[NCSG-PC] [Draft] Letter to ICANN re: BC and IPC correspondence

Sun Oct 15 18:33:20 EEST 2017

Hi Rafik,

Thanks for your comments.

I think we need to be explicit with what we are asking, clear that our words are not an empty threat, and definitive that consequences will follow if ICANN does not meet its obligations under the GDPR.

I am happy for us to send the attached letter with Martin's revisions, though I think it does now sound like an empty threat. The ambiguity sounds to me like we do not know what our course of action will be, when that is incorrect. In the previous draft we were very clear: if ICANN does not comply with European data protection law, we will evail ourselves next May of the Data Protection Commissioners and if necessary, see you in Court. But we have spent a week trying to get comments on this letter and speaking only for myself, my motivation is now fading. We have other comments to write; so if there is consensus on this letter as attached, we might as well send it. If we do not, let's not.

I have tried multiple times over the past two weeks to have a conversation around next steps. I have tried on the policy call, on this list, on Skype channels to talk campaigns. We all have our own interests at ICANN and follow different topics; I get that. This is something I am following so I have more time for it. And it is for that reason that I say, we are not going to get allies like AccessNow or EDRi if we ourselves cannot take the time to discuss a path forward. And I feel very strongly that if we reach out to others, we should not be asking for much more than a signature on a letter. It needs to be a part of a campaign that we are leading. We cannot expect them to take the lead here. We are in the ICANN working groups, being ignored and observing ICANN's non-compliance, and our civil society members have their own priorities which I am sure they have already budgeted for for FY18. So this is on us. I think a face-to-face meeting in Abu Dhabi - separate from our policy committee meeting if possible - is essential if we decide to take this campaign forward, and I think we should.

But we might decide that we will not launch a campaign next year, because we are not committed to this issue. I kind of get that feeling.

