[NCSG-PC] Fw: Re: [Epdp-dt] EPDP Scope

Tue Jul 17 01:37:36 EEST 2018

The latest email from Keith; no, he won't entertain any changes to the scope that we send his way. Even though the requested changes were sent only a few hours after he sent through the supposed 'final' version to the entire drafting team. It's hard to comment by last Friday when we didn't know what changes were being sent his way off-list by others.

Ayden

‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐
On 17 July 2018 12:13 AM, Drazek, Keith via Epdp-dt <epdp-dt at icann.org> wrote:

> Hi all,
>
> The current version of the scope document (attached) is the result of several weeks of work and substantial compromise, and, as discussed on our Wednesday Drafting Team call, the deadline for substantive comment was Friday.
>
> I worked over the weekend to incorporate the comments I received, doing my very best to find the right balance.
>
> I believe the scope section is as close as we will get without putting our Thursday vote at serious and certain risk. We are likely all equally unhappy with various parts of it, but sometimes that’s the nature of our work.
>
> I am finished with the scope document and it is now with Council leadership and staff for adding to the master Charter document.
>
> Thanks for your understanding.
>
> Regards,
>
> Keith
>
> From: Epdp-dt <epdp-dt-bounces at icann.org> On Behalf Of Susan Kawaguchi
> Sent: Monday, July 16, 2018 5:54 PM
> To: Stephanie Perrin <stephanie.perrin at mail.utoronto.ca>
> Cc: epdp-dt at icann.org
> Subject: [EXTERNAL] Re: [Epdp-dt] EPDP Scope
>
> We are being fair and the BC has been objecting to the access piece being left off the scope of the ePDP from the start.  We have been behind your proverbial 8-ball for years but it is not the time to unfairly focus on a piece of this issue and refuse to recognize the need for access.   A second temp spec may be in order.
>
> On Mon, Jul 16, 2018 at 2:44 PM, Stephanie Perrin <stephanie.perrin at mail.utoronto.ca> wrote:
>
>> Lets be fair...we have been objecting to this parallel process from the get-go.  As I said on the panel in Panama, there is a price to be paid for not recognizing the reality of data protection law, and refusing to move in time.  We are now behind the proverbial 8-ball.  That does not mean we can pull off a miracle here.
>>
>> Stephanie
>>
>> On 2018-07-16 17:25, McGrady, Paul D. wrote:
>>
>>> Thanks Ayden.
>>>
>>> Keith & Council Leadrship  - The revised Section J has been in for days and days now, including on our last call and including during the call for comments which ended Friday.  A last minute attempt to get it out endangers the entire Charter.  I hope that we can stick with the work of the Small Team which the DT had plenty of time to review and comment upon and not let this process get derailed at the last minute.
>>>
>>> Best to all,
>>>
>>> Paul
>>>
>>> Paul D. McGrady
>>>
>>> Partner
>>>
>>> Winston & Strawn LLP
>>> 35 W. Wacker Drive
>>> Chicago, IL 60601-9703
>>>
>>> D: +1 312-558-5963
>>>
>>> F: +1 312-558-5700
>>>
>>> [Bio](http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html) | [VCard](http://www.winston.com/vcards/996.vcf) | [Email](mailto:pmcgrady at winston.com) | [winston.com](http://www.winston.com)
>>>
>>> [Winston & Strawn LLP]
>>>
>>> From: Ayden Férdeline [mailto:icann at ferdeline.com]
>>> Sent: Monday, July 16, 2018 4:21 PM
>>> To: Drazek, Keith [<kdrazek at verisign.com>](mailto:kdrazek at verisign.com)
>>> Cc: McGrady, Paul D. [<PMcGrady at winston.com>](mailto:PMcGrady at winston.com); pam.little at alibaba-inc.com; Epdp-dt at icann.org; marika.konings at icann.org
>>> Subject: Re: [Epdp-dt] EPDP Scope
>>>
>>> Thanks for your work here, Keith.
>>>
>>> I do not support the inclusion of Section J) in the EPDP's scope for two reasons.
>>>
>>> Firstly, this is because I do not believe it is possible to respond to the questions in Section J) until the questions in Part 3 have been answered.
>>>
>>> Part 3 asks important and relevant questions about data processing responsibilities. For example, k1) asks: "For which data processing activities undertaken by registrars and registries as required by the Temporary Specification does ICANN determine the purpose and means of processing?" How is it possible to come up with an ICANN 'access' policy, which we will be doing if we discuss it in J), before asking how ICANN determines the purpose and means of processing? How are we going to provide access under an ICANN policy to data that is not actually collected because of ICANN’s narrow mission and purpose?
