In follow up to my email below and today's Council discussion, please find my proposed edits to section 2 attached. Thanks, Darcy On Fri, Aug 16, 2019 at 10:13 AM Darcy Southwell < darcy.southwell@endurance.com> wrote:

Thanks, all, for preparing this. I’m struggling a bit with section 2. I agree we’ve characterized Council’s position accurately in section 2. But the rest seems confusing. Did we already provide the Board with the written explanation of what was discussed in Marrakech? If not, we should consider explaining that it’s provided now and then be more specific in our ask to the Board.

Thanks,

Darcy

*From: *council <council-bounces@gnso.icann.org> on behalf of Michele Neylon - Blacknight <michele@blacknight.com> *Date: *Friday, August 16, 2019 at 8:35 AM *To: *Keith Drazek <kdrazek@verisign.com>, "council@gnso.icann.org" < council@gnso.icann.org> *Cc: *"gnso-secs@icann.org" <gnso-secs@icann.org> *Subject: *Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations

Keith and Co

Thanks for your work on this. I think it captures pretty accurately where we are at

Regards

Michele

--

Mr Michele Neylon

Blacknight Solutions

Hosting, Colocation & Domains

https://www.blacknight.com/

https://blacknight.blog/

Intl. +353 (0) 59 9183072

Direct Dial: +353 (0)59 9183090

Personal blog: https://michele.blog/

Some thoughts: https://ceo.hosting/

-------------------------------

Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty

Road,Graiguecullen,Carlow,R93 X265,Ireland Company No.: 370845

*From: *council <council-bounces@gnso.icann.org> on behalf of "Drazek, Keith via council" <council@gnso.icann.org> *Reply to: *Keith Drazek <kdrazek@verisign.com> *Date: *Thursday 15 August 2019 at 17:59 *To: *"council@gnso.icann.org" <council@gnso.icann.org> *Cc: *"gnso-secs@icann.org" <gnso-secs@icann.org> *Subject: *Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations

Hi all,

In preparation for our 22 August GNSO Council meeting, and further Council discussion on this topic, I am attaching an updated draft letter for your review.

We have attempted to incorporate everyone’s comments and expressed views in this draft.

To summarize, the goal of this letter is to:

1. Ensure the Council is proceeding as expected under Annex A-1 Section 6 of the ICANN Bylaws. 2. Create a record of the Council-Board engagement in Marrakech. 3. Advise the Board of the Council’s current thinking around Recommendation #1, Purpose 2 and Recommendation #12. 4. Seek further input from the Board, and ideally confirm a common understanding or more clearly understand any difference of opinion. 5. Ensure that the Council is setting good precedent in terms of how we engage in this kind of situation.

In response to comments from Marie and Flip, we have added language that acknowledges a difference of opinion among Councilors on the subject of Rec #12 and the deletion of data.

Please review and provide any comments to the list. We will also discuss next week. Let me know if I missed anything.

Thanks to all and I appreciate your patience on this one.

Best,

Keith

*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *Rubens Kuhl *Sent:* Tuesday, July 30, 2019 2:08 PM *To:* Flip Petillion <fpetillion@petillion.law> *Cc:* gnso-secs@icann.org; council@gnso.icann.org *Subject:* [EXTERNAL] Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations

Em 30 de jul de 2019, à(s) 10:14:000, Flip Petillion < fpetillion@petillion.law> escreveu:

Rubens,

I share the feeling that it is uncommon to have a substantive discussion within the Council. However, that is exactly what the Bylaws mandate us to do within the atypical framework of expedited PDPs. Doesn’t the proposed one pager attached to the draft letter also address substance?

I don't think the bylaws mandate who specifically does that. It's a substantive discussion, but in the same way we ask WGs to take them, we can ask the RegData EPDP WG to answer the substance. If we engage ourselves in a discussion where we first delegated authority to a WG, we would be disenfranchising them.

BTW, Expedited PDPs only differ from Standard PDPs by not having an Issue Report to frame discussions. So everything we does here is a precedent for any future PDP, being an EPDP or not.

As to your second comment, I think we owe it to the community to provide the Board with recommendations and reasoning that is legally sound. If certain aspects of privacy have been previously overlooked, now seems the time to correct them.

IPC can send Board, PDP or anyone else any communication they see fit at any time. But the discussion here is not that, it's only the Board rationale for not approving the PDP recommendation.

Rubens

Best regards,

Flip

Flip Petillion

fpetillion@petillion.law

+32484652653

www.petillion.law

<image001.png> <http://www.petillion.law/>

Attorneys – Advocaten - Avocats

*From: *Rubens Kuhl <rubensk@nic.br> *Date: *Tuesday, 30 July 2019 at 13:22 *To: *Flip Petillion <fpetillion@petillion.law> *Cc: *Ayden Férdeline <icann@ferdeline.com>, "council@gnso.icann.org" < council@gnso.icann.org> *Subject: *Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations

Flip,

I find strange we are having a substantive discussion on the topic within the Council. I believe our approach to board denials of PDP recommendation should be to ask the PDP WG what clarifications or positions they have, and relay them to the board. IPC is represented in the PDP so the same content you posted here could be used there while formulating the response, whatever that response would look like.

And still on process grounds, it's clear that the board rationale for not approving part of Rec. 12 is different from the IPC rationale you relayed to the Council. But the rationale that needs to be answered to is the Board one, because they've made the decision to not fully approve rec. 12. So while it's interesting to know the overall IPC position on the matter, the topic at hand is the Board decision.

Rubens

On 30 Jul 2019, at 06:54, Flip Petillion <fpetillion@petillion.law> wrote:

Hi Ayden,

Thank you for your questions and for the opportunity to clarify our position. I understand your questions address the substance of the recommendations and not the GNSO Council’s remit within the Board Approval Process.

1. Regarding your first question:

You are correct that the ‘Organisation’ field pertains to information of legal entities and thus should not be subject to GDPR principles (and thus should not be deleted or even redacted). However, this is not treated as such in the Final Report. To avoid that we enter into circular discussions, we started from the premise in the Final Report (and the draft rationale for rec. #12) that the GDPR could apply to the ‘Organisation’ field. Our point is that, in such a case, the practices of both disclosing AND deleting data are subject to GDPR according to article 4 (2). ,The deletion of previously provided data can likewise not occur without a solid purpose, legal basis and safeguards.

1. Regarding your second question:

(i) You are correct that the GDPR requires consent to be informed, affirmative and freely given. However, active opt-in consent is only required when relying on consent as a legal basis (art. 6.1.a). The Final Report and the guidance of the EU Authorities and DPAs have established that, depending on the purpose, the performance of the registration contract (art. 6.1.b) and legitimate interest (art. 6.1.f) are the valid legal bases. For the latter, an opt-out mechanism or redaction mechanism can be sufficient to shift the balance in favour of the interested party (cfr. Article 29 WP Guidance on Legitimate Interest) and active opt-in consent is not required.

(ii) If you were to rely on consent as a legal basis, normally (and ideally) consent is obtained at the time of collection of the personal data (i.e. the registration of the domain name). It is at this point in time that the data subject (registrant) is properly informed of the processing activities and is engaged in providing the necessary information related to the purpose and legal bases (i.e., performance of the registration agreement). Practice has shown that there are a lot of problems with obtaining consent after the fact (i.e., during the performance of the registration agreement). Quite often data subjects cannot be contacted, are confused about the nature of the opt-in communication, are simply not interested, etc. Accordingly, the requirement of an active opt-in consent on the basis of a ‘review request’ to existing registrants unnecessarily risks losing valid organisation information on a wide scale.

I hope this sufficiently answers your questions and clarifies the position of the IPC on this matter.

Best regards,

Flip

Flip Petillion

fpetillion@petillion.law

+32484652653

www.petillion.law

<image001.png> <http://www.petillion.law/>

Attorneys – Advocaten - Avocats

*From: *Ayden Férdeline <icann@ferdeline.com> *Reply to: *Ayden Férdeline <icann@ferdeline.com> *Date: *Tuesday, 30 July 2019 at 00:41 *To: *Flip Petillion <fpetillion@petillion.law> *Cc: *Maxim Alzoba <m.alzoba@gmail.com>, Darcy Southwell < darcy.southwell@endurance.com>, "gnso-secs@icann.org" <gnso-secs@icann.org>, "council@gnso.icann.org" <council@gnso.icann.org> *Subject: *Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations

Hi Flip,

Thanks for sharing this input from the IPC.

Sorry if this is a stupid question, but since data that does not pertain to natural persons is beyond the scope of the GDPR, I do not understand how you can make the claim that article 4 (2) of the GDPR does not allow for the organisation field to be deleted. Could you please clarify? Thanks.

I am also concerned that what you describe below - "Practice has shown that data subjects are generally reluctant to take active steps after their data has been collected to provide active opt-in consent (cfr. opt-in emails)" - sounds like a proposal for not obtaining consent that is valid under the GDPR, which I understand requires consent to be freely given.

Kind regards,

Ayden

‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐

On Monday, 29 July 2019 18:29, Flip Petillion <fpetillion@petillion.law> wrote:

Dear Keith,

Dear All,

The IPC *shares the Board’s concern* that the option to *delete* the Organisation fields contents as a result of a refusal or failure to respond by the registrant upon a ‘review request’ by the registrar, *risks resulting in a* *wide scale loss* of crucial information about the registrant's identity.

While the IPC acknowledges that Recommendation #12 achieved consensus support in the EPDP Team’s Phase 1 Final Report, we agree with the Board that the “or delete the field contents” part of recommendation #12 2) b) is not in the best interests of the ICANN community or ICANN.

We therefore do not agree that the recommendation should be resubmitted as is, and also not together with the presented rationale in the draft letter to the Board.

Irrespective of the debate as to whether the organisation field may contain personal data or not, the issues considered in the current rationale and the concerns of the Board can both be met by redacting the organisation data in case of an opt-out (or lack of active opt-in) instead of deleting.

· The concept of ‘privacy by default/design’ in the GDPR does not automatically necessitate the implementation of an opt-in mechanism (especially considering the legitimate interests attached to the transparency of organisation information online);

· The deletion/erasure by a controller of previously provided personal data is also considered ‘processing’ (article 4 (2) GDPR), for which the controller must determine a purpose and proper legal basis. As a result, a registrar cannot simply delete important information provided by the registrant unless (i) the registrant has requested the erasure of the ‘Organisation’ field by exercising his right to erasure (this right must be actively exercised and cannot be inferred), (ii) the retention of the ‘Organisation’ field is no longer necessary for the purposes of processing the domain name registration data (Recommendation #15 implies that the retention period of the data elements would at the minimum be the ‘life of the registration’), or (iii) the registrar can justify the deletion on the basis of another valid legal basis (such as the consent of the registrant).

Practice has shown that data subjects are generally reluctant to take active steps after their data has been collected to provide active opt-in consent (cfr. opt-in emails). Together with the expected difficulties in contacting the registrants and verifying their (lack of) consent on a wide scale, the IPC believes (in accordance with the Board Statement) that this would pose a serious and unnecessary risk to lose important registrant information.

Procedurally, we fail to see the use of the checks and balances incorporated in the ‘Board Approval Process’ of Annex A-1 Section 6 of the Bylaws if it would be outside the GNSO Council’s remit to allow a modification to the Consensus Policy recommendation delivered by the EPDP Team. Section 6 of Annex A-1 of the Bylaws specifically provides:

*“At the conclusion of the Council and Board discussions, the Council shall meet to affirm or modify its recommendation, and communicate that conclusion (the "Supplemental Recommendation") to the Board, including an explanation for the then-current recommendation.”*

The IPC therefore believes it is in the GNSO Council’s remit to consult with the Board and modify a Consensus Policy Recommendation if such modification alleviates concerns raised in the Board Statement and is in the best interest of the ICANN community and ICANN.

In accordance with the concern raised in the Board Statement, the IPC therefore believes that the “or delete the field contents” part (deletion option) of Recommendation #12 2) b) should be deleted.

Best regards,

Flip

Flip Petillion

fpetillion@petillion.law

+32484652653

www.petillion.law

<image002.png> <http://www.petillion.law/>

Attorneys – Advocaten - Avocats

*From: *Flip Petillion <fpetillion@petillion.law> *Date: *Monday, 29 July 2019 at 21:41 *To: *Maxim Alzoba <m.alzoba@gmail.com>, Darcy Southwell < darcy.southwell@endurance.com> *Cc: *"gnso-secs@icann.org" <gnso-secs@icann.org>, "council@gnso.icann.org" <council@gnso.icann.org> *Subject: *Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations

Dear Keith,

Dear All,

Due to the vacation period, we will be able to send in the IPC comments later today or tomorrow morning my time.

Sorry for the inconvenience.

Best regards,

Flip

Flip Petillion

fpetillion@petillion.law

+32484652653

www.petillion.law

<image003.png> <http://www.petillion.law/>

Attorneys – Advocaten - Avocats

*From: *council <council-bounces@gnso.icann.org> on behalf of Maxim Alzoba <m.alzoba@gmail.com> *Date: *Thursday, 25 July 2019 at 18:53 *To: *Darcy Southwell <darcy.southwell@endurance.com> *Cc: *"gnso-secs@icann.org" <gnso-secs@icann.org>, "council@gnso.icann.org" <council@gnso.icann.org> *Subject: *Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations

We support the current draft of the letter and comments of Darcy.

Also I'd like to underline , that the modification of the recommendations is for GNSO Council, not for the Board

,and that doing micro management of PDPs is not in the GNSO Council's role.