Ayden

> -------- Original Message --------
> Subject: Re: [NCSG-PC] [Draft] Letter to ICANN re: BC and IPC correspondence
> Local Time: 15 October 2017 3:11 AM
> UTC Time: 15 October 2017 02:11
> From: rafik.dammak at gmail.com
> To: Stephanie Perrin <stephanie.perrin at mail.utoronto.ca>
> Martin Pablo Silva Valent <mpsilvavalent at gmail.com>, Ayden Férdeline <icann at ferdeline.com>, ncsg-pc at lists.ncsg.is <ncsg-pc at lists.ncsg.is>
>
> Hi all,
>
> thanks for those participating in the editing.
> I understand the concerns about using a threat language. I am wondering how much we should be strategical here.  We should escalate gradually (and assertively) depending on the situation, but putting nuclear option, in the beginning, may not work. There is a sense of emergency here and we have to act quickly.
>
> I believe we should have a discussion about the strategy we should follow and if we want to go into the campaign path, getting media attention and so we would need to have a clear plan, get allies and experienced folks to support us.  As I shared in RDS channel, there was some effort during Privacy/Proxy service public comments and we can learn from that.  I brought that experience because it let many outsiders be aware of the situation and send their comments. I understand that is a different context but we can start by leveraging our membership: EDRi,  EFF, Accessnow and many others, I volunteer with others to reach them.
>
> I think we can shape a letter expressing strongly our concerns and so we must continue the discussion in Abud Dhabi for next steps ( we will need to allocate time for that on formal and informal meetings) to outline a plan to follow.
>
> let's finalize this letter, it is timing will be just 2 weeks prior to Abu Dhabi meeting.
>
> Best,
>
> Rafik
>
> 2017-10-15 5:21 GMT+09:00 Stephanie Perrin <stephanie.perrin at mail.utoronto.ca>:
>
>> Very nice edit.
>>
>> Stephanie.
>>
>> On 2017-10-14 13:39, Martin Pablo Silva Valent wrote:
>>
>>> I won’t mess the document, so I put it here: I basically took out two phrases: the one were it says we would apply to DP authorities, and the ending were it says we would go to court.
>>>
>>> This is strong and vague enough for us to do whatever we feel necessary and we outline the hard-risk real risk of ignoring GDPR (a subtle hint if you may).
>>>
>>> "As active stakeholders in the ICANN multistakeholder community, we want to participate in the policy changes which will see ICANN come into compliance with data protection law after a 19-year record of sweeping it under the rug. However, if we are excluded from the process, and feel that once again certain stakeholders with everything to gain and nothing to lose from the collection of end-user data are getting the ear of senior management, whilst we get the cold shoulder, we are afraid that we will have to take all actions at our disposal regarding ICANN’s continued, 19-year streak of non-compliance with data protection law. As we are sure you are aware, the new GDPR gives individuals the right to sue the Data Protection Authorities for failure to protect end-user rights, which ultimately will impact in the DNS use and ICANN itself."
>>>
>>> Cheers,
>>> Martín
>>>
>>>> On Oct 14, 2017, at 1:20 PM, Ayden Férdeline <icann at ferdeline.com> wrote:
>>>>
>>>> Hi Martin,
>>>>
>>>> Thank you very much for reviewing the draft letter. I appreciate you taking the time. Could I please ask that you edit the Google Doc directly and massage the final paragraph, so that you are happy with it? I think we do need to be forceful and punch back. I disagree that we should only go through the GAC or follow GNSO processes to be heard. We are, by design, being excluded from the conversation on this issue, and a flaw in the multistakeholder model has become apparent (at least to me). I think we should avail ourselves of all legal avenues through which we can seek a resolution to gTLD policies so to protect fundamental rights, such as the right to privacy. To box ourselves in and to forever subject ourselves only to a process flawed by design would, I think, be a mistake. Thanks again.
>>>>
>>>> Best wishes, Ayden
>>>>
>>>>> -------- Original Message --------
>>>>> Subject: Re: [NCSG-PC] [Draft] Letter to ICANN re: BC and IPC correspondence
>>>>> Local Time: 14 October 2017 4:38 PM
>>>>> UTC Time: 14 October 2017 15:38
