[NCSG-PC] Fwd: [NCSG-Discuss] Comments on the Whois compliance models

Kathy Kleiman kathy at kathykleiman.com
Mon Jan 29 19:52:49 EET 2018


Hi All,

I would like to support Stephanie's comments and I am sorry her computer 
broke down at such a critical moment. But I do want to share that her 
comments are brilliant and well-reasoned -- and walk us through the 
complexities of a very difficult area. As befits the co-author of the 
Canadian data protection law, her analysis of the requirements of GDPR 
and the short-comings of the models is important and badly needed. It's 
a "real-world" analysis for a situation we have in front of us - ICANN 
and real companies in the registration industry trying to comply with 
the GDPR and data protection laws around the world. I fully endorsing 
adopting as much as possible from her comments.

Also safe travels to LA!

Best regards, Kathy


On 1/28/2018 8:14 AM, Stephanie Perrin wrote:
>
> I am sorry I let you down.  To be frank, the discussion on the main 
> list was all over the map, my desire to throw my comment out there to 
> be trashed by folks not following these matters was pretty minimal.  
> However, I have had a complete meltdown with my computer and my ISP, 
> which slowed me down enormously, and there was no room for error.
>
> Here are a few compromise positions:
>
> 1.  I can summarize at the end of the analysis of the different 
> positions, the various views (I acknowledged EFF's position but did 
> not go into it.
>
> 2.  I can add a more thorough discussion of the law enforcement ask, 
> the IP lawyer ask, etc. and why option 3 deals with those issues 
> successfully.
>
> 3.  I can discuss the data commissioner's expressed views on these 
> matters. There will be no support from them for a wholesale cutting 
> off of access for cyber investigators.  IF you have any ideas on how 
> to square that circle, I am all ears.  It is a big problem....while I 
> can be accused of caving in to a moderate position because I have been 
> both a govt policy/legislative wonk and an exec in a privacy 
> commissioner's office, I think you have to acknowledge I have decades 
> of experience fighting off law enforcement in back rooms.  If we want 
> to be taken seriously, we have to acknowledge there is a problem. (it 
> is of course their fault there is a problem, but that is another 
> narrative....)
>
> I am also very happy saying there is a wide range of views in NCSG.  
> But if you want a narrow answer to the question of whether it is 2b or 
> 3, please pay attention to what Goran said in the IPC webinar the 
> other day...do not feel tied to 1,2, or 3, we simply pulled them into 
> models. COmments on all aspects raised, suggestions of other models 
> etc are welcome.
>
> SO I think we can say of your models we like 2b for this, 3 for that, 
> and our favorite proposal so far is the ECO one.  Strategically, and 
> bearing in mind we still have years of pdps ahead of us and this is an 
> interim measure, supporting the registrars seems to me a good idea, 
> particularly when they have gone to the work and expense they have to 
> produce an excellent proposal.
>
> Have to go drop  the dog at camp, perhaps we can talk this evening in 
> LA or tomorrow morning at breakfast?
>
> cheers Steph
>
> On 2018-01-28 10:36, farzaneh badii wrote:
>> I tell you what is sticking in my throat Stephanie: You are way too 
>> late and we relied on you and you delivered late. I don't want Law 
>> Enforcement be viewed as legitimate force globally and you know where 
>> I am from. Does Eco model address my worry?
>>
>> Farzaneh
>>
>> On Sun, Jan 28, 2018 at 10:29 AM, Stephanie Perrin 
>> <stephanie.perrin at mail.utoronto.ca 
>> <mailto:stephanie.perrin at mail.utoronto.ca>> wrote:
>>
>>     Well I am sorry that I did not get the comment in as well. There
>>     is a lot to read and I have read it (unlike many).  WE need to
>>     know where the opposition is coming from.
>>
>>     The ECO comments have been out there a while, and they deal with
>>     the models.  There is absolutely nothing wrong with endorsing
>>     another group's position. Their legal analysis is excellent, in
>>     my view.
>>
>>     Ignoring the reality that there is a cybercrime problem out there
>>     is, in my view, not a thoughtful position to take.  I can attempt
>>     to reword it if you point me to precisely what is sticking in
>>     your throats.  We want layered access....a failure to support
>>     layered access at this point in time will set us back years, we