Maxim Alzoba

On Wed, Jul 24, 2019, 22:44 Darcy Southwell <darcy.southwell@endurance.com> wrote:

Thanks you, Keith.

The Registrar Stakeholder Group (RrSG) agrees that it's outside the Council's remit to modify, or even suggest modification of, a consensus recommendation from a PDP working group and therefore objects to modifying Recommendation 12 to remove the deletion option. The Council should seek to formalize the rationale provided to the Board in Marrakech and resubmit the consensus recommendation to the Board for approval. Therefore, RrSG supports the Council's letter to the Board as written regarding Recommendation 12.

Regarding Recommendation 1, Purpose 2, the EPDP Team and Board have been quite clear that further legal analysis is necessary to ensure Purpose 2 is drafted consistent with applicable laws. In its Final Report, the EPDP Team recommended Purpose 2 be further evaluated during phase 2 of the EPDP. In its resolution, the Board clearly instructed ICANN Org to engage the DPAs to accomplish the necessary legal analysis to perform the work. That legal analysis must be completed before the EPDP Team can even begin to consider how to revise Purpose 2. Further, it is not typical for the Council to instruct a PDP as to when it works on such specific tasks. It is up to the PDP Working Group, with its leadership and coordinating with ICANN staff, to prioritize its work. So far, the EPDP Team has prioritized the work related to the System for Standardized Access to Non-Public Registration Data, consistent with its Charter, and with the concerns of many of the GNSO Councilors. At this point, the RrSG sees no reason for the Council to intervene to reprioritize the Purpose 2 work ahead of the chartered work.

Best,

Darcy

On Fri, Jul 19, 2019 at 12:30 AM Drazek, Keith via council < council@gnso.icann.org> wrote:

Hi Marie,

Thanks for your initial feedback here, and for the discussion during yesterday’s Council call.

On your second point below, related to the Board’s treatment of Recommendation 12, I believe it is outside the Council’s remit to suggest, or even allow, a modification to the Consensus Policy recommendation delivered to us by the EPDP Team, and subsequently delivered by Council to the Board. In my view, it is the role of Council to now hold the Board accountable for its decision to not accept Rec 12 in full, and to call for the Board to accept it following the clarification they requested.

I welcome further discussion on these items following discussion with our respective SGs and Cs, but that’s my current view.

Best,

Keith

*From:* Marie Pattullo <marie.pattullo@aim.be>

*Sent:* Thursday, July 18, 2019 10:53 PM

*To:* Drazek, Keith <kdrazek@verisign.com>

*Cc:* gnso-secs@icann.org; council@gnso.icann.org

*Subject:* [EXTERNAL] RE: Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations

Hi Keith,

Thanks for sharing the draft. I’m afraid I haven’t been able to discuss this much with our members yet (sorry) but on an initial reading, the BC does have some concerns.

On your first point, on rec 1, while the first sentence is great, we have problems with the second. As you know from the comments we attached to Janis’ letter, we really need to give the EPDP Team a clear instruction to reword this and replace the placeholder language; I understand that it’s not on the Team’s roadmap right now. We really think that at a minimum, Council needs to tell the Team to do that and get it back ASAP for Board action. We all agree that the EPDP should deal with this, so we really do need a purpose 2 (for 3rd party access) for the Board to adopt.

As for your 2nd para, on rec 12, we don’t agree that it should just be resubmitted as is. As you know, the BC really does think that as far as the ORG field goes, Rec 12 should be amended to remove the deletion option. There could always be an option of to allow the contracted parties to update any inaccuracies in the ORG field, as appropriate, if they need that.

Looking forward to the discussion!

Thanks

Marie

*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *Drazek, Keith via council

*Sent:* Wednesday, July 17, 2019 11:49 AM

*To:* council@gnso.icann.org

*Cc:* gnso-secs@icann.org

*Subject:* [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations

Hi all,

In preparation for our Council meeting this week, please review the attached draft letter to the ICANN Board concerning next steps on the two EPDP Phase 1 recommendations not accepted in full by the Board.

As you will recall, we had a good conversation with the ICANN Board during our working session lunch, and we committed to following up on the issue. The draft letter is self-explanatory, and our goal is to ensure a common understanding between Council and Board before we take our formal action to request Board reconsideration on Recommendation 12. We want to avoid an ongoing back-and-forth on the issue, so our hope is this letter will pave the way to a clear resolution.

Please review before our Council meeting.

Thanks to Rafik and Pam for leading this work while I was on PTO.

Best,

Keith

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By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.

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_______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.

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_______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.

Dear all, during the call, it was agreed that in the bullet point two we could add which constituencies/SGs supported which position - maybe as a footnote? I don't have any language suggested because I wanted to ask Terri or Nathalie for help to get the "headcount" in the footnote right so I won't make any mistakes. Would this be possible? If there are any alternative suggestions to the footnote, I can propose the text, of course. Warm regards, Tanya On Wed, 28 Aug 2019 at 19:06, Marie Pattullo <marie.pattullo@aim.be> wrote:

Hi all,

Following from Darcy’s mail below, please find the suggested amendments from the BC in the attached.

Best to all,

Marie

*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *Darcy Southwell *Sent:* Thursday, August 22, 2019 4:08 PM *To:* Michele Neylon - Blacknight <michele@blacknight.com>; Drazek, Keith <kdrazek@verisign.com>; council@gnso.icann.org *Cc:* gnso-secs@icann.org *Subject:* Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations

In follow up to my email below and today's Council discussion, please find my proposed edits to section 2 attached.

Thanks,

Darcy

On Fri, Aug 16, 2019 at 10:13 AM Darcy Southwell < darcy.southwell@endurance.com> wrote:

Thanks, all, for preparing this. I’m struggling a bit with section 2. I agree we’ve characterized Council’s position accurately in section 2. But the rest seems confusing. Did we already provide the Board with the written explanation of what was discussed in Marrakech? If not, we should consider explaining that it’s provided now and then be more specific in our ask to the Board.

Thanks,

Darcy

*From: *council <council-bounces@gnso.icann.org> on behalf of Michele Neylon - Blacknight <michele@blacknight.com> *Date: *Friday, August 16, 2019 at 8:35 AM *To: *Keith Drazek <kdrazek@verisign.com>, "council@gnso.icann.org" < council@gnso.icann.org> *Cc: *"gnso-secs@icann.org" <gnso-secs@icann.org> *Subject: *Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations

Keith and Co

Thanks for your work on this. I think it captures pretty accurately where we are at

Regards

Michele

--

Mr Michele Neylon

Blacknight Solutions

Hosting, Colocation & Domains

https://www.blacknight.com/

https://blacknight.blog/

Intl. +353 (0) 59 9183072

Direct Dial: +353 (0)59 9183090

Personal blog: https://michele.blog/

Some thoughts: https://ceo.hosting/

-------------------------------

Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty

Road,Graiguecullen,Carlow,R93 X265,Ireland Company No.: 370845

*From: *council <council-bounces@gnso.icann.org> on behalf of "Drazek, Keith via council" <council@gnso.icann.org> *Reply to: *Keith Drazek <kdrazek@verisign.com> *Date: *Thursday 15 August 2019 at 17:59 *To: *"council@gnso.icann.org" <council@gnso.icann.org> *Cc: *"gnso-secs@icann.org" <gnso-secs@icann.org> *Subject: *Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations

Hi all,

In preparation for our 22 August GNSO Council meeting, and further Council discussion on this topic, I am attaching an updated draft letter for your review.

We have attempted to incorporate everyone’s comments and expressed views in this draft.

To summarize, the goal of this letter is to:

1. Ensure the Council is proceeding as expected under Annex A-1 Section 6 of the ICANN Bylaws. 2. Create a record of the Council-Board engagement in Marrakech. 3. Advise the Board of the Council’s current thinking around Recommendation #1, Purpose 2 and Recommendation #12. 4. Seek further input from the Board, and ideally confirm a common understanding or more clearly understand any difference of opinion. 5. Ensure that the Council is setting good precedent in terms of how we engage in this kind of situation.

In response to comments from Marie and Flip, we have added language that acknowledges a difference of opinion among Councilors on the subject of Rec #12 and the deletion of data.

Please review and provide any comments to the list. We will also discuss next week. Let me know if I missed anything.

Thanks to all and I appreciate your patience on this one.

Best,

Keith

*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *Rubens Kuhl *Sent:* Tuesday, July 30, 2019 2:08 PM *To:* Flip Petillion <fpetillion@petillion.law> *Cc:* gnso-secs@icann.org; council@gnso.icann.org *Subject:* [EXTERNAL] Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations

Em 30 de jul de 2019, à(s) 10:14:000, Flip Petillion < fpetillion@petillion.law> escreveu:

Rubens,

I share the feeling that it is uncommon to have a substantive discussion within the Council. However, that is exactly what the Bylaws mandate us to do within the atypical framework of expedited PDPs. Doesn’t the proposed one pager attached to the draft letter also address substance?

I don't think the bylaws mandate who specifically does that. It's a substantive discussion, but in the same way we ask WGs to take them, we can ask the RegData EPDP WG to answer the substance. If we engage ourselves in a discussion where we first delegated authority to a WG, we would be disenfranchising them.

BTW, Expedited PDPs only differ from Standard PDPs by not having an Issue Report to frame discussions. So everything we does here is a precedent for any future PDP, being an EPDP or not.

As to your second comment, I think we owe it to the community to provide the Board with recommendations and reasoning that is legally sound. If certain aspects of privacy have been previously overlooked, now seems the time to correct them.

IPC can send Board, PDP or anyone else any communication they see fit at any time. But the discussion here is not that, it's only the Board rationale for not approving the PDP recommendation.

Rubens

Best regards,

Flip

Flip Petillion

fpetillion@petillion.law

+32484652653

www.petillion.law

<image001.png> <http://www.petillion.law/>

Attorneys – Advocaten - Avocats

*From: *Rubens Kuhl <rubensk@nic.br> *Date: *Tuesday, 30 July 2019 at 13:22 *To: *Flip Petillion <fpetillion@petillion.law> *Cc: *Ayden Férdeline <icann@ferdeline.com>, "council@gnso.icann.org" < council@gnso.icann.org> *Subject: *Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations

Flip,

I find strange we are having a substantive discussion on the topic within the Council. I believe our approach to board denials of PDP recommendation should be to ask the PDP WG what clarifications or positions they have, and relay them to the board. IPC is represented in the PDP so the same content you posted here could be used there while formulating the response, whatever that response would look like.

And still on process grounds, it's clear that the board rationale for not approving part of Rec. 12 is different from the IPC rationale you relayed to the Council. But the rationale that needs to be answered to is the Board one, because they've made the decision to not fully approve rec. 12. So while it's interesting to know the overall IPC position on the matter, the topic at hand is the Board decision.

Rubens

On 30 Jul 2019, at 06:54, Flip Petillion <fpetillion@petillion.law> wrote:

Hi Ayden,

Thank you for your questions and for the opportunity to clarify our position. I understand your questions address the substance of the recommendations and not the GNSO Council’s remit within the Board Approval Process.

1. Regarding your first question:

You are correct that the ‘Organisation’ field pertains to information of legal entities and thus should not be subject to GDPR principles (and thus should not be deleted or even redacted). However, this is not treated as such in the Final Report. To avoid that we enter into circular discussions, we started from the premise in the Final Report (and the draft rationale for rec. #12) that the GDPR could apply to the ‘Organisation’ field. Our point is that, in such a case, the practices of both disclosing AND deleting data are subject to GDPR according to article 4 (2). ,The deletion of previously provided data can likewise not occur without a solid purpose, legal basis and safeguards.

1. Regarding your second question:

(i) You are correct that the GDPR requires consent to be informed, affirmative and freely given. However, active opt-in consent is only required when relying on consent as a legal basis (art. 6.1.a). The Final Report and the guidance of the EU Authorities and DPAs have established that, depending on the purpose, the performance of the registration contract (art. 6.1.b) and legitimate interest (art. 6.1.f) are the valid legal bases. For the latter, an opt-out mechanism or redaction mechanism can be sufficient to shift the balance in favour of the interested party (cfr. Article 29 WP Guidance on Legitimate Interest) and active opt-in consent is not required.

(ii) If you were to rely on consent as a legal basis, normally (and ideally) consent is obtained at the time of collection of the personal data (i.e. the registration of the domain name). It is at this point in time that the data subject (registrant) is properly informed of the processing activities and is engaged in providing the necessary information related to the purpose and legal bases (i.e., performance of the registration agreement). Practice has shown that there are a lot of problems with obtaining consent after the fact (i.e., during the performance of the registration agreement). Quite often data subjects cannot be contacted, are confused about the nature of the opt-in communication, are simply not interested, etc. Accordingly, the requirement of an active opt-in consent on the basis of a ‘review request’ to existing registrants unnecessarily risks losing valid organisation information on a wide scale.

I hope this sufficiently answers your questions and clarifies the position of the IPC on this matter.

Best regards,

Flip

Flip Petillion

fpetillion@petillion.law

+32484652653

www.petillion.law

<image001.png> <http://www.petillion.law/>

Attorneys – Advocaten - Avocats

*From: *Ayden Férdeline <icann@ferdeline.com> *Reply to: *Ayden Férdeline <icann@ferdeline.com> *Date: *Tuesday, 30 July 2019 at 00:41 *To: *Flip Petillion <fpetillion@petillion.law> *Cc: *Maxim Alzoba <m.alzoba@gmail.com>, Darcy Southwell < darcy.southwell@endurance.com>, "gnso-secs@icann.org" <gnso-secs@icann.org>, "council@gnso.icann.org" <council@gnso.icann.org> *Subject: *Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations

Hi Flip,

Thanks for sharing this input from the IPC.

