability as a co-controller, I would suggest that ICANN 
would be very ill advised to concede to the pressure from the 
"surveillance caucus" to force this discrimination to take place, 
whether within policy or as a preferred option.  I think we are quite 
comfortable with a "hold that line" position.  Note that the parties in 
the EPDP who want full disclosure have cited the draft NIS directive, 
the policies of RIPE and .EU, and our outside counsel Bird and Bird have 
systematically taken those arguments apart.  Why on earth would be 
concede here?

cheers Stephanie


On 2021-05-04 11:34 p.m., Mueller, Milton L wrote:
> *EXTERNAL EMAIL:*
>
> Kathy, Stephanie, and NCSG members:
>
> Personally, I would have no problem falling in line with your 
> position. But there are two fatal flaws that you need to address. 
> First, you are describing only what _/we/_ want and not thinking at 
> all about how you get consensus. Second, your description of what we 
> want does NOT correspond to what will actually happen if we “hold the 
> line.” As much as I would like to promote harmony and unity among NCSG 
> EPDP representatives, I don’t think you have thought things through.
>
> I know perfectly well that we don’t want any differentiation and that 
> the registrars don’t either. What you are overlooking is that the 
> other half of the EPDP does want it, and the board will see the EPDP 
> as deadlocked. So Option 1 will make you feel very self-righteous in 
> the short term, but what happens next? You are, as I will show, 
> leading us down a blind alley.
>
> I can think of 3 scenarios we can discuss as a basis for action.
>
> Scenario 1.
>
> We “hold the line,” and we revert to Phase 1 recommendations 
> unchanged. There is _/no guidance/_. The other half of the EPDP just 
> gives up and accepts it. This result is not bad, I admit, if that last 
> bit happens.
>
> But what are the Phase 1 recommendations? You have misrepresented the 
> “status quo” as not differentiating legal and natural. WRONG. What 
> will happen under this option is that any registrar or registry can 
> choose to differentiate in any way they like. And there will be no 
> guidance that you can appeal to if they do it wrong. You say you don’t 
> want registrars asking users whether they are legal or natural. Well, 
> sorry, that can happen under your Option 1. A deadlock on EPDP means 
> that differentiation is neither prohibited or required, it is up to 
> the contracted parties. Many registrars won’t do it, but some will. 
> Registries could do it, too. This is the “let the market decide” 
> option. Stephanie has become a libertarian, I guess.
>
> Scenario 2
>
> Scenario 1 assumes the other side accepts defeat. But what if we “hold 
> the line,” and the other half of the EPDP doesn’t accept it? The 
> European Commission, the US justice department, the GAC, SSAC, and of 
> course the IPC/BC and ALAC join a strong chorus telling the board 
> “something must be done.” The Board is influenced, and refuses to 
> accept the recommendation, as it has done with the SSAD (which the 
> same group of stakeholders opposed). We have seen the Board cave to 
> GAC and governmental demands again and again, the latest example being 
> “curative rights” for IGO acronyms, which the GNSO never approved. 
> Worse, the EC may modify its NIS2 legislation to require ICANN to 
> differentiate. The US congress could intervene. The issue festers for 
> another three – five years. Several powerful players start attacking 
> the multistakeholder process. Maybe ICANN corrupts its process once 
> again.
>
> Scenario 3
>
> Scenario 3 is that we don’t require differentiation of legal persons, 
> but we develop consensus guidance on how contracted parties should do 
> it if they choose to do it. This is the most likely scenario, and it’s 
> one that your position paper completely ignores. If you do want 
> guidance, the approach to guidance that I have suggested is best, 
> because it is a very lightweight process of self-identification by 
> registrants. By offering some differentiation it may defuse the 
> opposition of the other stakeholders. On the other hand Stephanie’s 
> complicated, expensive and power-surrendering approach is not the kind 
> of guidance we want.
>
> By now it should be clear to anyone who’s read this far that Scenario 
> 1 is not as wonderful as you say and may not be possible. The EPDP is 
> already deeply invested in developing guidance about how registrars 
> should and should not differentiate. We have been working on it for 
> weeks. Unless something changes radically in the next week, we will 
> actually produce some guidance about differentiation. So, I suggest 
> that we confine our debate to Scenario 2: the developing of nonbinding 
> guidance. I suggest again that allowing registrants to choose to 
> identify their registration as one of a legal person, with their data 
> published or automatically available via SSAD, creates a path to 
> consensus and to resolving the issue, whereas your preferred path does 
> not.
>
> To conclude, I call your attention to a pathology that is paralyzing 
> nearly all of ICANN’s working groups. Defining your position and 
> “holding the line” is a strategy that all the SGs and ACs seem to 
> adopt now. It turns all these deliberations into a bunch of people 
> re-stating their position again and again for 3-4 years, re-litigating 
> issues endlessly, avoiding any serious middle ground. No thought is 
> given to finding a solution that achieves a critical mass of consensus.
>
> Anyone who wants to be a serious participant in developing the NCSG’s 
> position in EPDP has to answer a very basic question:
>
> How does this end?
>
> What is your scenario for achieving the level of agreement needed to 
> pass a policy?
>
> Looking forward to your response.
