[NCSG-PC] Fwd: Re: ICANN58 Data Protection Session Planning

[Stephanie Perrin]

I am biting my tongue on this.  As some of you heard,  I raised this 
with Goran.  I am tempted to just slide it along to him. With of course 
a mention of how the GAC and ICANN staff sat on this from Hyderabad 
until mid January.

Suggestions welcome.  Pissed off, am I.

Steph



-------- Forwarded Message --------
Subject: 	Re: ICANN58 Data Protection Session Planning
Date: 	Tue, 14 Feb 2017 21:52:54 -0500
From: 	Greg Shatan <gregshatanipc at gmail.com>
To: 	KIMPIAN Peter <Peter.KIMPIAN at coe.int>
CC: 	Victoria Sheckler <vsheckler at riaa.com>, James M. Bladel 
<jbladel at godaddy.com>, kathy at kathykleiman.com <kathy at kathykleiman.com>, 
donna.austin at neustar.biz <donna.austin at neustar.biz>, 
heather.forrest at acu.edu.au <heather.forrest at acu.edu.au>, Stephanie 
Perrin <stephanie.perrin at mail.utoronto.ca>, KWASNY Sophie 
<Sophie.KWASNY at coe.int>, Wilson, Christopher <cwilson at 21cf.com>, Tony 
Holmes <tonyarholmes at btinternet.com>



All,

/First, apologies for the length of this message and a tone that is more 
strident than I intend it to be.  Another pass through this email could 
smooth the rough edges, but it is 2:45 am in Reykjavik and I have a 7:15 
breakfast meeting, so my capacity is exhausted (and so am I).  Please 
read this with a friendly, collegial tone in mind and indulge me  where 
I have failed to have the tone of the text match my desire to be a good 
working partner (and to "disagree without being disagreeable") even 
where our perspectives may differ.  (As partial explanation, my sport of 
choice in my youth was rugby ("a ruffian's game played by gentlemen"), 
while fencing probably would have been more apropos....)/

I am quite concerned with where we are in this discussion.  There are 
either some substantial misunderstandings about what this session, as a 
"High Interest Topic", is supposed to be -- or there is an apparent 
intent to exclude perspectives that will keep this from being a 
celebration of data protection principles.  I hope it's the former, but 
even that is unfortunate.

Perhaps the root of the problem is combining the original idea for a 
CoE-organized presentation with the High Interest Topic (HIT) concept -- 
or perhaps that just highlighted the inherent problem with the session.  
HIT doesn't just refer to a level of interest -- it's supposed to be a 
community-generated proposal that is then planned and presented with 
multistakeholder participation (and _not_ merely by the proposing 
organization).  One of the problems we had with the last round of HITs 
was a proposal for a HIT session to be planned and presented by a single 
part of the community, largely consisting of a presentation by one of 
its members and only minor roles for any sector not sympathetic to the 
views of this member and community group.  This was inconsistent with 
the idea that the proposing organization does not control the content of 
a HIT session.  Fortunately, the original planners agreed to to expand 
to a more diverse planning team, with the result being a more diverse 
panel and a very lively and well-received session.  When community 
leaders got on the phone to consider this round of HITs, we wanted to 
avoid a replay of this situation (although it ended well enough).

When this data protection session was brought to the community leaders 
group as a late suggestion for one of the HIT slots, I was concerned we 
might be heading for a replay, so the IPC specified that one of our 
members (Vicky) should be added to the planning group (knowing that at 
least one other constituency shared very similar concerns). Unlike the 
last time, where we were able to get a hand on the tiller and help turn 
the ship, I've found our attempts to be largely rebuffed.  This has been 
increasingly frustrating.

I'd like to respond to some of the specific statements on this thread 
since I last had an opportunity to respond:

Vicky wrote:
I don’t see here (but I am also sleep deprived) which panelist will 
represent public safety / transparency / enforcement concerns.

​
​Peter responded:
Uuhhh, if you are in US it is quite early for you…in my sense usually 
the governments are responsible and accountable for the issues you 
mentioned, therefore it seemed to me logical that those issues will be 
taken care by a representative of the GAC. Besides that, the PSWG is a 
sub-group of the GAC which is deliberately discussing those issues you 
mentioned…

​Greg: This misses the point of Vicky's question​ and perhaps misses a 
fundamental point about ICANN -- that it is a multistakeholder 
organization and /not/ a multilateral organization.  Governments are not 
the only ones concerned with investigation and enforcement -- there are 
also significant parts of the private sector deeply engaged in 
investigation and enforcement (and not to put too fine a point on it, 
but IPC (my group and Vicky's group) represents one of those parts of 
the private sector).  As such, at least one voice from these parts of 
the private sector should be present on the panel.  Even within 
governments, there are parts that deal with public safety and 
enforcement.  The idea that a representative of the GAC will provide 
this perspective seems mistaken.  As fine a chair as the GAC chair is, I 
don't believe this is his perspective, and the suggestion this would be 
within his brief seemed based more on protocol than practicality.  As 
revealed in this thread, Ms. Bauer-Bulst is the co-chair of the PSWG, so 
would be more on point for this perspective (though apparently she is 
not sufficiently august to appear on the panel, even if she is a Deputy 
Head of Unit, and not merely a Team Leader as was stated earlier in this 
exchange).