Sorry if this is a stupid question, but since data that does not pertain to natural persons is beyond the scope of the GDPR, I do not understand how you can make the claim that article 4 (2) of the GDPR does not allow for the organisation field to be deleted. Could you please clarify? Thanks.

I am also concerned that what you describe below - "Practice has shown that data subjects are generally reluctant to take active steps after their data has been collected to provide active opt-in consent (cfr. opt-in emails)" - sounds like a proposal for not obtaining consent that is valid under the GDPR, which I understand requires consent to be freely given.

Kind regards,

Ayden

‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐

On Monday, 29 July 2019 18:29, Flip Petillion <fpetillion@petillion.law> wrote:

Dear Keith,

Dear All,

The IPC *shares the Board’s concern* that the option to *delete* the Organisation fields contents as a result of a refusal or failure to respond by the registrant upon a ‘review request’ by the registrar, *risks resulting in a* *wide scale loss* of crucial information about the registrant's identity.

While the IPC acknowledges that Recommendation #12 achieved consensus support in the EPDP Team’s Phase 1 Final Report, we agree with the Board that the “or delete the field contents” part of recommendation #12 2) b) is not in the best interests of the ICANN community or ICANN.

We therefore do not agree that the recommendation should be resubmitted as is, and also not together with the presented rationale in the draft letter to the Board.

Irrespective of the debate as to whether the organisation field may contain personal data or not, the issues considered in the current rationale and the concerns of the Board can both be met by redacting the organisation data in case of an opt-out (or lack of active opt-in) instead of deleting.

· The concept of ‘privacy by default/design’ in the GDPR does not automatically necessitate the implementation of an opt-in mechanism (especially considering the legitimate interests attached to the transparency of organisation information online);

· The deletion/erasure by a controller of previously provided personal data is also considered ‘processing’ (article 4 (2) GDPR), for which the controller must determine a purpose and proper legal basis. As a result, a registrar cannot simply delete important information provided by the registrant unless (i) the registrant has requested the erasure of the ‘Organisation’ field by exercising his right to erasure (this right must be actively exercised and cannot be inferred), (ii) the retention of the ‘Organisation’ field is no longer necessary for the purposes of processing the domain name registration data (Recommendation #15 implies that the retention period of the data elements would at the minimum be the ‘life of the registration’), or (iii) the registrar can justify the deletion on the basis of another valid legal basis (such as the consent of the registrant).

Practice has shown that data subjects are generally reluctant to take active steps after their data has been collected to provide active opt-in consent (cfr. opt-in emails). Together with the expected difficulties in contacting the registrants and verifying their (lack of) consent on a wide scale, the IPC believes (in accordance with the Board Statement) that this would pose a serious and unnecessary risk to lose important registrant information.

Procedurally, we fail to see the use of the checks and balances incorporated in the ‘Board Approval Process’ of Annex A-1 Section 6 of the Bylaws if it would be outside the GNSO Council’s remit to allow a modification to the Consensus Policy recommendation delivered by the EPDP Team. Section 6 of Annex A-1 of the Bylaws specifically provides:

*“At the conclusion of the Council and Board discussions, the Council shall meet to affirm or modify its recommendation, and communicate that conclusion (the "Supplemental Recommendation") to the Board, including an explanation for the then-current recommendation.”*

The IPC therefore believes it is in the GNSO Council’s remit to consult with the Board and modify a Consensus Policy Recommendation if such modification alleviates concerns raised in the Board Statement and is in the best interest of the ICANN community and ICANN.

In accordance with the concern raised in the Board Statement, the IPC therefore believes that the “or delete the field contents” part (deletion option) of Recommendation #12 2) b) should be deleted.

Best regards,

Flip

Flip Petillion

fpetillion@petillion.law

+32484652653

www.petillion.law

<image002.png> <http://www.petillion.law/>

Attorneys – Advocaten - Avocats

*From: *Flip Petillion <fpetillion@petillion.law> *Date: *Monday, 29 July 2019 at 21:41 *To: *Maxim Alzoba <m.alzoba@gmail.com>, Darcy Southwell < darcy.southwell@endurance.com> *Cc: *"gnso-secs@icann.org" <gnso-secs@icann.org>, "council@gnso.icann.org" <council@gnso.icann.org> *Subject: *Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations

Dear Keith,

Dear All,

Due to the vacation period, we will be able to send in the IPC comments later today or tomorrow morning my time.

Sorry for the inconvenience.

Best regards,

Flip

Flip Petillion

fpetillion@petillion.law

+32484652653

www.petillion.law

<image003.png> <http://www.petillion.law/>

Attorneys – Advocaten - Avocats

*From: *council <council-bounces@gnso.icann.org> on behalf of Maxim Alzoba <m.alzoba@gmail.com> *Date: *Thursday, 25 July 2019 at 18:53 *To: *Darcy Southwell <darcy.southwell@endurance.com> *Cc: *"gnso-secs@icann.org" <gnso-secs@icann.org>, "council@gnso.icann.org" <council@gnso.icann.org> *Subject: *Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations

We support the current draft of the letter and comments of Darcy.

Also I'd like to underline , that the modification of the recommendations is for GNSO Council, not for the Board

,and that doing micro management of PDPs is not in the GNSO Council's role.

Maxim Alzoba

On Wed, Jul 24, 2019, 22:44 Darcy Southwell <darcy.southwell@endurance.com> wrote:

Thanks you, Keith.

The Registrar Stakeholder Group (RrSG) agrees that it's outside the Council's remit to modify, or even suggest modification of, a consensus recommendation from a PDP working group and therefore objects to modifying Recommendation 12 to remove the deletion option. The Council should seek to formalize the rationale provided to the Board in Marrakech and resubmit the consensus recommendation to the Board for approval. Therefore, RrSG supports the Council's letter to the Board as written regarding Recommendation 12.

Regarding Recommendation 1, Purpose 2, the EPDP Team and Board have been quite clear that further legal analysis is necessary to ensure Purpose 2 is drafted consistent with applicable laws. In its Final Report, the EPDP Team recommended Purpose 2 be further evaluated during phase 2 of the EPDP. In its resolution, the Board clearly instructed ICANN Org to engage the DPAs to accomplish the necessary legal analysis to perform the work. That legal analysis must be completed before the EPDP Team can even begin to consider how to revise Purpose 2. Further, it is not typical for the Council to instruct a PDP as to when it works on such specific tasks. It is up to the PDP Working Group, with its leadership and coordinating with ICANN staff, to prioritize its work. So far, the EPDP Team has prioritized the work related to the System for Standardized Access to Non-Public Registration Data, consistent with its Charter, and with the concerns of many of the GNSO Councilors. At this point, the RrSG sees no reason for the Council to intervene to reprioritize the Purpose 2 work ahead of the chartered work.

Best,

Darcy

On Fri, Jul 19, 2019 at 12:30 AM Drazek, Keith via council < council@gnso.icann.org> wrote:

Hi Marie,

Thanks for your initial feedback here, and for the discussion during yesterday’s Council call.

On your second point below, related to the Board’s treatment of Recommendation 12, I believe it is outside the Council’s remit to suggest, or even allow, a modification to the Consensus Policy recommendation delivered to us by the EPDP Team, and subsequently delivered by Council to the Board. In my view, it is the role of Council to now hold the Board accountable for its decision to not accept Rec 12 in full, and to call for the Board to accept it following the clarification they requested.

I welcome further discussion on these items following discussion with our respective SGs and Cs, but that’s my current view.

Best,

Keith

*From:* Marie Pattullo <marie.pattullo@aim.be>

*Sent:* Thursday, July 18, 2019 10:53 PM

*To:* Drazek, Keith <kdrazek@verisign.com>

*Cc:* gnso-secs@icann.org; council@gnso.icann.org

*Subject:* [EXTERNAL] RE: Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations

Hi Keith,

Thanks for sharing the draft. I’m afraid I haven’t been able to discuss this much with our members yet (sorry) but on an initial reading, the BC does have some concerns.

On your first point, on rec 1, while the first sentence is great, we have problems with the second. As you know from the comments we attached to Janis’ letter, we really need to give the EPDP Team a clear instruction to reword this and replace the placeholder language; I understand that it’s not on the Team’s roadmap right now. We really think that at a minimum, Council needs to tell the Team to do that and get it back ASAP for Board action. We all agree that the EPDP should deal with this, so we really do need a purpose 2 (for 3rd party access) for the Board to adopt.

As for your 2nd para, on rec 12, we don’t agree that it should just be resubmitted as is. As you know, the BC really does think that as far as the ORG field goes, Rec 12 should be amended to remove the deletion option. There could always be an option of to allow the contracted parties to update any inaccuracies in the ORG field, as appropriate, if they need that.

Looking forward to the discussion!

Thanks

Marie

*From:* council <council-bounces@gnso.icann.org> *On Behalf Of *Drazek, Keith via council

*Sent:* Wednesday, July 17, 2019 11:49 AM

*To:* council@gnso.icann.org

*Cc:* gnso-secs@icann.org

*Subject:* [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations

Hi all,

In preparation for our Council meeting this week, please review the attached draft letter to the ICANN Board concerning next steps on the two EPDP Phase 1 recommendations not accepted in full by the Board.

As you will recall, we had a good conversation with the ICANN Board during our working session lunch, and we committed to following up on the issue. The draft letter is self-explanatory, and our goal is to ensure a common understanding between Council and Board before we take our formal action to request Board reconsideration on Recommendation 12. We want to avoid an ongoing back-and-forth on the issue, so our hope is this letter will pave the way to a clear resolution.

Please review before our Council meeting.

Thanks to Rafik and Pam for leading this work while I was on PTO.