>>     finally have ICANN agreeing to it.
>>
>>     I am happy to send my comments in myself if you don't support
>>     them.  I think they are well informed and realistic.  I think
>>     Option 3 was thrown out there as a poison pill and I am not
>>     taking it.
>>
>>     let me know.....
>>
>>     cheers Steph
>>
>>     On 2018-01-28 09:50, farzaneh badii wrote:
>>>     Hello Stephanie
>>>
>>>     Is eco model in the models that offered by Icann? Is it model 2b
>>>     which you supported in the doc you sent us? If not then we
>>>     cannot support it now. I suggest going for the highest
>>>     protection now until we work out something better. You can
>>>     always go down from highest protection to layered access etc but
>>>     for now and since we don't have much time to reach consensus I
>>>     think we can stick to model 3.  I wish you had sent us your
>>>     document sooner so that we could work on it. Also your argument
>>>     for not supporting model 3 in the document is not really based
>>>     on substance it's based on the fact that it won't get support in
>>>     the community. There is a May deadline. Community can come up
>>>     with consensus after the deadline on another leas protective
>>>     model.  but ICANN org can't wait!
>>>
>>>     I suggest pc members weigh in on this deadline is tomorrow and
>>>     we would like to know our positoon before the intersessional.
>>>
>>>     On Sun, Jan 28, 2018 at 9:17 AM Stephanie Perrin
>>>     <stephanie.perrin at mail.utoronto.ca
>>>     <mailto:stephanie.perrin at mail.utoronto.ca>> wrote:
>>>
>>>         I will try to get the revised comments on the models that
>>>         have been submitted in before I run for  the plane at 2
>>>         EDT...but that may not happen.  The legal analysis will come
>>>         next week, it is a lot harder and more complex....but I want
>>>         to get my questions on the table.  It will be a long time
>>>         before this is over....
>>>
>>>         We need to endorse the ECO model very strongly, in my view.
>>>         While option 3 looks good, it is rather unworkable.
>>>
>>>         cheers SP
>>>
>>>         On 2018-01-27 14:09, Ayden Férdeline wrote:
>>>>         Thanks Rafik
>>>>
>>>>         I’m going to hold off on endorsing this for 24 hours until
>>>>         I read the comments currently being drafted by Stephanie.
>>>>
>>>>         To be clear, this is not to say that I do not endorse this
>>>>         statement. It sounds logical to me and consistent with our
>>>>         principles. But if Stephanie has a 15-page document coming
>>>>         I’d like to make sure we’re being consistent in our messaging.
>>>>
>>>>         Of course, being so close to the final day for
>>>>         submissions, I’ll write again on-list tomorrow in the
>>>>         absence of any other statements being on the table, as we
>>>>         cannot miss this submission deadline.
>>>>
>>>>         Sincere thanks to Milton for drafting this.
>>>>
>>>>         Best wishes, Ayden
>>>>
>>>>         Sent from ProtonMail Mobile
>>>>
>>>>
>>>>         On Sat, Jan 27, 2018 at 10:50, Rafik Dammak
>>>>         <rafik.dammak at gmail.com <mailto:rafik.dammak at gmail.com>> wrote:
>>>>>         Hi all,
>>>>>
>>>>>         We got a comment for the GDPR compliance model. The
>>>>>         deadline for submission ins the 29th Jan, which is the
>>>>>         coming monday. We need act quickly within this weekend .
>>>>>
>>>>>         Best,
>>>>>
>>>>>         Rafik
>>>>>
>>>>>         ---------- Forwarded message ----------
>>>>>         From: "Mueller, Milton L" <milton at gatech.edu
>>>>>         <mailto:milton at gatech.edu>>
>>>>>         Date: Jan 26, 2018 6:05 PM
>>>>>         Subject: [NCSG-Discuss] Comments on the Whois compliance
>>>>>         models
>>>>>         To: <NCSG-DISCUSS at listserv.syr.edu
>>>>>         <mailto:NCSG-DISCUSS at listserv.syr.edu>>
>>>>>         Cc:
>>>>>
>>>>>             I offer the following as a first draft of the NCSG
>>>>>             position on the 12 January 2018 call for comments
>>>>>             released by ICANN org.
>>>>>
>>>>>             Principles
>>>>>
>>>>>             Our evaluation of the models offered by ICANN are
>>>>>             based on three fundamental principles. No model that
>>>>>             fails to conform to all three is acceptable to the NCSG.
>>>>>
>>>>>             1. The purpose of whois must be strictly tied to
>>>>>             ICANN's mission. That is, the data that is collected