​​Peter replied to James Bladel in red below:
​


    Thanks, Peter.  Looks like I did miss this at some point, so please
    accept my apologies for the confusion.

    Generally, I"m ok with this, but a few thoughts:

    * I'm not sure what "sponsored" by the GNSO means in this context. 
    Maybe we could say something like "convened" or "supported" jointly
    by the GNSO & GAC?àthis expression was used by ICANN staff but I can
    only agree that those you suggested are much better.


​Greg: From my point of view, this support is predicated on the panel 
representing multiple perspectives.​

    ​

    * I think we need to keep the number panelists to an absolute
    minimum.àI agree. 3+3 should be the maximum (!).  If we strive to
    represent all seven GNSO SG/Cs, plus GAC, plus COE/DPAs, then this
    session runs the risk of becoming "Death by PowerPoint" and dosn't
    leave much time for Q&A.  To that end, I will let Graeme know that
    we are looking for a RrSG panelist, but would encourage them to
    reach out to Jim Galvin and see if he is comfortable representing
    industry generally. Or if we need another CPH person that can wear
    both "hats."ànot necessarily as Jim could represent it quite well, I
    am sure. (Being said that we would have preferred more focus on the
    industry itself and to the different players as they are the first
    level data controllers. All NCPH and GAC related groups are
    secondary only) But if the internal dynamic of GNSO is as such, be
    it, but in this case we suggest Becky Burr to be on the panel (and
    not being moderator).


Greg: ​ICANN and the GNSO are not merely about "the industry." If you 
wanted an industry facing program or a dialogue only with "the 
industry", the appropriate place for that would be the GDD (Global 
Domains Division) Summit.​  As the President of an "NCPH related group" 
I can assure you that our concerns about data protection and privacy are 
not "secondary" -- at least not to us and our stakeholder community.  
This further shows the problem of "perspectives" as this panel is being 
planned.

    * Similarly, I think the NCPH should strive for ~2 panelists. 
    Again, I apologize if the discussions were already headed in this
    direction, as I have lost track of the names proposed in this
    thread.àI really think that if CPH has one panellist NCPH should
    also has to have 1 only because of the arguments expressed above.

​Greg: Peter, you may not know it (or perhaps you may) but the NCPH is 
an umbrella over two parts of the GNSO -- the Commercial Stakeholder 
Group and the Non-Commercial Stakeholder Group.  There is no valid way 
that a single panelist could provide the sharply different perspectives 
of these two stakeholder groups.  Even having a single panelist 
representative the different perspectives of IP stakeholders, ISPs and 
Connectivity Providers, and ​the business user community is a stretch 
(which hopefully would be mitigated by Q&A).  I would say that if only 
panelist came from the NCPH, they should come from the CSG, as we would 
offer a more distinguishable perspective, but frankly that would be 
unfair to the Non-Commercial side of the house (which itself includes a 
range of viewpoints), and I don't want to be unfair to the NCSG and its 
constituencies either.

    àTherefore our suggestion for the panel: Becky Burr, Thomas
    Schneider, Jim Galvin


Greg: ​This neatly includes the contracted parties (Registries and 
Registrars) and excluded the commercial private sector represented in 
the NCPH.  This is not acceptable.  (Which is why James, as Chair of the 
GNSO, wisely suggested 2 panelists from the NCPH.)​

This description was provided by Peter:

    A community-wide event will be organised on 13 March 2017 under the
    form of a High Interest Topic “sponsored” by the Generic Names
    Supporting Organization (GNSO) Council (and possibly by the
    Governmental Advisory Committee (GAC) as well) which will enable the
    participation of interested ICANN communities.


Greg: ​We are an interested ICANN community and we have been seeking to 
participate and/or to have participation from the 
enforcement/cybercrime/infringement side of the roster.  So far with no 
success.
​

    The session could be jointly opened by the CEO of ICANN Board and
    the Director of Information Society and Action against Crime of the
    Council of Europe. During the session the United Nations’ Special
    Rapporteur on the right to privacy, the co-Chair of the Article 29
    Working Group and the European Data Protection Supervisor together
    with high level representatives of registries’ group, the
    registrars’ group and the GAC will address in 10 minutes each the
    above mentioned topics. During the session the involvement of the
    audience will be guaranteed by an open mike slot.