Best,

Keith

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Hi all, Final reminder on this letter. We will send at 2000 UTC. Thanks, Keith From: council <council-bounces@gnso.icann.org> On Behalf Of Drazek, Keith via council Sent: Wednesday, August 28, 2019 1:48 PM To: council@gnso.icann.org Cc: gnso-secs@icann.org Subject: [EXTERNAL] Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Hi all, Thanks to Darcy, Marie and Tatiana for their continued input on this letter. I have incorporated most of the suggested edits and added the SG/C information we discussed on 22 August and mentioned below. Attached are clean and redlined versions for your review. Please look these over and send me any final comments by this Friday at 2000 UTC. We need to wrap this up and get it sent. Thanks, Keith From: Tatiana Tropina <tatiana.tropina@gmail.com<mailto:tatiana.tropina@gmail.com>> Sent: Wednesday, August 28, 2019 1:16 PM To: Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>> Cc: Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>>; Michele Neylon - Blacknight <michele@blacknight.com<mailto:michele@blacknight.com>>; Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>; council@gnso.icann.org<mailto:council@gnso.icann.org>; gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: [EXTERNAL] Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Dear all, during the call, it was agreed that in the bullet point two we could add which constituencies/SGs supported which position - maybe as a footnote? I don't have any language suggested because I wanted to ask Terri or Nathalie for help to get the "headcount" in the footnote right so I won't make any mistakes. Would this be possible? If there are any alternative suggestions to the footnote, I can propose the text, of course. Warm regards, Tanya On Wed, 28 Aug 2019 at 19:06, Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>> wrote: Hi all, Following from Darcy’s mail below, please find the suggested amendments from the BC in the attached. Best to all, Marie From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of Darcy Southwell Sent: Thursday, August 22, 2019 4:08 PM To: Michele Neylon - Blacknight <michele@blacknight.com<mailto:michele@blacknight.com>>; Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>; council@gnso.icann.org<mailto:council@gnso.icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations In follow up to my email below and today's Council discussion, please find my proposed edits to section 2 attached. Thanks, Darcy On Fri, Aug 16, 2019 at 10:13 AM Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>> wrote: Thanks, all, for preparing this. I’m struggling a bit with section 2. I agree we’ve characterized Council’s position accurately in section 2. But the rest seems confusing. Did we already provide the Board with the written explanation of what was discussed in Marrakech? If not, we should consider explaining that it’s provided now and then be more specific in our ask to the Board. Thanks, Darcy From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> on behalf of Michele Neylon - Blacknight <michele@blacknight.com<mailto:michele@blacknight.com>> Date: Friday, August 16, 2019 at 8:35 AM To: Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Cc: "gnso-secs@icann.org<mailto:gnso-secs@icann.org>" <gnso-secs@icann.org<mailto:gnso-secs@icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Keith and Co Thanks for your work on this. I think it captures pretty accurately where we are at Regards Michele -- Mr Michele Neylon Blacknight Solutions Hosting, Colocation & Domains https://www.blacknight.com/ https://blacknight.blog/ Intl. +353 (0) 59 9183072 Direct Dial: +353 (0)59 9183090 Personal blog: https://michele.blog/ Some thoughts: https://ceo.hosting/ ------------------------------- Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty Road,Graiguecullen,Carlow,R93 X265,Ireland Company No.: 370845 From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> on behalf of "Drazek, Keith via council" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Reply to: Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: Thursday 15 August 2019 at 17:59 To: "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Cc: "gnso-secs@icann.org<mailto:gnso-secs@icann.org>" <gnso-secs@icann.org<mailto:gnso-secs@icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Hi all, In preparation for our 22 August GNSO Council meeting, and further Council discussion on this topic, I am attaching an updated draft letter for your review. We have attempted to incorporate everyone’s comments and expressed views in this draft. To summarize, the goal of this letter is to: 1. Ensure the Council is proceeding as expected under Annex A-1 Section 6 of the ICANN Bylaws. 2. Create a record of the Council-Board engagement in Marrakech. 3. Advise the Board of the Council’s current thinking around Recommendation #1, Purpose 2 and Recommendation #12. 4. Seek further input from the Board, and ideally confirm a common understanding or more clearly understand any difference of opinion. 5. Ensure that the Council is setting good precedent in terms of how we engage in this kind of situation. In response to comments from Marie and Flip, we have added language that acknowledges a difference of opinion among Councilors on the subject of Rec #12 and the deletion of data. Please review and provide any comments to the list. We will also discuss next week. Let me know if I missed anything. Thanks to all and I appreciate your patience on this one. Best, Keith From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of Rubens Kuhl Sent: Tuesday, July 30, 2019 2:08 PM To: Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org>; council@gnso.icann.org<mailto:council@gnso.icann.org> Subject: [EXTERNAL] Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Em 30 de jul de 2019, à(s) 10:14:000, Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> escreveu: Rubens, I share the feeling that it is uncommon to have a substantive discussion within the Council. However, that is exactly what the Bylaws mandate us to do within the atypical framework of expedited PDPs. Doesn’t the proposed one pager attached to the draft letter also address substance? I don't think the bylaws mandate who specifically does that. It's a substantive discussion, but in the same way we ask WGs to take them, we can ask the RegData EPDP WG to answer the substance. If we engage ourselves in a discussion where we first delegated authority to a WG, we would be disenfranchising them. BTW, Expedited PDPs only differ from Standard PDPs by not having an Issue Report to frame discussions. So everything we does here is a precedent for any future PDP, being an EPDP or not. As to your second comment, I think we owe it to the community to provide the Board with recommendations and reasoning that is legally sound. If certain aspects of privacy have been previously overlooked, now seems the time to correct them. IPC can send Board, PDP or anyone else any communication they see fit at any time. But the discussion here is not that, it's only the Board rationale for not approving the PDP recommendation. Rubens Best regards, Flip Flip Petillion fpetillion@petillion.law<mailto:fpetillion@petillion.law> +32484652653 www.petillion.law<http://www.petillion.law/> <image001.png><http://www.petillion.law/> Attorneys – Advocaten - Avocats From: Rubens Kuhl <rubensk@nic.br<mailto:rubensk@nic.br>> Date: Tuesday, 30 July 2019 at 13:22 To: Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> Cc: Ayden Férdeline <icann@ferdeline.com<mailto:icann@ferdeline.com>>, "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Flip, I find strange we are having a substantive discussion on the topic within the Council. I believe our approach to board denials of PDP recommendation should be to ask the PDP WG what clarifications or positions they have, and relay them to the board. IPC is represented in the PDP so the same content you posted here could be used there while formulating the response, whatever that response would look like. And still on process grounds, it's clear that the board rationale for not approving part of Rec. 12 is different from the IPC rationale you relayed to the Council. But the rationale that needs to be answered to is the Board one, because they've made the decision to not fully approve rec. 12. So while it's interesting to know the overall IPC position on the matter, the topic at hand is the Board decision. Rubens On 30 Jul 2019, at 06:54, Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> wrote: Hi Ayden, Thank you for your questions and for the opportunity to clarify our position. I understand your questions address the substance of the recommendations and not the GNSO Council’s remit within the Board Approval Process. 1. Regarding your first question: You are correct that the ‘Organisation’ field pertains to information of legal entities and thus should not be subject to GDPR principles (and thus should not be deleted or even redacted). However, this is not treated as such in the Final Report. To avoid that we enter into circular discussions, we started from the premise in the Final Report (and the draft rationale for rec. #12) that the GDPR could apply to the ‘Organisation’ field. Our point is that, in such a case, the practices of both disclosing AND deleting data are subject to GDPR according to article 4 (2). ,The deletion of previously provided data can likewise not occur without a solid purpose, legal basis and safeguards. 2. Regarding your second question: (i) You are correct that the GDPR requires consent to be informed, affirmative and freely given. However, active opt-in consent is only required when relying on consent as a legal basis (art. 6.1.a). The Final Report and the guidance of the EU Authorities and DPAs have established that, depending on the purpose, the performance of the registration contract (art. 6.1.b) and legitimate interest (art. 6.1.f) are the valid legal bases. For the latter, an opt-out mechanism or redaction mechanism can be sufficient to shift the balance in favour of the interested party (cfr. Article 29 WP Guidance on Legitimate Interest) and active opt-in consent is not required. (ii) If you were to rely on consent as a legal basis, normally (and ideally) consent is obtained at the time of collection of the personal data (i.e. the registration of the domain name). It is at this point in time that the data subject (registrant) is properly informed of the processing activities and is engaged in providing the necessary information related to the purpose and legal bases (i.e., performance of the registration agreement). Practice has shown that there are a lot of problems with obtaining consent after the fact (i.e., during the performance of the registration agreement). Quite often data subjects cannot be contacted, are confused about the nature of the opt-in communication, are simply not interested, etc. Accordingly, the requirement of an active opt-in consent on the basis of a ‘review request’ to existing registrants unnecessarily risks losing valid organisation information on a wide scale. I hope this sufficiently answers your questions and clarifies the position of the IPC on this matter. Best regards, Flip Flip Petillion fpetillion@petillion.law<mailto:fpetillion@petillion.law> +32484652653 www.petillion.law<http://www.petillion.law/> <image001.png><http://www.petillion.law/> Attorneys – Advocaten - Avocats From: Ayden Férdeline <icann@ferdeline.com<mailto:icann@ferdeline.com>> Reply to: Ayden Férdeline <icann@ferdeline.com<mailto:icann@ferdeline.com>> Date: Tuesday, 30 July 2019 at 00:41 To: Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> Cc: Maxim Alzoba <m.alzoba@gmail.com<mailto:m.alzoba@gmail.com>>, Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>>, "gnso-secs@icann.org<mailto:gnso-secs@icann.org>" <gnso-secs@icann.org<mailto:gnso-secs@icann.org>>, "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Hi Flip, Thanks for sharing this input from the IPC. Sorry if this is a stupid question, but since data that does not pertain to natural persons is beyond the scope of the GDPR, I do not understand how you can make the claim that article 4 (2) of the GDPR does not allow for the organisation field to be deleted. Could you please clarify? Thanks. I am also concerned that what you describe below - "Practice has shown that data subjects are generally reluctant to take active steps after their data has been collected to provide active opt-in consent (cfr. opt-in emails)" - sounds like a proposal for not obtaining consent that is valid under the GDPR, which I understand requires consent to be freely given. Kind regards, Ayden ‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐ On Monday, 29 July 2019 18:29, Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> wrote: Dear Keith, Dear All, The IPC shares the Board’s concern that the option to delete the Organisation fields contents as a result of a refusal or failure to respond by the registrant upon a ‘review request’ by the registrar, risks resulting in a wide scale loss of crucial information about the registrant's identity. While the IPC acknowledges that Recommendation #12 achieved consensus support in the EPDP Team’s Phase 1 Final Report, we agree with the Board that the “or delete the field contents” part of recommendation #12 2) b) is not in the best interests of the ICANN community or ICANN. We therefore do not agree that the recommendation should be resubmitted as is, and also not together with the presented rationale in the draft letter to the Board. Irrespective of the debate as to whether the organisation field may contain personal data or not, the issues considered in the current rationale and the concerns of the Board can both be met by redacting the organisation data in case of an opt-out (or lack of active opt-in) instead of deleting. · The concept of ‘privacy by default/design’ in the GDPR does not automatically necessitate the implementation of an opt-in mechanism (especially considering the legitimate interests attached to the transparency of organisation information online); · The deletion/erasure by a controller of previously provided personal data is also considered ‘processing’ (article 4 (2) GDPR), for which the controller must determine a purpose and proper legal basis. As a result, a registrar cannot simply delete important information provided by the registrant unless (i) the registrant has requested the erasure of the ‘Organisation’ field by exercising his right to erasure (this right must be actively exercised and cannot be inferred), (ii) the retention of the ‘Organisation’ field is no longer necessary for the purposes of processing the domain name registration data (Recommendation #15 implies that the retention period of the data elements would at the minimum be the ‘life of the registration’), or (iii) the registrar can justify the deletion on the basis of another valid legal basis (such as the consent of the registrant). Practice has shown that data subjects are generally reluctant to take active steps after their data has been collected to provide active opt-in consent (cfr. opt-in emails). Together with the expected difficulties in contacting the registrants and verifying their (lack of) consent on a wide scale, the IPC believes (in accordance with the Board Statement) that this would pose a serious and unnecessary risk to lose important registrant information. Procedurally, we fail to see the use of the checks and balances incorporated in the ‘Board Approval Process’ of Annex A-1 Section 6 of the Bylaws if it would be outside the GNSO Council’s remit to allow a modification to the Consensus Policy recommendation delivered by the EPDP Team. Section 6 of Annex A-1 of the Bylaws specifically provides: “At the conclusion of the Council and Board discussions, the Council shall meet to affirm or modify its recommendation, and communicate that conclusion (the "Supplemental Recommendation") to the Board, including an explanation for the then-current recommendation.” The IPC therefore believes it is in the GNSO Council’s remit to consult with the Board and modify a Consensus Policy Recommendation if such modification alleviates concerns raised in the Board Statement and is in the best interest of the ICANN community and ICANN. In accordance with the concern raised in the Board Statement, the IPC therefore believes that the “or delete the field contents” part (deletion option) of Recommendation #12 2) b) should be deleted. Best regards, Flip Flip Petillion fpetillion@petillion.law<mailto:fpetillion@petillion.law> +32484652653 www.petillion.law<http://www.petillion.law/> <image002.png><http://www.petillion.law/> Attorneys – Advocaten - Avocats From: Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> Date: Monday, 29 July 2019 at 21:41 To: Maxim Alzoba <m.alzoba@gmail.com<mailto:m.alzoba@gmail.com>>, Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>> Cc: "gnso-secs@icann.org<mailto:gnso-secs@icann.org>" <gnso-secs@icann.org<mailto:gnso-secs@icann.org>>, "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Dear Keith, Dear All, Due to the vacation period, we will be able to send in the IPC comments later today or tomorrow morning my time. Sorry for the inconvenience. Best regards, Flip Flip Petillion fpetillion@petillion.law<mailto:fpetillion@petillion.law> +32484652653 www.petillion.law<http://www.petillion.law/> <image003.png><http://www.petillion.law/> Attorneys – Advocaten - Avocats From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> on behalf of Maxim Alzoba <m.alzoba@gmail.com<mailto:m.alzoba@gmail.com>> Date: Thursday, 25 July 2019 at 18:53 To: Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>> Cc: "gnso-secs@icann.org<mailto:gnso-secs@icann.org>" <gnso-secs@icann.org<mailto:gnso-secs@icann.org>>, "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations We support the current draft of the letter and comments of Darcy. Also I'd like to underline , that the modification of the recommendations is for GNSO Council, not for the Board ,and that doing micro management of PDPs is not in the GNSO Council's role. Maxim Alzoba On Wed, Jul 24, 2019, 22:44 Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>> wrote: Thanks you, Keith. The Registrar Stakeholder Group (RrSG) agrees that it's outside the Council's remit to modify, or even suggest modification of, a consensus recommendation from a PDP working group and therefore objects to modifying Recommendation 12 to remove the deletion option. The Council should seek to formalize the rationale provided to the Board in Marrakech and resubmit the consensus recommendation to the Board for approval. Therefore, RrSG supports the Council's letter to the Board as written regarding Recommendation 12. Regarding Recommendation 1, Purpose 2, the EPDP Team and Board have been quite clear that further legal analysis is necessary to ensure Purpose 2 is drafted consistent with applicable laws. In its Final Report, the EPDP Team recommended Purpose 2 be further evaluated during phase 2 of the EPDP. In its resolution, the Board clearly instructed ICANN Org to engage the DPAs to accomplish the necessary legal analysis to perform the work. That legal analysis must be completed before the EPDP Team can even begin to consider how to revise Purpose 2. Further, it is not typical for the Council to instruct a PDP as to when it works on such specific tasks. It is up to the PDP Working Group, with its leadership and coordinating with ICANN staff, to prioritize its work. So far, the EPDP Team has prioritized the work related to the System for Standardized Access to Non-Public Registration Data, consistent with its Charter, and with the concerns of many of the GNSO Councilors. At this point, the RrSG sees no reason for the Council to intervene to reprioritize the Purpose 2 work ahead of the chartered work. Best, Darcy On Fri, Jul 19, 2019 at 12:30 AM Drazek, Keith via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Hi Marie, Thanks for your initial feedback here, and for the discussion during yesterday’s Council call. On your second point below, related to the Board’s treatment of Recommendation 12, I believe it is outside the Council’s remit to suggest, or even allow, a modification to the Consensus Policy recommendation delivered to us by the EPDP Team, and subsequently delivered by Council to the Board. In my view, it is the role of Council to now hold the Board accountable for its decision to not accept Rec 12 in full, and to call for the Board to accept it following the clarification they requested. I welcome further discussion on these items following discussion with our respective SGs and Cs, but that’s my current view. Best, Keith From: Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>> Sent: Thursday, July 18, 2019 10:53 PM To: Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org>; council@gnso.icann.org<mailto:council@gnso.icann.org> Subject: [EXTERNAL] RE: Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Hi Keith, Thanks for sharing the draft. I’m afraid I haven’t been able to discuss this much with our members yet (sorry) but on an initial reading, the BC does have some concerns. On your first point, on rec 1, while the first sentence is great, we have problems with the second. As you know from the comments we attached to Janis’ letter, we really need to give the EPDP Team a clear instruction to reword this and replace the placeholder language; I understand that it’s not on the Team’s roadmap right now. We really think that at a minimum, Council needs to tell the Team to do that and get it back ASAP for Board action. We all agree that the EPDP should deal with this, so we really do need a purpose 2 (for 3rd party access) for the Board to adopt. As for your 2nd para, on rec 12, we don’t agree that it should just be resubmitted as is. As you know, the BC really does think that as far as the ORG field goes, Rec 12 should be amended to remove the deletion option. There could always be an option of to allow the contracted parties to update any inaccuracies in the ORG field, as appropriate, if they need that. Looking forward to the discussion! Thanks Marie From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of Drazek, Keith via council Sent: Wednesday, July 17, 2019 11:49 AM To: council@gnso.icann.org<mailto:council@gnso.icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Hi all, In preparation for our Council meeting this week, please review the attached draft letter to the ICANN Board concerning next steps on the two EPDP Phase 1 recommendations not accepted in full by the Board. As you will recall, we had a good conversation with the ICANN Board during our working session lunch, and we committed to following up on the issue. The draft letter is self-explanatory, and our goal is to ensure a common understanding between Council and Board before we take our formal action to request Board reconsideration on Recommendation 12. We want to avoid an ongoing back-and-forth on the issue, so our hope is this letter will pave the way to a clear resolution. Please review before our Council meeting. Thanks to Rafik and Pam for leading this work while I was on PTO. Best, Keith _______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.