>>>>> From: mpsilvavalent at gmail.com
>>>>> To: Ayden Férdeline <icann at ferdeline.com>
>>>>> Stephanie Perrin <stephanie.perrin at mail.utoronto.ca>, ncsg-pc at lists.ncsg.is <ncsg-pc at lists.ncsg.is>
>>>>>
>>>>> To help this letter hit the spot, is already perfect, but for the last paragraph:
>>>>>
>>>>> 1) Threatening to go with a public official NCSG campaign with State agencies of Europe to hit ICANN, to force the MS model, is a very bad idea. As NCSG, we should only go to governments through the GAC and keep using our GNSO procedures to complain if we are being left out. Going berserk on ICANN with borrowed state power breaks the whole model, something that is way beyond what we need to do in this case. It’s a dangerous precedent. Why Europe? What about other jurisdictions? other states? We can still coordinate with the GAC, and as non-commercial activists we can do public campaigns and state claims in defense of our rights, but it should not be an NCSG action. We have procedures to escalate the problem inside the model, let’s use them fearless. Let’s call the ombudsman, keep writing to the board, fill the open mic, massively go into working group coordinating our members, etc (we have councilors!). Asking data protection agencies to put pressure for us, in NCSG name, outside the process we set for ourselves is not ok, is a pandora box of precedent.
>>>>>
>>>>> 2) Even if we all agree that NCSG should ask a governmental agency to put it’s nose in the GNSO process, which I am NOT saying we do, the paragraph hits a big brick wall of rhetoric problems. If you read the letter, the letter is perfect, is reasonable, is harsh, it makes you blush to think the issue is at such a poor situation. Is backed by other stakeholder, opposite to you. Once you read the threat you loose all the communication bridges you build before in the letter. Anyone with some knowledge of the GNSO will stop thinking on the ICANN problem of addressing GDPR, they will read that NCSG is threatening, to go to EU to force ICANN, and the multistakeholder model.
>>>>>
>>>>> 3) The letter is perfect, we do need a punch in the last paragraph that states both our level of concern, alert and the demand to be heard. But we should threaten to use either specific tools of the ICANN Process, or a vague thing that allows us to afterward choose the best tool.
>>>>>
>>>>> Cheers,
>>>>> Martín
>>>>>
>>>>>> On Oct 13, 2017, at 6:55 PM, Ayden Férdeline <icann at ferdeline.com> wrote:
>>>>>>
>>>>>> Hi Martin, thank you very much for this feedback. I take it on board and hear what you are saying. However, I am afraid that I do disagree. I think we need to be forceful. From what I understand we have been ignored and sidelined for 19 years. I think it is important we punch back and let ICANN know that we are serious about being able to input into this conversation, or we will avail ourselves of alternative mechanisms. To that end, we will need to start thinking about campaign tactics too -- that is something I have been thinking about for next year; what are the next steps, when do we launch, and what do we need? I think the time for diplomacy was a year ago (or longer), and now is the time for action.
>>>>>>
>>>>>> Warm wishes, Ayden
>>>>>>
>>>>>>> -------- Original Message --------
>>>>>>> Subject: Re: [NCSG-PC] [Draft] Letter to ICANN re: BC and IPC correspondence
>>>>>>> Local Time: 13 October 2017 10:49 PM
>>>>>>> UTC Time: 13 October 2017 21:49
>>>>>>> From: mpsilvavalent at gmail.com
>>>>>>> To: Ayden Férdeline <icann at ferdeline.com>
>>>>>>> Stephanie Perrin <stephanie.perrin at mail.utoronto.ca>, ncsg-pc at lists.ncsg.is <ncsg-pc at lists.ncsg.is>
>>>>>>>
>>>>>>> I’ve been following the doc, it looks great. I would be much more mellow and diplomatic in the las paragraph, not threaten things, like going public with a campaign with data protection agencies. I think we shouldn’t promote agencies as policeman of ICANN, I understand we are waiving that in the event the multi-stakeholder model fails to include as as stakeholder, yet, I wouldn’t set that as precedent and I do not recommend to make it before the actual exclusion of the process happen, much less by  by written official letter.
>>>>>>>
