[NCSG-PC] [gnso-rds-pdp-wg] @EXT: RE: IMPORTANT: Invitation for Poll from 9 January Meeting

Tue Jan 16 23:01:29 EET 2018

Agreed, and the secondary purposes for processing should not be grounds 
for collection of data....there will be no end to the data desired by 
the IP community if we accede to that.  WHich is why I joined Steve 
Metalitz's little drafting group today, even though I am super busy.

I would draw your attention to the letter from the 5 Eyes law 
enforcement community in that report.  AS a former bureaucrat, you will 
recognize weasel words when you see them....most of the High Courts for 
the countries listed would not, and indeed have not, found in favour of 
these arguments for blanket data gathering for law enforcement 
purposes.  I would love to see the constitutional opinions sought, and 
am betting (based on those weasel words) that none were sought.This is 
not to say that further processing (release) to duly authorized agents, 
with due authority is not desireable and should not be 
accommodated.....it must.  But how to set this up is not a problem ICANN 
has tackled in good faith thus far, and it is high time.  In my opinion.

Stephanie

On 2018-01-16 11:51 AM, Nick Shorey wrote:
> Hi Stephanie,
>
> Thanks for sharing. For me there's an important distinction between 
> primary and secondary purposes, which now become more important 
> distinctions with regards to GDPR. IMHO LEA access is a legitimate 
> secondary purpose, and I have some thoughts / ideas on how that should 
> translate to access. I support a discussion on this and how we might 
> approach the debate.
>
> Kind regards,
>
> Nick
>
> Nick Shorey
> Phone: +44 (0) 7552 455 988
> Email: lists at nickshorey.com <mailto:lists at nickshorey.com>
> Skype: nick.shorey
> Twitter: @nickshorey
> LinkedIn: www.linkedin.com/in/nicklinkedin
> Web: www.nickshorey.com
>
>
>
>
>> On 15 Jan 2018, at 15:32, Stephanie Perrin 
>> <stephanie.perrin at mail.utoronto.ca 
>> <mailto:stephanie.perrin at mail.utoronto.ca>> wrote:
>>
>> Normally I would not pester the PC with every twitch and stumble of 
>> the RDS working group...but we are now in some important discussions 
>> as to whether law enforcement investigation is a valid reason for the 
>> collection of information in the RDS.  We just actually got a 
>> consensus agreement it was NOT....which surprised me.  However, 
>> EUROPOL, who was the driving force behind the dreadful 2007 LE demand 
>> for data, is coming out of their corner, and the IP lawyers will be 
>> quick to support.  A discussion at our next policy meeting might be 
>> good....I attach the letter from report which contains the 2009 LEA 
>> communications for your perusal, see page 129 .
>>
>> Steph
>>
>> -------- Forwarded Message --------
>> Subject: 	[gnso-rds-pdp-wg] @EXT: RE: IMPORTANT: Invitation for Poll 
>> from 9 January Meeting
>> Date: 	Mon, 15 Jan 2018 13:30:04 +0000
>> From: 	Mounier, Grégory<gregory.mounier at europol.europa.eu>
>> To: 	'Chuck'<consult at cgomes.com>, 
>> 'gnso-rds-pdp-wg at icann.org'<gnso-rds-pdp-wg at icann.org>
>>
>>
>>
>> Dear all,
>>
>> I will not be able to join the call tomorrow so I thought that I 
>> should drop an email to the list to explain why I voted against the 
>> proposed possible WG Agreement according to which “/Criminal 
>> Activity/DNS Abuse – Investigation is NOT a legitimate purpose for 
>> requiring collection of registration data, but maybe a legitimate 
>> purpose of using some data collected for other purposes/.”
>>
>> I think that there are a number of rationales/grounds - including in 
>> ICANN’s Bylaws - to argue that in fact, investigating criminal 
>> activity and DNS Abuse*IS*a legitimate purpose for requiring the 
>> collection of registration data.
>>
>> Some of these rationales have been mentioned during the discussion on 
>> the mailing list and during the call on 9^th January. Unfortunately, 
>> I think that the proposed possible WG agreement does not take into 
>> consideration these rationales. I specifically disagree with the 
>> assumption that we should make a distinction between 1) the purpose 
>> of collecting the data and 2) the purpose for using the data 
>> collected for other purposes (manage domain registrations).
>>
>> The reason why I disagree with making this distinction is that it 
>> leads to artificially reduce the importance of a valid and legitimate 