Hi all, Subject to everyone’s agreement, I have incorporated Elsa’s suggested language on the Board’s use of “Global Public Interest” below into the attached draft letter. The remainder of the draft is unchanged from last week’s review and approval. Please review and let me know if anyone objects to including it. We need to wrap this up this week. Thanks, Keith From: Elsa S <elsa.saade@gmail.com> Sent: Friday, August 30, 2019 12:30 PM To: Drazek, Keith <kdrazek@verisign.com> Cc: council@gnso.icann.org; gnso-secs@icann.org Subject: [EXTERNAL] Re: [council] FW: Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Hi Keith and all, Thank you for the edits. I apologize that I haven't had the chance to incorporate this into the document in a new redlined version, but here is my suggested language about Global Public Interest, I'd be happy to review any amendments: We are aware that one of ICANN's core values is to ascertain the global public interest through the bottom-up, multistakeholder policy development processes (1.2(b)(ii) of ICANN's bylaws). However, as the term Global Public Interest is not in the bylaw language for PDPs such as in Section 9a of Annex A of the GNSO Policy Development Process, whereby: "Any PDP Recommendations approved by a GNSO Supermajority Vote shall be adopted by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the Board determines that such policy is not in the best interests of the ICANN community or ICANN" and given that the board has invoked global public interest (or public interest) a number of times in its resolution as the basis of its decision regarding the EPDP phase 1 policy recommendations, the council is concerned with the use of the terms, particularly "Global Public Interest", in the board's letter to the council on EPDP Phase 1. It is important that when invoking public interest generally, that the Board be specific about the material effect that the recommendation has on public interest. Invoking GAC advice is not on its own sufficient. It is also important that when the term Global Public Interest is used, there should be a rationale as to why it is being used instead of the PDP bylaw language. The council is generally concerned about the process that the Board has used to assess the effect of the recommendations on global public interest and would be happy to have a bigger conversation on the issue going forward. Happy to follow up, Elsa -- On Fri, Aug 30, 2019 at 10:21 AM Drazek, Keith via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Hi all, Final reminder on this letter. We will send at 2000 UTC. Thanks, Keith From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of Drazek, Keith via council Sent: Wednesday, August 28, 2019 1:48 PM To: council@gnso.icann.org<mailto:council@gnso.icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: [EXTERNAL] Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Hi all, Thanks to Darcy, Marie and Tatiana for their continued input on this letter. I have incorporated most of the suggested edits and added the SG/C information we discussed on 22 August and mentioned below. Attached are clean and redlined versions for your review. Please look these over and send me any final comments by this Friday at 2000 UTC. We need to wrap this up and get it sent. Thanks, Keith From: Tatiana Tropina <tatiana.tropina@gmail.com<mailto:tatiana.tropina@gmail.com>> Sent: Wednesday, August 28, 2019 1:16 PM To: Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>> Cc: Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>>; Michele Neylon - Blacknight <michele@blacknight.com<mailto:michele@blacknight.com>>; Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>; council@gnso.icann.org<mailto:council@gnso.icann.org>; gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: [EXTERNAL] Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Dear all, during the call, it was agreed that in the bullet point two we could add which constituencies/SGs supported which position - maybe as a footnote? I don't have any language suggested because I wanted to ask Terri or Nathalie for help to get the "headcount" in the footnote right so I won't make any mistakes. Would this be possible? If there are any alternative suggestions to the footnote, I can propose the text, of course. Warm regards, Tanya On Wed, 28 Aug 2019 at 19:06, Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>> wrote: Hi all, Following from Darcy’s mail below, please find the suggested amendments from the BC in the attached. Best to all, Marie From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of Darcy Southwell Sent: Thursday, August 22, 2019 4:08 PM To: Michele Neylon - Blacknight <michele@blacknight.com<mailto:michele@blacknight.com>>; Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>; council@gnso.icann.org<mailto:council@gnso.icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations In follow up to my email below and today's Council discussion, please find my proposed edits to section 2 attached. Thanks, Darcy On Fri, Aug 16, 2019 at 10:13 AM Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>> wrote: Thanks, all, for preparing this. I’m struggling a bit with section 2. I agree we’ve characterized Council’s position accurately in section 2. But the rest seems confusing. Did we already provide the Board with the written explanation of what was discussed in Marrakech? If not, we should consider explaining that it’s provided now and then be more specific in our ask to the Board. Thanks, Darcy From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> on behalf of Michele Neylon - Blacknight <michele@blacknight.com<mailto:michele@blacknight.com>> Date: Friday, August 16, 2019 at 8:35 AM To: Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Cc: "gnso-secs@icann.org<mailto:gnso-secs@icann.org>" <gnso-secs@icann.org<mailto:gnso-secs@icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Keith and Co Thanks for your work on this. I think it captures pretty accurately where we are at Regards Michele -- Mr Michele Neylon Blacknight Solutions Hosting, Colocation & Domains https://www.blacknight.com/ https://blacknight.blog/ Intl. +353 (0) 59 9183072 Direct Dial: +353 (0)59 9183090 Personal blog: https://michele.blog/ Some thoughts: https://ceo.hosting/ ------------------------------- Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty Road,Graiguecullen,Carlow,R93 X265,Ireland Company No.: 370845 From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> on behalf of "Drazek, Keith via council" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Reply to: Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: Thursday 15 August 2019 at 17:59 To: "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Cc: "gnso-secs@icann.org<mailto:gnso-secs@icann.org>" <gnso-secs@icann.org<mailto:gnso-secs@icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Hi all, In preparation for our 22 August GNSO Council meeting, and further Council discussion on this topic, I am attaching an updated draft letter for your review. We have attempted to incorporate everyone’s comments and expressed views in this draft. To summarize, the goal of this letter is to: 1. Ensure the Council is proceeding as expected under Annex A-1 Section 6 of the ICANN Bylaws. 2. Create a record of the Council-Board engagement in Marrakech. 3. Advise the Board of the Council’s current thinking around Recommendation #1, Purpose 2 and Recommendation #12. 4. Seek further input from the Board, and ideally confirm a common understanding or more clearly understand any difference of opinion. 5. Ensure that the Council is setting good precedent in terms of how we engage in this kind of situation. In response to comments from Marie and Flip, we have added language that acknowledges a difference of opinion among Councilors on the subject of Rec #12 and the deletion of data. Please review and provide any comments to the list. We will also discuss next week. Let me know if I missed anything. Thanks to all and I appreciate your patience on this one. Best, Keith From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of Rubens Kuhl Sent: Tuesday, July 30, 2019 2:08 PM To: Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org>; council@gnso.icann.org<mailto:council@gnso.icann.org> Subject: [EXTERNAL] Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Em 30 de jul de 2019, à(s) 10:14:000, Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> escreveu: Rubens, I share the feeling that it is uncommon to have a substantive discussion within the Council. However, that is exactly what the Bylaws mandate us to do within the atypical framework of expedited PDPs. Doesn’t the proposed one pager attached to the draft letter also address substance? I don't think the bylaws mandate who specifically does that. It's a substantive discussion, but in the same way we ask WGs to take them, we can ask the RegData EPDP WG to answer the substance. If we engage ourselves in a discussion where we first delegated authority to a WG, we would be disenfranchising them. BTW, Expedited PDPs only differ from Standard PDPs by not having an Issue Report to frame discussions. So everything we does here is a precedent for any future PDP, being an EPDP or not. As to your second comment, I think we owe it to the community to provide the Board with recommendations and reasoning that is legally sound. If certain aspects of privacy have been previously overlooked, now seems the time to correct them. IPC can send Board, PDP or anyone else any communication they see fit at any time. But the discussion here is not that, it's only the Board rationale for not approving the PDP recommendation. Rubens Best regards, Flip Flip Petillion fpetillion@petillion.law<mailto:fpetillion@petillion.law> +32484652653 www.petillion.law<http://www.petillion.law/> <image001.png><http://www.petillion.law/> Attorneys – Advocaten - Avocats From: Rubens Kuhl <rubensk@nic.br<mailto:rubensk@nic.br>> Date: Tuesday, 30 July 2019 at 13:22 To: Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> Cc: Ayden Férdeline <icann@ferdeline.com<mailto:icann@ferdeline.com>>, "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Flip, I find strange we are having a substantive discussion on the topic within the Council. I believe our approach to board denials of PDP recommendation should be to ask the PDP WG what clarifications or positions they have, and relay them to the board. IPC is represented in the PDP so the same content you posted here could be used there while formulating the response, whatever that response would look like. And still on process grounds, it's clear that the board rationale for not approving part of Rec. 12 is different from the IPC rationale you relayed to the Council. But the rationale that needs to be answered to is the Board one, because they've made the decision to not fully approve rec. 12. So while it's interesting to know the overall IPC position on the matter, the topic at hand is the Board decision. Rubens On 30 Jul 2019, at 06:54, Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> wrote: Hi Ayden, Thank you for your questions and for the opportunity to clarify our position. I understand your questions address the substance of the recommendations and not the GNSO Council’s remit within the Board Approval Process. 1. Regarding your first question: You are correct that the ‘Organisation’ field pertains to information of legal entities and thus should not be subject to GDPR principles (and thus should not be deleted or even redacted). However, this is not treated as such in the Final Report. To avoid that we enter into circular discussions, we started from the premise in the Final Report (and the draft rationale for rec. #12) that the GDPR could apply to the ‘Organisation’ field. Our point is that, in such a case, the practices of both disclosing AND deleting data are subject to GDPR according to article 4 (2). ,The deletion of previously provided data can likewise not occur without a solid purpose, legal basis and safeguards. 