>>>>>>> I do believe that we have to talk about alternative strategies, but not in a letter like this, is a very big threat with deep implication, I wouldn’t recommend to go with that nor sign it as official NCSG position. Reminder: ONLY ABOUT THE LAST PARAGRAPH, the rest looks amazing and I still think we should make clear the point we must be taken in account. Just take away the threat.
>>>>>>>
>>>>>>> Cheers,
>>>>>>> Martín
>>>>>>>
>>>>>>>> On Oct 13, 2017, at 6:42 PM, Ayden Férdeline <icann at ferdeline.com> wrote:
>>>>>>>>
>>>>>>>> Thanks Stephanie, I tend to agree. I have attached a copy of the letter which includes the Chair's name.
>>>>>>>>
>>>>>>>> Ayden
>>>>>>>>
>>>>>>>>> -------- Original Message --------
>>>>>>>>> Subject: Re: [NCSG-PC] [Draft] Letter to ICANN re: BC and IPC correspondence
>>>>>>>>> Local Time: 13 October 2017 10:33 PM
>>>>>>>>> UTC Time: 13 October 2017 21:33
>>>>>>>>> From: stephanie.perrin at mail.utoronto.ca
>>>>>>>>> To: Ayden Férdeline <icann at ferdeline.com>
>>>>>>>>> ncsg-pc at lists.ncsg.is <ncsg-pc at lists.ncsg.is>
>>>>>>>>>
>>>>>>>>> It should be signed by the Chair on behalf of, in my view.
>>>>>>>>>
>>>>>>>>> cheers Steph
>>>>>>>>>
>>>>>>>>> On 2017-10-13 17:27, Ayden Férdeline wrote:
>>>>>>>>>
>>>>>>>>>> Hi all,
>>>>>>>>>>
>>>>>>>>>> I have done some final polishing to the letter, and have attached a proposed final draft. I hope we may be able to reach agreement soon on sending this letter. Also - I was wondering, should it carry a name, perhaps of the Chair, or is it okay to be signed 'NCSG'?
>>>>>>>>>>
>>>>>>>>>> Many thanks, Ayden
>>>>>>>>>>
>>>>>>>>>>> -------- Original Message --------
>>>>>>>>>>> Subject: Re: [NCSG-PC] [Draft] Letter to ICANN re: BC and IPC correspondence
>>>>>>>>>>> Local Time: 13 October 2017 7:59 PM
>>>>>>>>>>> UTC Time: 13 October 2017 18:59
>>>>>>>>>>> From: icann at ferdeline.com
>>>>>>>>>>> To: Stephanie Perrin [<stephanie.perrin at mail.utoronto.ca>](mailto:stephanie.perrin at mail.utoronto.ca), ncsg-pc at lists.ncsg.is
>>>>>>>>>>>
>>>>>>>>>>> I think it is the perfect tone for this letter. As we saw in Hong Kong this month, our public silence is being manipulated and used to make the false claim that we are being consulted with and are an integral part of ICANN's efforts to comply with the GDPR, when we are not. Thanks for these edits Stephanie. We need to reshape the narrative and get it all documented.
>>>>>>>>>>>
>>>>>>>>>>> Ayden Férdeline
>>>>>>>>>>> Sent from ProtonMail Mobile
>>>>>>>>>>>
>>>>>>>>>>> On Fri, Oct 13, 2017 at 7:14 pm, Stephanie Perrin <stephanie.perrin at mail.utoronto.ca> wrote:
>>>>>>>>>>>
>>>>>>>>>>>> I jumped in today (apologies for being anonymous, always forget my google password) and made quite a few changes.  I like the idea, but I think we should be a bit more specific.  In terms of informing the DPAs....Swineheart is trying to get people to the IWGDPT meeting in Paris, I think everyone has been briefed at the data commissioners meeting in Hong kong (remember a whole crew from ICANN went) that there is a draft statement coming. So they know we have been briefing them for two years, we need to sharpen that a bit.
>>>>>>>>>>>>
>>>>>>>>>>>> Let me know if you think it was a bit too strong.  I will confess, I am losing my patience with this lot.  They spend gobs of money gadding around trying to nullify end user rights.  Totally ignore us.  Ought to be ashamed of themselves.
>>>>>>>>>>>>
>>>>>>>>>>>> Stephanie
>>>>>>>>>>>>
>>>>>>>>>>>> On 2017-10-13 07:05, Rafik Dammak wrote:
>>>>>>>>>>>>
>>>>>>>>>>>>> hi,
>>>>>>>>>>>>>
>>>>>>>>>>>>> reminder for everyone to review the letter and share comments.
>>>>>>>>>>>>>
>>>>>>>>>>>>> Best,
>>>>>>>>>>>>>
>>>>>>>>>>>>> Rafik
>>>>>>>>>>>>>
>>>>>>>>>>>>> 2017-10-11 4:28 GMT+09:00 Ayden Férdeline <icann at ferdeline.com>:
>>>>>>>>>>>>>
>>>>>>>>>>>>>> Also - I have now revised this letter again taking into account the helpful feedback that was received over the past 48 hours; moving forward, please feel free to edit the document directly if you have any changes you'd like to see made. Thanks!
>>>>>>>>>>>>>> Ayden
>>>>>>>>>>>>>>
>>>>>>>>>>>>>>> -------- Original Message --------
>>>>>>>>>>>>>>> Subject: Re: [NCSG-PC] [Draft] Letter to ICANN re: BC and IPC correspondence
>>>>>>>>>>>>>>> Local Time: 10 October 2017 7:44 PM
>>>>>>>>>>>>>>> UTC Time: 10 October 2017 18:44
>>>>>>>>>>>>>>> From: icann at ferdeline.com
>>>>>>>>>>>>>>> To: Rafik Dammak <rafik.dammak at gmail.com>
>>>>>>>>>>>>>>> ncsg-pc <ncsg-pc at lists.ncsg.is>