>> purpose of the WHOIS system, acknowledged by ICANN Bylaws: addressing 
>> malicious abuse of the DNS and providing a framework to address 
>> appropriate law enforcement needs. (ICANN’s mandate is to “ensure the 
>> stable and secure operation of the internet’s unique identifier 
>> systems”^^[1] <x-msg://3/#_ftn1>+ WHOIS data is essential for “the 
>> legitimate needs of law enforcement” and for “promoting consumer 
>> trust.”^^[2] <x-msg://3/#_ftn2>). In its document on the three 
>> compliance models issued last Friday^^[3] <x-msg://3/#_ftn3>, ICANN 
>> has explicitly included: addressing the needs of law enforcement, 
>> investigation of cybercrime and DNS abuse as legitimate purposes of 
>> the WHOIS system.
>>
>> If one of the purpose of the WHOIS system is to support a framework 
>> to address issues involving domain name registrations, including 
>> investigation of cybercrime and DNS abuse, it can be argued that 
>> investigating criminal activity and DNS abuse IS a legitimate purpose 
>> for requiring the collection of registration data. Likewise, I think 
>> that requiring collection of registration data to prevent crime is 
>> NOT beyond ICANN's mandate because this data is essential for ICANN 
>> to fulfil its mandate.
>>
>> I have attached a list of relevant references supporting this point 
>> of view taken from ICANN’s Bylaws and the GDPR.
>> I hope that you’ll find this contribution helpful and I’m looking 
>> forward to reading the transcript of the next callJ.
>>
>> Best,
>>
>> Greg
>>
>> Gregory Mounier
>> Europol
>> European Cybercrime Centre
>> +31 6 55782743
>> *From:*gnso-rds-pdp-wg [mailto:gnso-rds-pdp-wg-bounces at icann.org]*On 
>> Behalf Of*Chuck
>> *Sent:*12 January 2018 15:21
>> *To:*gnso-rds-pdp-wg at icann.org <mailto:gnso-rds-pdp-wg at icann.org>
>> *Subject:*[gnso-rds-pdp-wg] FW: IMPORTANT: Invitation for Poll from 9 
>> January Meeting
>> *Importance:*High
>> The response to this week’s poll is particularly low so I strongly 
>> encourage more members to respond so that we have enough data to help 
>> us in our meeting next week.  Thanks to those who have already responded.
>> Chuck
>> *From:*gnso-rds-pdp-wg [mailto:gnso-rds-pdp-wg-bounces at icann.org]*On 
>> Behalf Of*Marika Konings
>> *Sent:*Wednesday, January 10, 2018 7:27 AM
>> *To:*gnso-rds-pdp-wg at icann.org <mailto:gnso-rds-pdp-wg at icann.org>
>> *Subject:*[gnso-rds-pdp-wg] IMPORTANT: Invitation for Poll from 9 
>> January Meeting
>> Dear all,
>> In follow-up to this week’s WG meeting, *all RDS PDP WG Members* are 
>> encouraged to participate in the following poll:
>> https://www.surveymonkey.com/r/VM6S8YK
>> Responses should be submitted through the above URL. For offline 
>> reference, a PDF of poll questions can also be found at:
>> https://community.icann.org/download/attachments/74580034/Poll-from-9January-Call.pdf?version=1&modificationDate=1515544361000&api=v2
>> *This poll will close at COB Saturday 13 January. *
>> Please note that you _must be a WG Member_ to participate in polls. 
>> If you are a WG Observer wishing to participate in polls, you must 
>> first contact gnso-secs at icann.org <mailto:gnso-secs at icann.org> to 
>> upgrade to WG Member.
>> Best regards,
>> Marika
>> */Marika Konings/*
>> /Vice President, Policy Development Support – GNSO, Internet 
>> Corporation for Assigned Names and Numbers (ICANN) /
>> /Email://marika.konings@icann.org/ <mailto:marika.konings at icann.org>//
>> //
>> /Follow the GNSO via Twitter @ICANN_GNSO/
>> /Find out more about the GNSO by taking our //interactive courses/ 
>> <http://learn.icann.org/courses/gnso>/ and visiting the //GNSO 
>> Newcomer pages/ 
>> <http://gnso.icann.org/sites/gnso.icann.org/files/gnso/presentations/policy-efforts.htm#newcomers>/. 
>> /
>>
>> ------------------------------------------------------------------------
>> [1] <x-msg://3/#_ftnref1>ICANN Bylaws Article One, Section 1.1, Mission.
>> [2] <x-msg://3/#_ftnref2>ICANN Bylaws, Registration Directory 
>> Services Review, §4.6(e).
>> [3] 
>> <x-msg://3/#_ftnref3>https://www.icann.org/en/system/files/files/interim-models-gdpr-compliance-12jan18-en.pdf
>> *******************
>>
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>> legitimate_purpose_for_collection_of_registration_data.pdf><Attached 
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