2. Regarding your second question: (i) You are correct that the GDPR requires consent to be informed, affirmative and freely given. However, active opt-in consent is only required when relying on consent as a legal basis (art. 6.1.a). The Final Report and the guidance of the EU Authorities and DPAs have established that, depending on the purpose, the performance of the registration contract (art. 6.1.b) and legitimate interest (art. 6.1.f) are the valid legal bases. For the latter, an opt-out mechanism or redaction mechanism can be sufficient to shift the balance in favour of the interested party (cfr. Article 29 WP Guidance on Legitimate Interest) and active opt-in consent is not required. (ii) If you were to rely on consent as a legal basis, normally (and ideally) consent is obtained at the time of collection of the personal data (i.e. the registration of the domain name). It is at this point in time that the data subject (registrant) is properly informed of the processing activities and is engaged in providing the necessary information related to the purpose and legal bases (i.e., performance of the registration agreement). Practice has shown that there are a lot of problems with obtaining consent after the fact (i.e., during the performance of the registration agreement). Quite often data subjects cannot be contacted, are confused about the nature of the opt-in communication, are simply not interested, etc. Accordingly, the requirement of an active opt-in consent on the basis of a ‘review request’ to existing registrants unnecessarily risks losing valid organisation information on a wide scale. I hope this sufficiently answers your questions and clarifies the position of the IPC on this matter. Best regards, Flip Flip Petillion fpetillion@petillion.law<mailto:fpetillion@petillion.law> +32484652653 www.petillion.law<http://www.petillion.law/> <image001.png><http://www.petillion.law/> Attorneys – Advocaten - Avocats From: Ayden Férdeline <icann@ferdeline.com<mailto:icann@ferdeline.com>> Reply to: Ayden Férdeline <icann@ferdeline.com<mailto:icann@ferdeline.com>> Date: Tuesday, 30 July 2019 at 00:41 To: Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> Cc: Maxim Alzoba <m.alzoba@gmail.com<mailto:m.alzoba@gmail.com>>, Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>>, "gnso-secs@icann.org<mailto:gnso-secs@icann.org>" <gnso-secs@icann.org<mailto:gnso-secs@icann.org>>, "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Hi Flip, Thanks for sharing this input from the IPC. Sorry if this is a stupid question, but since data that does not pertain to natural persons is beyond the scope of the GDPR, I do not understand how you can make the claim that article 4 (2) of the GDPR does not allow for the organisation field to be deleted. Could you please clarify? Thanks. I am also concerned that what you describe below - "Practice has shown that data subjects are generally reluctant to take active steps after their data has been collected to provide active opt-in consent (cfr. opt-in emails)" - sounds like a proposal for not obtaining consent that is valid under the GDPR, which I understand requires consent to be freely given. Kind regards, Ayden ‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐ On Monday, 29 July 2019 18:29, Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> wrote: Dear Keith, Dear All, The IPC shares the Board’s concern that the option to delete the Organisation fields contents as a result of a refusal or failure to respond by the registrant upon a ‘review request’ by the registrar, risks resulting in a wide scale loss of crucial information about the registrant's identity. While the IPC acknowledges that Recommendation #12 achieved consensus support in the EPDP Team’s Phase 1 Final Report, we agree with the Board that the “or delete the field contents” part of recommendation #12 2) b) is not in the best interests of the ICANN community or ICANN. We therefore do not agree that the recommendation should be resubmitted as is, and also not together with the presented rationale in the draft letter to the Board. Irrespective of the debate as to whether the organisation field may contain personal data or not, the issues considered in the current rationale and the concerns of the Board can both be met by redacting the organisation data in case of an opt-out (or lack of active opt-in) instead of deleting. · The concept of ‘privacy by default/design’ in the GDPR does not automatically necessitate the implementation of an opt-in mechanism (especially considering the legitimate interests attached to the transparency of organisation information online); · The deletion/erasure by a controller of previously provided personal data is also considered ‘processing’ (article 4 (2) GDPR), for which the controller must determine a purpose and proper legal basis. As a result, a registrar cannot simply delete important information provided by the registrant unless (i) the registrant has requested the erasure of the ‘Organisation’ field by exercising his right to erasure (this right must be actively exercised and cannot be inferred), (ii) the retention of the ‘Organisation’ field is no longer necessary for the purposes of processing the domain name registration data (Recommendation #15 implies that the retention period of the data elements would at the minimum be the ‘life of the registration’), or (iii) the registrar can justify the deletion on the basis of another valid legal basis (such as the consent of the registrant). Practice has shown that data subjects are generally reluctant to take active steps after their data has been collected to provide active opt-in consent (cfr. opt-in emails). Together with the expected difficulties in contacting the registrants and verifying their (lack of) consent on a wide scale, the IPC believes (in accordance with the Board Statement) that this would pose a serious and unnecessary risk to lose important registrant information. Procedurally, we fail to see the use of the checks and balances incorporated in the ‘Board Approval Process’ of Annex A-1 Section 6 of the Bylaws if it would be outside the GNSO Council’s remit to allow a modification to the Consensus Policy recommendation delivered by the EPDP Team. Section 6 of Annex A-1 of the Bylaws specifically provides: “At the conclusion of the Council and Board discussions, the Council shall meet to affirm or modify its recommendation, and communicate that conclusion (the "Supplemental Recommendation") to the Board, including an explanation for the then-current recommendation.” The IPC therefore believes it is in the GNSO Council’s remit to consult with the Board and modify a Consensus Policy Recommendation if such modification alleviates concerns raised in the Board Statement and is in the best interest of the ICANN community and ICANN. In accordance with the concern raised in the Board Statement, the IPC therefore believes that the “or delete the field contents” part (deletion option) of Recommendation #12 2) b) should be deleted. Best regards, Flip Flip Petillion fpetillion@petillion.law<mailto:fpetillion@petillion.law> +32484652653 www.petillion.law<http://www.petillion.law/> <image002.png><http://www.petillion.law/> Attorneys – Advocaten - Avocats From: Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> Date: Monday, 29 July 2019 at 21:41 To: Maxim Alzoba <m.alzoba@gmail.com<mailto:m.alzoba@gmail.com>>, Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>> Cc: "gnso-secs@icann.org<mailto:gnso-secs@icann.org>" <gnso-secs@icann.org<mailto:gnso-secs@icann.org>>, "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Dear Keith, Dear All, Due to the vacation period, we will be able to send in the IPC comments later today or tomorrow morning my time. Sorry for the inconvenience. Best regards, Flip Flip Petillion fpetillion@petillion.law<mailto:fpetillion@petillion.law> +32484652653 www.petillion.law<http://www.petillion.law/> <image003.png><http://www.petillion.law/> Attorneys – Advocaten - Avocats From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> on behalf of Maxim Alzoba <m.alzoba@gmail.com<mailto:m.alzoba@gmail.com>> Date: Thursday, 25 July 2019 at 18:53 To: Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>> Cc: "gnso-secs@icann.org<mailto:gnso-secs@icann.org>" <gnso-secs@icann.org<mailto:gnso-secs@icann.org>>, "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations We support the current draft of the letter and comments of Darcy. Also I'd like to underline , that the modification of the recommendations is for GNSO Council, not for the Board ,and that doing micro management of PDPs is not in the GNSO Council's role. Maxim Alzoba On Wed, Jul 24, 2019, 22:44 Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>> wrote: Thanks you, Keith. The Registrar Stakeholder Group (RrSG) agrees that it's outside the Council's remit to modify, or even suggest modification of, a consensus recommendation from a PDP working group and therefore objects to modifying Recommendation 12 to remove the deletion option. The Council should seek to formalize the rationale provided to the Board in Marrakech and resubmit the consensus recommendation to the Board for approval. Therefore, RrSG supports the Council's letter to the Board as written regarding Recommendation 12. Regarding Recommendation 1, Purpose 2, the EPDP Team and Board have been quite clear that further legal analysis is necessary to ensure Purpose 2 is drafted consistent with applicable laws. In its Final Report, the EPDP Team recommended Purpose 2 be further evaluated during phase 2 of the EPDP. In its resolution, the Board clearly instructed ICANN Org to engage the DPAs to accomplish the necessary legal analysis to perform the work. That legal analysis must be completed before the EPDP Team can even begin to consider how to revise Purpose 2. Further, it is not typical for the Council to instruct a PDP as to when it works on such specific tasks. It is up to the PDP Working Group, with its leadership and coordinating with ICANN staff, to prioritize its work. So far, the EPDP Team has prioritized the work related to the System for Standardized Access to Non-Public Registration Data, consistent with its Charter, and with the concerns of many of the GNSO Councilors. At this point, the RrSG sees no reason for the Council to intervene to reprioritize the Purpose 2 work ahead of the chartered work. Best, Darcy On Fri, Jul 19, 2019 at 12:30 AM Drazek, Keith via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Hi Marie, Thanks for your initial feedback here, and for the discussion during yesterday’s Council call. On your second point below, related to the Board’s treatment of Recommendation 12, I believe it is outside the Council’s remit to suggest, or even allow, a modification to the Consensus Policy recommendation delivered to us by the EPDP Team, and subsequently delivered by Council to the Board. In my view, it is the role of Council to now hold the Board accountable for its decision to not accept Rec 12 in full, and to call for the Board to accept it following the clarification they requested. I welcome further discussion on these items following discussion with our respective SGs and Cs, but that’s my current view. Best, Keith From: Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>> Sent: Thursday, July 18, 2019 10:53 PM To: Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org>; council@gnso.icann.org<mailto:council@gnso.icann.org> Subject: [EXTERNAL] RE: Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Hi Keith, Thanks for sharing the draft. I’m afraid I haven’t been able to discuss this much with our members yet (sorry) but on an initial reading, the BC does have some concerns. On your first point, on rec 1, while the first sentence is great, we have problems with the second. As you know from the comments we attached to Janis’ letter, we really need to give the EPDP Team a clear instruction to reword this and replace the placeholder language; I understand that it’s not on the Team’s roadmap right now. We really think that at a minimum, Council needs to tell the Team to do that and get it back ASAP for Board action. We all agree that the EPDP should deal with this, so we really do need a purpose 2 (for 3rd party access) for the Board to adopt. As for your 2nd para, on rec 12, we don’t agree that it should just be resubmitted as is. As you know, the BC really does think that as far as the ORG field goes, Rec 12 should be amended to remove the deletion option. There could always be an option of to allow the contracted parties to update any inaccuracies in the ORG field, as appropriate, if they need that. Looking forward to the discussion! Thanks Marie From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of Drazek, Keith via council Sent: Wednesday, July 17, 2019 11:49 AM To: council@gnso.icann.org<mailto:council@gnso.icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Hi all, In preparation for our Council meeting this week, please review the attached draft letter to the ICANN Board concerning next steps on the two EPDP Phase 1 recommendations not accepted in full by the Board. As you will recall, we had a good conversation with the ICANN Board during our working session lunch, and we committed to following up on the issue. The draft letter is self-explanatory, and our goal is to ensure a common understanding between Council and Board before we take our formal action to request Board reconsideration on Recommendation 12. We want to avoid an ongoing back-and-forth on the issue, so our hope is this letter will pave the way to a clear resolution. Please review before our Council meeting. Thanks to Rafik and Pam for leading this work while I was on PTO. Best, Keith _______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. -- -- Elsa Saade Consultant Gulf Centre for Human Rights Twitter: @Elsa_Saade