>
> Dr. Milton L Mueller
>
> Georgia Institute of Technology
>
> School of Public Policy
>
> Internet Governance Project <https://internetgovernance.org/>
>
> *From:*NCSG-Discuss <NCSG-DISCUSS at LISTSERV.SYR.EDU> *On Behalf Of 
> *kathy at DNRC.TECH
> *Sent:* Tuesday, May 4, 2021 5:35 PM
> *To:* NCSG-DISCUSS at LISTSERV.SYR.EDU
> *Subject:* Option 1
>
> Tx to Milton, Stephanie, Manju, Tapani, Farzi, Mark Leiser, Kim von 
> Arx and everyone else who commented on our dicussion of options for 
> the EPDP.
>
> As it's time to wrap up this issue so our EPDP members can present our 
> view to the EPDP Group, I co-wrote the email Stephanie posted earlier 
> today (attached below too). Best regards, Kathy
> ------------------------------------------------------------------------
>
> Fellow NCSG members,
>
> >We would like to work together to share our rationale for Option 1 –
>
> maintaining the status quo and not asking further follow-up questions, 
> mandatory or otherwise, about legal and natural persons. While the 
> EPDP phase 2a discussions have been an educational and interesting 
> exercise, we are not under any obligation to change the existing 
> policy, or further complicate it.
>
> As we have all discussed, legal/natural person questions are very 
> complicated for many of our members who are often noncommercial and 
> non-profit organizations whose structure and ways of obtaining domain 
> names do not resemble those of the large corporations other 
> stakeholder groups represent. Our members may have many layers of 
> privacy protection in less-well-known sections of the GDPR, other 
> local law, Constitutions and international conventions.
>
> We learned that recent studies show that 50% of gTLD domain name 
> registrations are for natural persons – and at least 25% more have 
> overlapping entity and personal data (e.g., the organization name has 
> personal data in it and is thus protected as personal data).
>
> Stephanie and Kathy shared their concerns for legal/natural person 
> questions during our long work on the Proxy and Privacy  Accreditation 
> Working Group.   We worked closely with the Registrars Stakeholder 
> Group to protect registrant privacy – including Battered Women’s 
> Shelters, family planning clinics, and girls educational institutions 
> – all of which may be legal entities, but have protectable data due to 
> obvious danger from disclosure in certain countries.
>
> */In light of the complicated world around us, we support Option 1- 
> the Status Quo. /* We ask the NCSG to adopt this as our stance. *Based 
> on the existing policy which makes differentiation of legal/natural 
> persons optional for each registrar, we believe we already have the**
>
> *-       best way to fight DNS Abuse,*
>
> *-       best way to protect individuals and noncommercial 
> organizations, and*
>
> *-       best way to follow GDPR and other applicable human rights and 
> free speech laws*
>
> /Therefore, we recommend NCSG “hold the line” and stick with Option 1./*
>
> /As the Registrars wrote in their EPDP Statement on Thursday April 29: 
> /*/We have heard plenty of vocal support in this group to 
> [differentiate between legal and natural persons in a mandatory 
> fashion], but to date the RrSG have not heard any compelling reason to 
> create policy that makes this dramatic shift to the domain 
> registration landscape./*
>
> *We agree. * Nothing will stop other stakeholder groups from demanding 
> further disclosure of data, and lobbying other parties including 
> governments. *What we can do in ICANN is come up with the best 
> solution for us at this time.*
>
> Many thanks to the members of our NCSG EPDP Team for your hard work. 
> This has been a long road.  With new studies, new information and 
> legal opinions, we think we have a clear and strategic path forward.  
> We believe our position to be closely aligned with that of the 
> Registrar Stakeholder Group, which they articulated on April 29 (see 
> below).
>
> Best, Kathy Kleiman and Stephanie Perrin
>
> ---------------------------------------------------------
> The Registrar Stakeholder Group issued their position statement on 
> Thursday (4/29):
>
> The members of the RrSG EPDP team have participated in this process in 
> good faith since day one and will continue to do so; however, we need 
> to be crystal clear that members of our Stakeholder Group, whom we are 
> here to represent, have voiced and recently reconfirmed their strong 
> opposition to any policy coming out of this group that makes 
> differentiation between natural and legal persons for domain 
> registrations mandatory.
>
> We have heard plenty of vocal support in this group to do just that, 
> but to date the RrSG have not heard any compelling reason to create 
> policy that makes this dramatic shift to the domain registration 
> landscape. The Contracted Party can make the most accurate assessment 
> of their own legal, technical, and commercial risks and obligations, 
> and is the only party that can determine what level of risk they 
> should assume. The scope of this EPDP Phase 2a is to consider if 
> changes are required for the relevant Recommendation; it has become 
> clear through this process that no such changes are required
>
> To the extent this group can focus its energies on guidance to 
> contracted parties which choose on their own to make this 
> differentiation, we continue to believe that is a worthwhile exercise. 
> We believe that guidance materials including educational information 
> provided by ICANN in multiple languages would help contracted parties 
> educate registrants and this would be a valuable effort.
>
> That said, based on analysis done by our stakeholder group's members, 
> we reject the notion that the majority of registered domain names are 
> registered to legal entities. We further remind this team that we have 
> not yet seen evidence that increased publication of registration data 
> will address any of the problems which have been mentioned so far in 
> this phase, and that the registration data is reliably and promptly 
> available to those who do have a legitimate reason to access it.
>
> Finally we note that this statement represents the official position 
> of the Registrar Stakeholder group, and statements from members of 
> other groups participating in the EPDP do not represent our group’s 
> position.
>
> /(Source: Transcript of EPDP-Phase 2A Team Call, 29 April 2021, 
> Statement of Volker Greimann on behalf of the Registrars Stakeholder 
> Group read into the record)/
>
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