>>>>>             and the data that are published must directly and
>>>>>             demonstrably contribute to ICANN's mission as defined
>>>>>             in Article 1 of its new bylaws. We reject any
>>>>>             definition of Whois purpose that is based on the way
>>>>>             people happen to make use of data that can be accessed
>>>>>             indiscriminately in a public directory. The fact that
>>>>>             certain people currently use Whois for any purpose
>>>>>             does not mean that the purpose of Whois is to provide
>>>>>             thick data about the domain and its registrant to
>>>>>             anyone who wants it for any reason.
>>>>>
>>>>>             2. Whois service, like the DNS itself, should be
>>>>>             globally uniform and not vary by jurisdiction. ICANN
>>>>>             was created to provide globalized governance of the
>>>>>             DNS so that it would continue to be globally
>>>>>             compatible and coordinated. Any solution that involves
>>>>>             fragmenting the policies and practices of Whois along
>>>>>             jurisdictional lines is not desirable.
>>>>>
>>>>>             3. No tiered access solution that involves
>>>>>             establishing new criteria for access can feasibly be
>>>>>             created in the next 3 months. We would strongly resist
>>>>>             throwing the community into a hopeless rush to come up
>>>>>             with entirely new policies, standards and practices
>>>>>             involving tiered access to data, and we do not want
>>>>>             ICANN staff to invent a policy that is not subject to
>>>>>             community review and approval.
>>>>>
>>>>>             Based on these three principles, we believe that Model
>>>>>             3 is the only viable option available. Model 3
>>>>>             minimizes the data publicly displayed to that which is
>>>>>             required for maintaining the stability, security and
>>>>>             resiliency of the DNS. Model 3 could be applied across
>>>>>             the board, and would be presumptively legal regardless
>>>>>             of which jurisdiction the registrar, registry or
>>>>>             registrant are in. And Model 3 relies on established
>>>>>             legal due process for gaining access to additional
>>>>>             information.
>>>>>
>>>>>             There is room for discussion about how much data could
>>>>>             be publicly displayed under Model 3 consistent with
>>>>>             ICANN's mission. E.g., it may be within ICANN's
>>>>>             mission to include additional data in the public
>>>>>             record, such as an email address for the technical
>>>>>             contact and even possibly the name of the registrant.
>>>>>
>>>>>             The process of gaining access to additional data in
>>>>>             Model 1 is completely unacceptable. Self-certification
>>>>>             by any third party requestor is, we believe, not
>>>>>             compliant with GDPR nor does is such access justified
>>>>>             by the purpose of Whois or ICANN's mission.
>>>>>
>>>>>             Model 2 might possibly be acceptable if an suitable
>>>>>             set of criteria and processes were devised, but it
>>>>>             simply is not feasible for such a certification
>>>>>             program to be developed in 3 months. A certification
>>>>>             program thrown together in a rush poses huge risks for
>>>>>             loopholes, poor procedures, and a legal challenge to
>>>>>             ICANN, either from DPAs or from individuals affected.
>>>>>
>>>>>             Dr. Milton L. Mueller
>>>>>
>>>>>             Professor, School of Public Policy
>>>>>
>>>>>             Georgia Institute of Technology
>>>>>
>>>>>
>>>>
>>>>         _______________________________________________
>>>>         NCSG-PC mailing list
>>>>         NCSG-PC at lists.ncsg.is <mailto:NCSG-PC at lists.ncsg.is>
>>>>         https://lists.ncsg.is/mailman/listinfo/ncsg-pc
>>>>         <https://lists.ncsg.is/mailman/listinfo/ncsg-pc>
>>>         _______________________________________________ NCSG-PC
>>>         mailing list NCSG-PC at lists.ncsg.is
>>>         <mailto:NCSG-PC at lists.ncsg.is>
>>>         https://lists.ncsg.is/mailman/listinfo/ncsg-pc
>>>         <https://lists.ncsg.is/mailman/listinfo/ncsg-pc> 
>>>
>>>     -- 
>>>     Farzaneh
>>
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