Thanks Marika! On Sep 5, 2019, at 7:56 PM, Marika Konings <marika.konings@icann.org<mailto:marika.konings@icann.org>> wrote: In light of Elsa’s comments, you may be particularly interested in the following announcement from the Leadership Digest: NEW: Global Public Interest Framework Webinar Executive: Sally Costerton, Senior Adviser to President and Senior Vice President, Global Stakeholder Engagement FOR: All Community Leaders INFORMATION SHARING You are invited to attend a webinar to learn more about one of the ICANN Board’s operational priorities: the public interest. The global public interest is central to many of ICANN’s primary governance documents, and the ICANN Board hopes to play a role in facilitating a bottom-up, community-driven process to develop a framework as a toolkit for the ICANN community to consider the global public interest. These considerations would not change the process by which decisions are made but could instead serve as tools for the community to reinforce the commitment to the public interest and to demonstrate how specific recommendations, advice, and public comments are in the global public interest. This includes the ICANN community guiding the ICANN Board about the public interest determination the latter must make in its decisions. To learn more about the framework, please read the discussion paper [r20.rs6.net]<https://urldefense.proofpoint.com/v2/url?u=http-3A__r20.rs6.net_tn.jsp-3Ff-3D001kzb9OADNNHL9gpb3g69XAQHnC3pvWn1ZdEjwx6P-5FLh4INyH7fNdcMLqNjKW53PG9sEOJmq4wMupmI3jvMwoiFQxhaIOdqUS9UHmUeF2UzMoqLwnqEeASI9qPFMfuwCCPfbp62aDh02HDcJ2bCaU9bEdDAy9cRmm0AjB0mL3gj2BOVlPGAcFDGubBN1cxx3SHJ1RAuFpmKS7k91c33piISkNz3dPxxC08LSP-5FzTdqYp6Fu5GKN0k5Ple34x71IYyOqPzZSF-2D7OTtE-5Flr9Gp1cb-5FsobdckJFMazulsj9TKDbt2zkxDfCvGOVOhEhVNtoJxOBFJd9EEkBMF6MJdMET4C8HeCkAGwJ5p8e9Ub8e5E0FCHhZXNLZsZRzjTMlm-5FJpO3GHzrF-2DDQdkpnoOj5YCVekw3knuDg3wr-26c-3DQ32d53pCN7DAodEKiM9X9QVauW2KT-2DX6yqH5-5Fl62sT2yRPv4iJ97iA-3D-3D-26ch-3Dmt3T77XbBOd1q7BRWytgTl-5FRd5OeSCXQKZgUPoUuyigrTCTyi1hZAQ-3D-3D&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=8_WhWIPqsLT6TmF1Zmyci866vcPSFO4VShFqESGe_5iHWGlBLwwwehFBfjrsjWv9&m=cjElX0m-adnDrCPnbNKPvZI4TYkwSpeWW8YlsKWx4ZU&s=JmBXhzYlzZTjojpJR0G4jcV2CRfRvpWSPmbqvDzwa-s&e=>. The Global Public Interest Framework Webinar has been scheduled for Tuesday, 17 September 2019 at 15:00 UTC. To join the webinar, please visit https://icann.zoom.us/j/288558444 Zoom call details Meeting ID: 288 558 444 Find your local number [r20.rs6.net]<https://urldefense.proofpoint.com/v2/url?u=http-3A__r20.rs6.net_tn.jsp-3Ff-3D001kzb9OADNNHL9gpb3g69XAQHnC3pvWn1ZdEjwx6P-5FLh4INyH7fNdcMLqNjKW53PG9YaIad-2DORLSdZVs4BuAajTvjVnpGn2JMYMUd7qnvjEOCECgxE1apVXJl-2DifJIpUSKHyh-5FS7wZRlmxd95njoiJEQ-3D-3D-26c-3DQ32d53pCN7DAodEKiM9X9QVauW2KT-2DX6yqH5-5Fl62sT2yRPv4iJ97iA-3D-3D-26ch-3Dmt3T77XbBOd1q7BRWytgTl-5FRd5OeSCXQKZgUPoUuyigrTCTyi1hZAQ-3D-3D&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=8_WhWIPqsLT6TmF1Zmyci866vcPSFO4VShFqESGe_5iHWGlBLwwwehFBfjrsjWv9&m=cjElX0m-adnDrCPnbNKPvZI4TYkwSpeWW8YlsKWx4ZU&s=0PN56jNvasdgyc_Ar9eZi18X-YF1FafcDF9kL2lrjLc&e=> Time zone converter [r20.rs6.net]<https://urldefense.proofpoint.com/v2/url?u=http-3A__r20.rs6.net_tn.jsp-3Ff-3D001kzb9OADNNHL9gpb3g69XAQHnC3pvWn1ZdEjwx6P-5FLh4INyH7fNdcMLqNjKW53PG9iehrznCs4oIPV6P0Wuq9eRe3tVnU7qGJxeopkepkZTLP5VXRuf-5FHTpdWQGaHqKwlPw9ATPO5jirqHRWaIsgXFTM3ArslqAtDeMRkpNXS8HGxSbLKPx7Qd7nU-5Ffsh4W-2DAYAtbW6w-5FPdyGaYrndOVrVc8waBs7keL9xHqy0eIJqwzRDDxlNIwxUT8Dka6O0nuXdpM4i4HubaL9fEizjUVh3sl9HGqv-2DlCXGiApihtFL4BrUy-5F6J4mbcmPO1LJJrqlx-26c-3DQ32d53pCN7DAodEKiM9X9QVauW2KT-2DX6yqH5-5Fl62sT2yRPv4iJ97iA-3D-3D-26ch-3Dmt3T77XbBOd1q7BRWytgTl-5FRd5OeSCXQKZgUPoUuyigrTCTyi1hZAQ-3D-3D&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=8_WhWIPqsLT6TmF1Zmyci866vcPSFO4VShFqESGe_5iHWGlBLwwwehFBfjrsjWv9&m=cjElX0m-adnDrCPnbNKPvZI4TYkwSpeWW8YlsKWx4ZU&s=xWp3G4I-ZKlRvoGiknsx39htdkTI-PZ3UatfckXt4bY&e=> Best regards, Marika From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> on behalf of Elsa S <elsa.saade@gmail.com<mailto:elsa.saade@gmail.com>> Date: Friday, August 30, 2019 at 10:30 To: "Drazek, Keith" <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Cc: "gnso-secs@icann.org<mailto:gnso-secs@icann.org>" <gnso-secs@icann.org<mailto:gnso-secs@icann.org>>, "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] FW: Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Hi Keith and all, Thank you for the edits. I apologize that I haven't had the chance to incorporate this into the document in a new redlined version, but here is my suggested language about Global Public Interest, I'd be happy to review any amendments: We are aware that one of ICANN's core values is to ascertain the global public interest through the bottom-up, multistakeholder policy development processes (1.2(b)(ii) of ICANN's bylaws). However, as the term Global Public Interest is not in the bylaw language for PDPs such as in Section 9a of Annex A of the GNSO Policy Development Process, whereby: "Any PDP Recommendations approved by a GNSO Supermajority Vote shall be adopted by the Board unless, by a vote of more than two-thirds (2/3) of the Board, the Board determines that such policy is not in the best interests of the ICANN community or ICANN" and given that the board has invoked global public interest (or public interest) a number of times in its resolution as the basis of its decision regarding the EPDP phase 1 policy recommendations, the council is concerned with the use of the terms, particularly "Global Public Interest", in the board's letter to the council on EPDP Phase 1. It is important that when invoking public interest generally, that the Board be specific about the material effect that the recommendation has on public interest. Invoking GAC advice is not on its own sufficient. It is also important that when the term Global Public Interest is used, there should be a rationale as to why it is being used instead of the PDP bylaw language. The council is generally concerned about the process that the Board has used to assess the effect of the recommendations on global public interest and would be happy to have a bigger conversation on the issue going forward. Happy to follow up, Elsa -- On Fri, Aug 30, 2019 at 10:21 AM Drazek, Keith via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Hi all, Final reminder on this letter. We will send at 2000 UTC. Thanks, Keith From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of Drazek, Keith via council Sent: Wednesday, August 28, 2019 1:48 PM To: council@gnso.icann.org<mailto:council@gnso.icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: [EXTERNAL] Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Hi all, Thanks to Darcy, Marie and Tatiana for their continued input on this letter. I have incorporated most of the suggested edits and added the SG/C information we discussed on 22 August and mentioned below. Attached are clean and redlined versions for your review. Please look these over and send me any final comments by this Friday at 2000 UTC. We need to wrap this up and get it sent. Thanks, Keith From: Tatiana Tropina <tatiana.tropina@gmail.com<mailto:tatiana.tropina@gmail.com>> Sent: Wednesday, August 28, 2019 1:16 PM To: Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>> Cc: Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>>; Michele Neylon - Blacknight <michele@blacknight.com<mailto:michele@blacknight.com>>; Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>; council@gnso.icann.org<mailto:council@gnso.icann.org>; gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: [EXTERNAL] Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Dear all, during the call, it was agreed that in the bullet point two we could add which constituencies/SGs supported which position - maybe as a footnote? I don't have any language suggested because I wanted to ask Terri or Nathalie for help to get the "headcount" in the footnote right so I won't make any mistakes. Would this be possible? If there are any alternative suggestions to the footnote, I can propose the text, of course. Warm regards, Tanya On Wed, 28 Aug 2019 at 19:06, Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>> wrote: Hi all, Following from Darcy’s mail below, please find the suggested amendments from the BC in the attached. Best to all, Marie From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of Darcy Southwell Sent: Thursday, August 22, 2019 4:08 PM To: Michele Neylon - Blacknight <michele@blacknight.com<mailto:michele@blacknight.com>>; Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>; council@gnso.icann.org<mailto:council@gnso.icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations In follow up to my email below and today's Council discussion, please find my proposed edits to section 2 attached. Thanks, Darcy On Fri, Aug 16, 2019 at 10:13 AM Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>> wrote: Thanks, all, for preparing this. I’m struggling a bit with section 2. I agree we’ve characterized Council’s position accurately in section 2. But the rest seems confusing. Did we already provide the Board with the written explanation of what was discussed in Marrakech? If not, we should consider explaining that it’s provided now and then be more specific in our ask to the Board. Thanks, Darcy From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> on behalf of Michele Neylon - Blacknight <michele@blacknight.com<mailto:michele@blacknight.com>> Date: Friday, August 16, 2019 at 8:35 AM To: Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Cc: "gnso-secs@icann.org<mailto:gnso-secs@icann.org>" <gnso-secs@icann.org<mailto:gnso-secs@icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Keith and Co Thanks for your work on this. I think it captures pretty accurately where we are at Regards Michele -- Mr Michele Neylon Blacknight Solutions Hosting, Colocation & Domains https://www.blacknight.com/ [blacknight.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.blacknight.com_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=-6JVq2SYiPa62xx1XlkQY0CtRr1yYddVjrrd_zNbQXY&s=BiCA-MqPKAxfFcwdr_NFkzhPPGD3yVH8IOyO7oe1aHs&e=> https://blacknight.blog/ [blacknight.blog]<https://urldefense.proofpoint.com/v2/url?u=https-3A__blacknight.blog_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=-6JVq2SYiPa62xx1XlkQY0CtRr1yYddVjrrd_zNbQXY&s=cdaaG-QhNEPYck-UdxGw-4OlN40DDWDbJ57364KKeaE&e=> Intl. +353 (0) 59 9183072 Direct Dial: +353 (0)59 9183090 Personal blog: https://michele.blog/ [michele.blog]<https://urldefense.proofpoint.com/v2/url?u=https-3A__michele.blog_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=-6JVq2SYiPa62xx1XlkQY0CtRr1yYddVjrrd_zNbQXY&s=rXcYORg695r_eFAtzJqTsp4C2RWOqMXQBF7PVmrM_Oc&e=> Some thoughts: https://ceo.hosting/ [ceo.hosting]<https://urldefense.proofpoint.com/v2/url?u=https-3A__ceo.hosting_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=-6JVq2SYiPa62xx1XlkQY0CtRr1yYddVjrrd_zNbQXY&s=1izX5j1VZBCJQnbhlF2ncIiyiPUr6zQgnHM4XtV90ro&e=> ------------------------------- Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty Road,Graiguecullen,Carlow,R93 X265,Ireland Company No.: 370845 From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> on behalf of "Drazek, Keith via council" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Reply to: Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: Thursday 15 August 2019 at 17:59 To: "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Cc: "gnso-secs@icann.org<mailto:gnso-secs@icann.org>" <gnso-secs@icann.org<mailto:gnso-secs@icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Hi all, In preparation for our 22 August GNSO Council meeting, and further Council discussion on this topic, I am attaching an updated draft letter for your review. We have attempted to incorporate everyone’s comments and expressed views in this draft. To summarize, the goal of this letter is to: 1. Ensure the Council is proceeding as expected under Annex A-1 Section 6 of the ICANN Bylaws. 2. Create a record of the Council-Board engagement in Marrakech. 3. Advise the Board of the Council’s current thinking around Recommendation #1, Purpose 2 and Recommendation #12. 4. Seek further input from the Board, and ideally confirm a common understanding or more clearly understand any difference of opinion. 5. Ensure that the Council is setting good precedent in terms of how we engage in this kind of situation. In response to comments from Marie and Flip, we have added language that acknowledges a difference of opinion among Councilors on the subject of Rec #12 and the deletion of data. Please review and provide any comments to the list. We will also discuss next week. Let me know if I missed anything. Thanks to all and I appreciate your patience on this one. Best, Keith From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of Rubens Kuhl Sent: Tuesday, July 30, 2019 2:08 PM To: Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org>; council@gnso.icann.org<mailto:council@gnso.icann.org> Subject: [EXTERNAL] Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Em 30 de jul de 2019, à(s) 10:14:000, Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> escreveu: Rubens, I share the feeling that it is uncommon to have a substantive discussion within the Council. However, that is exactly what the Bylaws mandate us to do within the atypical framework of expedited PDPs. Doesn’t the proposed one pager attached to the draft letter also address substance? I don't think the bylaws mandate who specifically does that. It's a substantive discussion, but in the same way we ask WGs to take them, we can ask the RegData EPDP WG to answer the substance. If we engage ourselves in a discussion where we first delegated authority to a WG, we would be disenfranchising them. BTW, Expedited PDPs only differ from Standard PDPs by not having an Issue Report to frame discussions. So everything we does here is a precedent for any future PDP, being an EPDP or not. As to your second comment, I think we owe it to the community to provide the Board with recommendations and reasoning that is legally sound. If certain aspects of privacy have been previously overlooked, now seems the time to correct them. IPC can send Board, PDP or anyone else any communication they see fit at any time. But the discussion here is not that, it's only the Board rationale for not approving the PDP recommendation. Rubens Best regards, Flip Flip Petillion fpetillion@petillion.law<mailto:fpetillion@petillion.law> +32484652653 www.petillion.law [petillion.law]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.petillion.law_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=-6JVq2SYiPa62xx1XlkQY0CtRr1yYddVjrrd_zNbQXY&s=CurIlNDiMa7OqiF3WiQYgRKa9eTAY1Lp_BC5xQ5X4v0&e=> <image001.png> [petillion.law]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.petillion.law_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=-6JVq2SYiPa62xx1XlkQY0CtRr1yYddVjrrd_zNbQXY&s=CurIlNDiMa7OqiF3WiQYgRKa9eTAY1Lp_BC5xQ5X4v0&e=> Attorneys – Advocaten - Avocats From: Rubens Kuhl <rubensk@nic.br<mailto:rubensk@nic.br>> Date: Tuesday, 30 July 2019 at 13:22 To: Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> Cc: Ayden Férdeline <icann@ferdeline.com<mailto:icann@ferdeline.com>>, "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Flip, I find strange we are having a substantive discussion on the topic within the Council. I believe our approach to board denials of PDP recommendation should be to ask the PDP WG what clarifications or positions they have, and relay them to the board. IPC is represented in the PDP so the same content you posted here could be used there while formulating the response, whatever that response would look like. And still on process grounds, it's clear that the board rationale for not approving part of Rec. 12 is different from the IPC rationale you relayed to the Council. But the rationale that needs to be answered to is the Board one, because they've made the decision to not fully approve rec. 12. So while it's interesting to know the overall IPC position on the matter, the topic at hand is the Board decision. Rubens On 30 Jul 2019, at 06:54, Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> wrote: Hi Ayden, Thank you for your questions and for the opportunity to clarify our position. I understand your questions address the substance of the recommendations and not the GNSO Council’s remit within the Board Approval Process. 