    I think during the last days, weeks we have reached an agreement on
    Ms Becky Burr moderating the panel and having James Galvin as
    representative for registries’ group (both seemed to agree on that).
    If we follow this logic we would need one representative from the
    GAC and one from registrars’ group. (We previously

    ​P​
    suggested that the chair of these communities could be invited to
    speak under these two slots).


​Greg: Not to sound like a broken record, but this emphasis on including 
the contracted parties to the exclusion of the non-contracted parties 
really runs counter to multistakeholder sensibilities.

If the emphasis is on "high level representatives" and "chairs" I would 
be willing to join the panel as the chair of my community, though we may 
have better candidates on substance (including Vicky, who is our vice 
chair).​

In response to my email asking what her goals for the panel were (and 
which stated much of what I've restated above), ​Stephanie Perrin wrote: 
Peter and the COE are organizing this.  I will let them explain the 
goals.  In my personal view....data protection commissioners are not 
present at ICANN.  The dialogue has been anything but robust, although 
they have been attempting to engage for many many years.

Vicky responded:

    It is clear we need additional perspectives to make this a robust
    panel.  I think james is a good addition and  we also need someone
    with Cathrin's perspective,


    Greg: We still need that perspective.

​Peter responded with COE's goals:

The panellists will be invited to exchange views on the privacy and data 
protection implications of processing of WHOIS data, third party access 
to personal data and the issue of accountability for the processing of 
personal data. The expected outcome of the event is a better mutual 
understanding of the underlying questions related to the protection of 
privacy and personal data and the strengthening of an open and inclusive 
dialogue on these issues, to be carried on anytime deemed necessary.​

Greg: We are among those "third parties" and we are seeking to be 
included in an open and inclusive dialogue, and to include the 
perspective of government as among those "third parties" as well.  I'm 
not sure why this has become quite so difficult.​

​Prior to that Peter wrote: ​

I really don’t want to hurt anybody personally, I find this exchange of 
mails rather odd [discussion of the importance of EDPS, correction of 
Ms. Bauer-Bulst's characterization of the EDPS as a "body that advises," 
  and the relative ranks of various potential panelists removed for space]

Greg: I'm not sure why you find this exchange of emails "rather odd", 
but perhaps it traces back to the mismatch between a community-planned 
HIT and a panel planned by the CoE.  These emails are our attempts at 
community planning -- again an essentially multistakeholder effort.

​In response to Stephanie's question to me "Who would you propose?" 
(responding to my view that we n​eeded a panel that represented multiple 
perspectives), Peter wrote:

I think we all are on the same page...therefore I suggest to include 
Becky Burr to this panel. She was recommended by other constituencies as 
well so if you agree we can move along.

Greg: I respect Becky immensely and already said she was a great choice 
on many counts.  Yet, the response above misses my point -- that we need 
perspectives beyond data protection officials and "the industry."

​Any more would be piling on, but I wanted to note just a couple more 
things.  One was Peter's suggestion that /The current state of 
preparation would imply the following meetings/-/a session with the GAC 
plenary,/-/a working lunch with the Board,/-/community wide afternoon 
session possibly in the format of an “High Interest 
Topic”./-/alternatively or subsequently a joint meeting with GNSO 
Council and ccNSO Council /-/bilateral meetings with NSCG, NCUC and ALAC/
/
/
​Greg: I would suggest that a bilateral meeting with the CSG (and not 
merely with the more /simpatico/​ community groups) should be 
considered, to say the least.  We would be honored to have such a 
meeting (and we don't bite).

Peter wrote, in response to Vicky:
Separately, please note I anticipate having some additional suggestions 
for consideration for this panel by the end of next week.àPlease do so, 
but you have to understand that it is rather strange that 1 month away 
of the event we don’t know who the speakers would be. We have also made 
suggestions which we believe enjoy the support of many in GNSO (and 
beyond) fellows and follows the idea of multi-stakeholderism and cover 
the main issues Victoria suggested us to take into account including 
third party access to data. I would recommend to consider those and come 
back to us as quickly as you can…

Greg: Given that this session was only suggested as a High Interest 
Topic on January 23, it's not so strange that we have not finalized the 
speakers list.  We began discussing the other HIT sessions quite a bit 
earlier.  That said, the sooner we can bring the necessary people with 
the necessary perspectives and the necessary protocol-sensitive rank 
(apologies for our insensitivity to protocol concerns; I guess Americans 
don't do well with rank, and one of the refreshing aspects of the ICANN 
milieu is that rank is generally absent from our considerations).

I will once again emphasize that GNSO is itself a multistakeholder 
organization so having "the support of many in GNSO" does not mean that 
your suggestions have the support of our part of the GNSO (hence, our 
attempts since late last month).  Leaving out the commercial sector does 
not quite follow the idea of multistakeholderism....

I would love nothing more for us to resolve this to our collective and 
individual satisfaction and move on.  I look forward to doing so.

Best Regards,

Greg Shatan
President
Intellectual Property Constituency

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