>>>
>>> Secondly, we are aware that ICANN org is seeking "clarity" on issues related to access, and is engaging behind the scenes with Data Protection Authorities to receive their advice on how to proceed. This is a parallel process which ICANN org is not going to stop just because our EPDP is tackling the same questions; the Board told us much already on 24 June [1]. I think it is a more effective use of our time to not address this question until ICANN org has received and shared with us the DPA's advice, as their recommendations, as the enforcement bodies, are what will be followed anyway.
>>>
>>> Best wishes,
>>>
>>> Ayden Férdeline
>>>
>>> [1] "As the EPDP makes progress on its policy recommendations it may more quickly find alignment with the larger community on the elements of the unified access model. If that is the case, we will work with the GNSO to align this work, as appropriate. If specific advice is received from the relevant DPAs, or the community is not aligned, then it may be more appropriate to address this matter together going forward." https://gnso.icann.org/sites/default/files/file/field-file-attach/chalaby-to-council-24jun18-en.pdf
>>>
>>> ICANN is saying: we want legal clarity on issues relevant to access, and if the DPA's clarifications go against the EPDP recommendations, we will follow the DPA's advice and impose it on you. In other words, ICANN org has created a parallel process which it is working on, we can do whatever we want in our EPDP, and then we can exchange notes and if we're not all aligned, ICANN org makes the decision.
>>>
>>> ‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐
>>>
>>> On 16 July 2018 5:57 PM, Drazek, Keith via Epdp-dt <epdp-dt at icann.org> wrote:
>>>
>>>> Hi Pam and Paul,
>>>>
>>>> Attached is an updated version incorporating Pam’s edits and responding to her questions. I incorporated Paul’s suggested language below for Section J.
>>>>
>>>> Regards,
>>>>
>>>> Keith
>>>>
>>>> From: McGrady, Paul D. <PMcGrady at winston.com>
>>>>
>>>> Sent: Monday, July 16, 2018 7:37 AM
>>>>
>>>> To: Pam Little <pam.little at alibaba-inc.com>; Epdp-dt at icann.org; marika.konings at icann.org; Drazek, Keith <kdrazek at verisign.com>
>>>>
>>>> Subject: [EXTERNAL] RE: [Epdp-dt] EPDP Scope
>>>>
>>>> Hi Pam,
>>>>
>>>> Thank you for your proposed edits.  However, I do think that they eliminate an important concept that we were trying to get at and would prefer the question revert to its previous formulation.
>>>>
>>>> If the DT decides to eliminate the concept of reconciliation/avoiding an unharmonized approach, I still think your proposed changes need some work.
>>>>
>>>> If we change to “Can the obligation to provide “reasonable access” be clarified or defined…” I think that leads us down the wrong path.  J1 already focuses on clarifying and defining reasonable access.  I think we could ask “Can the obligation to provide “reasonable access” be further clarified and/or better defined through the implementation of a community-wide model…”  We lose the idea of harmonization, which was the purpose of the question in the first place, but ultimately those working on the answer will hopefully take into account issues that would tend to bring a discordant result and try to avoid those outcomes.
>>>>
>>>> So, Keith, we would prefer that the question revert.  If we can’t get that, we would be OK with:
>>>>
>>>> “Can the obligation to provide “reasonable access” be further clarified and/or better defined through the implementation of a community-wide model for access or similar framework which takes into account at least the following elements:”
>>>>
>>>> Best to all,
>>>>
>>>> Paul
>>>>
>>>> From: Epdp-dt [mailto:epdp-dt-bounces at icann.org] On Behalf Of Pam Little
>>>>
>>>> Sent: Monday, July 16, 2018 1:50 AM
>>>>
>>>> To: Epdp-dt at icann.org; marika.konings at icann.org; Drazek, Keith <kdrazek at verisign.com>
>>>>
>>>> Subject: Re: [Epdp-dt] EPDP Scope
>>>>
>>>> Hi Keith
>>>>
>>>> Many thanks to you and the small drafting team for the "final" draft.
>>>>
>>>> Because of time zone differences, I have not had an opportunity to discuss this with my RrSG councillors or RrSG members but, in the interest fo time, I have made some suggested edits and queries to the final draft. Most of them are intended to correct minor errors or add more clarity and consistency so I hope they are not controversial, except perhaps my proposed change to J2 below:
>>>>
>>>> "J2) Can the obligation to provide “reasonable access” be clarified or defined reconciled with the objective of avoiding, to the extent possible, an unharmonized approach to third-party access to registration data, , without the implementation of a community-wide model for access or similar framework which takes into account at least the following elements:"
>>>>
>>>> It seems to me neither the langauge in the previous draft (re fragmentation of WHOIS) nor the final draft was helpful hence my proposed change to try to make it more neutral.
>>>>
>>>> I also have a question regarding the last paragraph in the final draft:
>>>>
>>>> "The EPDP Team shall respect the timelines and deliverables as outlined in Annex A and A-1 of the ICANN Bylaws and the EPDP Manual. As per the GNSO EPDP Working Group Guidelines, the EPDP Team shall develop a work plan that outlines the necessary steps and expected timing in order to achieve the milestones of the EPDP as set out in Annex A and A-1 of the ICANN Bylaws and the EPDP Manual and submit this to the GNSO Council. Any significant updates to the work plan are expected to be communicated in a timely manner to the GNSO Council with an explanation as to why the work plan needed adjustment."
>>>>
>>>> The final draft Charter has set timelines for Deliverable 2. Is the EPDP Team expected to develop a work plan for all three deliverables?
>>>>
>>>> Kind regards,
>>>>
>>>> Pam
>>>>
>>>>> ------------------------------------------------------------------
>>>>>
>>>>> Sender:Drazek, Keith via Epdp-dt <epdp-dt at icann.org>
>>>>>
>>>>> Sent at:2018 Jul 16 (Mon) 13:08
>>>>>
>>>>> To:Epdp-dt at icann.org <Epdp-dt at icann.org>; marika.konings at icann.org <marika.konings at icann.org>
>>>>>
>>>>> Subject:[Epdp-dt] EPDP Scope
>>>>>
>>>>> Hello again everyone….
>>>>>
>>>>> Now attached is the final draft of the EPDP WG Charter scope section for your review and our vote on the 19th.
>>>>>
>>>>> I have attached the redline version (against the version circulate to the DT last Wednesday) and the clean version.
>>>>>
>>>>> Thanks for your patience and for the constructive input of all parties.
>>>>>
>>>>> Regards,
>>>>>
>>>>> Keith
>>>>>
>>>>> From: Drazek, Keith
>>>>>
>>>>> Sent: Sunday, July 15, 2018 10:28 AM
>>>>>
>>>>> To: Drazek, Keith <kdrazek at verisign.com>
>>>>>
>>>>> Cc: Epdp-dt at icann.org; marika.konings at icann.org
>>>>>
>>>>> Subject: Re: [EXTERNAL] [Epdp-dt] EPDP Scope
>>>>>
>>>>> Hi all. Please wait before reviewing. I may have jumped the gun and we may have more suggested edits incoming from NCSG.
>>>>>
>>>>> Thanks,
>>>>>
>>>>> Keith
>>>>>
>>>>> On Jul 15, 2018, at 8:44 AM, Drazek, Keith via Epdp-dt <epdp-dt at icann.org> wrote:
>>>>>
>>>>> Hi all,
>>>>>
>>>>> As discussed on Wednesday’s EPDP Drafting Team call, attached is the final draft of the EPDP charter scope section.
>>>>>
>>>>> I received a few suggested edits from Stephanie and Darcy and did my best to incorporate/address them. The small group has reviewed and agreed this is ready for approval at the 19 July Council meeting.
>>>>>
>>>>> Thanks to everyone for your contributions to this effort.
>>>>>
>>>>> Regards,
>>>>>
>>>>> Keith
>>>>>
>>>>> <Updated Scope Section 15 July 2018 -- Consolidated Edits.docx>
>>>>>
>>>>> <Updated Scope Section 15 July 2018 -- Consolidated Edits CLEAN.docx>
>>>>>
>>>>> _______________________________________________
>>>>>
>>>>> Epdp-dt mailing list
>>>>>
>>>>> Epdp-dt at icann.org
>>>>>
>>>>> [https://mm.icann.org/mailman/listinfo/epdp-dt](https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.org%2Fmailman%2Flistinfo%2Fepdp-dt&data=02%7C01%7Cpmcgrady%40winston.com%7C21dc7986efdb472f2d1608d5eae86f9d%7C12a8aae45e2f4ad8adab9375a84aa3e5%7C0%7C0%7C636673207197019797&sdata=42E7jzrAu6xBuZTUb5%2BNLhVHYI20lrWnf%2Fgrl3WOpgg%3D&reserved=0)
>>>>
>>>> ---------------------------------------------------------------
>>>>
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>>>
>>> _______________________________________________
>>>
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>>>
>>> Epdp-dt at icann.org
>>>
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>>
>> _______________________________________________
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