>>>>>>>>>>>>>>>
>>>>>>>>>>>>>>> Hi Rafik,
>>>>>>>>>>>>>>>
>>>>>>>>>>>>>>> Thank you very much for your comments.
>>>>>>>>>>>>>>>
>>>>>>>>>>>>>>> It would be great if we could finalise this letter by Friday and perhaps even send it out that day. I very much welcome edits directly to the Google Doc; everyone on this list, please help write it and shape its contents!
>>>>>>>>>>>>>>>
>>>>>>>>>>>>>>> I would also like to propose that we write a monthly letter to ICANN on this topic until May 2018, when enforcement of the GDPR comes into effect. That way we can document for the data protection authorities that we have been informing ICANN in excess of six months of their need to comply with this regulation.
>>>>>>>>>>>>>>>
>>>>>>>>>>>>>>> The feedback from Nick Shorey on the PC call today - that we need to help engineer a conversation between the DPAs and their GAC representatives - is an interesting one, and one which seemed to have support in the chat. How would we go about this, however? Do we write to the GAC? Do we express this desire to them in Abu Dhabi during our face-to-face with them?
>>>>>>>>>>>>>>>
>>>>>>>>>>>>>>> Best wishes,
>>>>>>>>>>>>>>>
>>>>>>>>>>>>>>> Ayden
>>>>>>>>>>>>>>>
>>>>>>>>>>>>>>>> -------- Original Message --------
>>>>>>>>>>>>>>>> Subject: Re: [NCSG-PC] [Draft] Letter to ICANN re: BC and IPC correspondence
>>>>>>>>>>>>>>>> Local Time: 10 October 2017 5:33 AM
>>>>>>>>>>>>>>>> UTC Time: 10 October 2017 04:33
>>>>>>>>>>>>>>>> From: rafik.dammak at gmail.com
>>>>>>>>>>>>>>>> To: Ayden Férdeline <icann at ferdeline.com>
>>>>>>>>>>>>>>>> ncsg-pc <ncsg-pc at lists.ncsg.is>
>>>>>>>>>>>>>>>>
>>>>>>>>>>>>>>>> Hi Ayden,
>>>>>>>>>>>>>>>>
>>>>>>>>>>>>>>>> Thanks for the draft,
>>>>>>>>>>>>>>>> it is important we make a point to voice our concerns and influence the process. as we discussed before here and on the last call we got 2 problems 1- our representatives in taskforce not being informed 2- the last Data protection conference (that is already passed)
>>>>>>>>>>>>>>>>
>>>>>>>>>>>>>>>> for the current letter, indeed we should tweak the language there ;) while we keep the substance. reading IPC letter, it seems they reject the use case matrix and I understood from previous comments you think that doesn't include our perspective. I add few comments but I think we can add more, in particular, our concerns in general regarding the process and not just responding to BC and IPC requests.
>>>>>>>>>>>>>>>>
>>>>>>>>>>>>>>>> I ask other PC members to review the letter and share their thoughts. I put the GDPR as a discussion item for today call. We need a deadline to get this done and prior to Abud Dhabi meeting if we may want to continue the discussion there and depending on how things go with the cross-community session. I propose that we reach a new version by this Friday.
>>>>>>>>>>>>>>>>
>>>>>>>>>>>>>>>> Best,
>>>>>>>>>>>>>>>>
>>>>>>>>>>>>>>>> Rafik
>>>>>>>>>>>>>>>>
>>>>>>>>>>>>>>>> 2017-10-08 23:07 GMT+09:00 Ayden Férdeline <icann at ferdeline.com>:
>>>>>>>>>>>>>>>>
>>>>>>>>>>>>>>>>> Hi,
>>>>>>>>>>>>>>>>>
>>>>>>>>>>>>>>>>> I have drafted a letter to ICANN in response to the recent correspondence received from the BC and the IPC. [You can read/edit it here.](https://docs.google.com/document/d/13ujYOpJFL0eNvjQCiNmsduFFbiUPQC5Wmbe9wHC2K6Q/edit?usp=sharing) I know the language is provocative (intentionally so), but this is a first draft -- and if you disapprove please provide alternative language.
>>>>>>>>>>>>>>>>>
>>>>>>>>>>>>>>>>> Best, Ayden
>>>>>>>>>>>>>>>>>
>>>>>>>>>>>>>>>>> ______________________________ _________________
>>>>>>>>>>>>>>>>> NCSG-PC mailing list
>>>>>>>>>>>>>>>>> NCSG-PC at lists.ncsg.is
>>>>>>>>>>>>>>>>> https://lists.ncsg.is/mailman/listinfo/ncsg-pc
>>>>>>>>>>>>>
>>>>>>>>>>>>> ______________________________
>>>>>>>>>>>>>
>>>>>>>>>>>>> _________________
>>>>>>>>>>>>> NCSG-PC mailing list
>>>>>>>>>>>>> NCSG-PC at lists.ncsg.is
>>>>>>>>>>>>>
>>>>>>>>>>>>> [https://lists.ncsg.is/mailman/
>>>>>>>>>>>>>
>>>>>>>>>>>>> listinfo/ncsg-pc](https://lists.ncsg.is/mailman/listinfo/ncsg-pc)
>>>>>>>>
>>>>>>>> <Proposed Letter - Chair Name.pdf>_______________________________________________
>>>>>>>> NCSG-PC mailing list
>>>>>>>> NCSG-PC at lists.ncsg.is
>>>>>>>> https://lists.ncsg.is/mailman/listinfo/ncsg-pc
>>
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