1. Regarding your first question: You are correct that the ‘Organisation’ field pertains to information of legal entities and thus should not be subject to GDPR principles (and thus should not be deleted or even redacted). However, this is not treated as such in the Final Report. To avoid that we enter into circular discussions, we started from the premise in the Final Report (and the draft rationale for rec. #12) that the GDPR could apply to the ‘Organisation’ field. Our point is that, in such a case, the practices of both disclosing AND deleting data are subject to GDPR according to article 4 (2). ,The deletion of previously provided data can likewise not occur without a solid purpose, legal basis and safeguards. 1. Regarding your second question: (i) You are correct that the GDPR requires consent to be informed, affirmative and freely given. However, active opt-in consent is only required when relying on consent as a legal basis (art. 6.1.a). The Final Report and the guidance of the EU Authorities and DPAs have established that, depending on the purpose, the performance of the registration contract (art. 6.1.b) and legitimate interest (art. 6.1.f) are the valid legal bases. For the latter, an opt-out mechanism or redaction mechanism can be sufficient to shift the balance in favour of the interested party (cfr. Article 29 WP Guidance on Legitimate Interest) and active opt-in consent is not required. (ii) If you were to rely on consent as a legal basis, normally (and ideally) consent is obtained at the time of collection of the personal data (i.e. the registration of the domain name). It is at this point in time that the data subject (registrant) is properly informed of the processing activities and is engaged in providing the necessary information related to the purpose and legal bases (i.e., performance of the registration agreement). Practice has shown that there are a lot of problems with obtaining consent after the fact (i.e., during the performance of the registration agreement). Quite often data subjects cannot be contacted, are confused about the nature of the opt-in communication, are simply not interested, etc. Accordingly, the requirement of an active opt-in consent on the basis of a ‘review request’ to existing registrants unnecessarily risks losing valid organisation information on a wide scale. I hope this sufficiently answers your questions and clarifies the position of the IPC on this matter. Best regards, Flip Flip Petillion fpetillion@petillion.law<mailto:fpetillion@petillion.law> +32484652653 www.petillion.law [petillion.law]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.petillion.law_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=-6JVq2SYiPa62xx1XlkQY0CtRr1yYddVjrrd_zNbQXY&s=CurIlNDiMa7OqiF3WiQYgRKa9eTAY1Lp_BC5xQ5X4v0&e=> <image001.png> [petillion.law]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.petillion.law_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=-6JVq2SYiPa62xx1XlkQY0CtRr1yYddVjrrd_zNbQXY&s=CurIlNDiMa7OqiF3WiQYgRKa9eTAY1Lp_BC5xQ5X4v0&e=> Attorneys – Advocaten - Avocats From: Ayden Férdeline <icann@ferdeline.com<mailto:icann@ferdeline.com>> Reply to: Ayden Férdeline <icann@ferdeline.com<mailto:icann@ferdeline.com>> Date: Tuesday, 30 July 2019 at 00:41 To: Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> Cc: Maxim Alzoba <m.alzoba@gmail.com<mailto:m.alzoba@gmail.com>>, Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>>, "gnso-secs@icann.org<mailto:gnso-secs@icann.org>" <gnso-secs@icann.org<mailto:gnso-secs@icann.org>>, "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Hi Flip, Thanks for sharing this input from the IPC. Sorry if this is a stupid question, but since data that does not pertain to natural persons is beyond the scope of the GDPR, I do not understand how you can make the claim that article 4 (2) of the GDPR does not allow for the organisation field to be deleted. Could you please clarify? Thanks. I am also concerned that what you describe below - "Practice has shown that data subjects are generally reluctant to take active steps after their data has been collected to provide active opt-in consent (cfr. opt-in emails)" - sounds like a proposal for not obtaining consent that is valid under the GDPR, which I understand requires consent to be freely given. Kind regards, Ayden ‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐ On Monday, 29 July 2019 18:29, Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> wrote: Dear Keith, Dear All, The IPC shares the Board’s concern that the option to delete the Organisation fields contents as a result of a refusal or failure to respond by the registrant upon a ‘review request’ by the registrar, risks resulting in a wide scale loss of crucial information about the registrant's identity. While the IPC acknowledges that Recommendation #12 achieved consensus support in the EPDP Team’s Phase 1 Final Report, we agree with the Board that the “or delete the field contents” part of recommendation #12 2) b) is not in the best interests of the ICANN community or ICANN. We therefore do not agree that the recommendation should be resubmitted as is, and also not together with the presented rationale in the draft letter to the Board. Irrespective of the debate as to whether the organisation field may contain personal data or not, the issues considered in the current rationale and the concerns of the Board can both be met by redacting the organisation data in case of an opt-out (or lack of active opt-in) instead of deleting. · The concept of ‘privacy by default/design’ in the GDPR does not automatically necessitate the implementation of an opt-in mechanism (especially considering the legitimate interests attached to the transparency of organisation information online); · The deletion/erasure by a controller of previously provided personal data is also considered ‘processing’ (article 4 (2) GDPR), for which the controller must determine a purpose and proper legal basis. As a result, a registrar cannot simply delete important information provided by the registrant unless (i) the registrant has requested the erasure of the ‘Organisation’ field by exercising his right to erasure (this right must be actively exercised and cannot be inferred), (ii) the retention of the ‘Organisation’ field is no longer necessary for the purposes of processing the domain name registration data (Recommendation #15 implies that the retention period of the data elements would at the minimum be the ‘life of the registration’), or (iii) the registrar can justify the deletion on the basis of another valid legal basis (such as the consent of the registrant). Practice has shown that data subjects are generally reluctant to take active steps after their data has been collected to provide active opt-in consent (cfr. opt-in emails). Together with the expected difficulties in contacting the registrants and verifying their (lack of) consent on a wide scale, the IPC believes (in accordance with the Board Statement) that this would pose a serious and unnecessary risk to lose important registrant information. Procedurally, we fail to see the use of the checks and balances incorporated in the ‘Board Approval Process’ of Annex A-1 Section 6 of the Bylaws if it would be outside the GNSO Council’s remit to allow a modification to the Consensus Policy recommendation delivered by the EPDP Team. Section 6 of Annex A-1 of the Bylaws specifically provides: “At the conclusion of the Council and Board discussions, the Council shall meet to affirm or modify its recommendation, and communicate that conclusion (the "Supplemental Recommendation") to the Board, including an explanation for the then-current recommendation.” The IPC therefore believes it is in the GNSO Council’s remit to consult with the Board and modify a Consensus Policy Recommendation if such modification alleviates concerns raised in the Board Statement and is in the best interest of the ICANN community and ICANN. In accordance with the concern raised in the Board Statement, the IPC therefore believes that the “or delete the field contents” part (deletion option) of Recommendation #12 2) b) should be deleted. Best regards, Flip Flip Petillion fpetillion@petillion.law<mailto:fpetillion@petillion.law> +32484652653 www.petillion.law [petillion.law]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.petillion.law_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=-6JVq2SYiPa62xx1XlkQY0CtRr1yYddVjrrd_zNbQXY&s=CurIlNDiMa7OqiF3WiQYgRKa9eTAY1Lp_BC5xQ5X4v0&e=> <image002.png> [petillion.law]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.petillion.law_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=-6JVq2SYiPa62xx1XlkQY0CtRr1yYddVjrrd_zNbQXY&s=CurIlNDiMa7OqiF3WiQYgRKa9eTAY1Lp_BC5xQ5X4v0&e=> Attorneys – Advocaten - Avocats From: Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> Date: Monday, 29 July 2019 at 21:41 To: Maxim Alzoba <m.alzoba@gmail.com<mailto:m.alzoba@gmail.com>>, Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>> Cc: "gnso-secs@icann.org<mailto:gnso-secs@icann.org>" <gnso-secs@icann.org<mailto:gnso-secs@icann.org>>, "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Dear Keith, Dear All, Due to the vacation period, we will be able to send in the IPC comments later today or tomorrow morning my time. Sorry for the inconvenience. Best regards, Flip Flip Petillion fpetillion@petillion.law<mailto:fpetillion@petillion.law> +32484652653 www.petillion.law [petillion.law]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.petillion.law_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=-6JVq2SYiPa62xx1XlkQY0CtRr1yYddVjrrd_zNbQXY&s=CurIlNDiMa7OqiF3WiQYgRKa9eTAY1Lp_BC5xQ5X4v0&e=> <image003.png> [petillion.law]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.petillion.law_&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=7_PQAir-9nJQ2uB2cWiTDDDo5Hfy5HL9rSTe65iXLVM&m=-6JVq2SYiPa62xx1XlkQY0CtRr1yYddVjrrd_zNbQXY&s=CurIlNDiMa7OqiF3WiQYgRKa9eTAY1Lp_BC5xQ5X4v0&e=> Attorneys – Advocaten - Avocats From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> on behalf of Maxim Alzoba <m.alzoba@gmail.com<mailto:m.alzoba@gmail.com>> Date: Thursday, 25 July 2019 at 18:53 To: Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>> Cc: "gnso-secs@icann.org<mailto:gnso-secs@icann.org>" <gnso-secs@icann.org<mailto:gnso-secs@icann.org>>, "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations We support the current draft of the letter and comments of Darcy. Also I'd like to underline , that the modification of the recommendations is for GNSO Council, not for the Board ,and that doing micro management of PDPs is not in the GNSO Council's role. Maxim Alzoba On Wed, Jul 24, 2019, 22:44 Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>> wrote: Thanks you, Keith. The Registrar Stakeholder Group (RrSG) agrees that it's outside the Council's remit to modify, or even suggest modification of, a consensus recommendation from a PDP working group and therefore objects to modifying Recommendation 12 to remove the deletion option. The Council should seek to formalize the rationale provided to the Board in Marrakech and resubmit the consensus recommendation to the Board for approval. Therefore, RrSG supports the Council's letter to the Board as written regarding Recommendation 12. Regarding Recommendation 1, Purpose 2, the EPDP Team and Board have been quite clear that further legal analysis is necessary to ensure Purpose 2 is drafted consistent with applicable laws. In its Final Report, the EPDP Team recommended Purpose 2 be further evaluated during phase 2 of the EPDP. In its resolution, the Board clearly instructed ICANN Org to engage the DPAs to accomplish the necessary legal analysis to perform the work. That legal analysis must be completed before the EPDP Team can even begin to consider how to revise Purpose 2. Further, it is not typical for the Council to instruct a PDP as to when it works on such specific tasks. It is up to the PDP Working Group, with its leadership and coordinating with ICANN staff, to prioritize its work. So far, the EPDP Team has prioritized the work related to the System for Standardized Access to Non-Public Registration Data, consistent with its Charter, and with the concerns of many of the GNSO Councilors. At this point, the RrSG sees no reason for the Council to intervene to reprioritize the Purpose 2 work ahead of the chartered work. Best, Darcy On Fri, Jul 19, 2019 at 12:30 AM Drazek, Keith via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Hi Marie, Thanks for your initial feedback here, and for the discussion during yesterday’s Council call. On your second point below, related to the Board’s treatment of Recommendation 12, I believe it is outside the Council’s remit to suggest, or even allow, a modification to the Consensus Policy recommendation delivered to us by the EPDP Team, and subsequently delivered by Council to the Board. In my view, it is the role of Council to now hold the Board accountable for its decision to not accept Rec 12 in full, and to call for the Board to accept it following the clarification they requested. I welcome further discussion on these items following discussion with our respective SGs and Cs, but that’s my current view. Best, Keith From: Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>> Sent: Thursday, July 18, 2019 10:53 PM To: Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org>; council@gnso.icann.org<mailto:council@gnso.icann.org> Subject: [EXTERNAL] RE: Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Hi Keith, Thanks for sharing the draft. I’m afraid I haven’t been able to discuss this much with our members yet (sorry) but on an initial reading, the BC does have some concerns. On your first point, on rec 1, while the first sentence is great, we have problems with the second. As you know from the comments we attached to Janis’ letter, we really need to give the EPDP Team a clear instruction to reword this and replace the placeholder language; I understand that it’s not on the Team’s roadmap right now. We really think that at a minimum, Council needs to tell the Team to do that and get it back ASAP for Board action. We all agree that the EPDP should deal with this, so we really do need a purpose 2 (for 3rd party access) for the Board to adopt. As for your 2nd para, on rec 12, we don’t agree that it should just be resubmitted as is. As you know, the BC really does think that as far as the ORG field goes, Rec 12 should be amended to remove the deletion option. There could always be an option of to allow the contracted parties to update any inaccuracies in the ORG field, as appropriate, if they need that. Looking forward to the discussion! Thanks Marie From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of Drazek, Keith via council Sent: Wednesday, July 17, 2019 11:49 AM To: council@gnso.icann.org<mailto:council@gnso.icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Hi all, In preparation for our Council meeting this week, please review the attached draft letter to the ICANN Board concerning next steps on the two EPDP Phase 1 recommendations not accepted in full by the Board. As you will recall, we had a good conversation with the ICANN Board during our working session lunch, and we committed to following up on the issue. The draft letter is self-explanatory, and our goal is to ensure a common understanding between Council and Board before we take our formal action to request Board reconsideration on Recommendation 12. We want to avoid an ongoing back-and-forth on the issue, so our hope is this letter will pave the way to a clear resolution. Please review before our Council meeting. Thanks to Rafik and Pam for leading this work while I was on PTO. 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FYI. This was intended as a post to the council list too. Apologies for resending. Philippe From: FOUQUART Philippe TGI/OLN Sent: Friday, August 30, 2019 5:50 PM To: 'Drazek, Keith' Cc: gnso-secs@icann.org Subject: RE: [council] FW: Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Thanks Keith. The ISPCP reviewed the letter and will support the text as it stands. Regards, Philippe & Osvaldo From: council [mailto:council-bounces@gnso.icann.org] On Behalf Of Drazek, Keith via council Sent: Friday, August 30, 2019 4:22 PM To: council@gnso.icann.org Cc: gnso-secs@icann.org Subject: [council] FW: Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Hi all, Final reminder on this letter. We will send at 2000 UTC. Thanks, Keith From: council <council-bounces@gnso.icann.org> On Behalf Of Drazek, Keith via council Sent: Wednesday, August 28, 2019 1:48 PM To: council@gnso.icann.org Cc: gnso-secs@icann.org Subject: [EXTERNAL] Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Hi all, Thanks to Darcy, Marie and Tatiana for their continued input on this letter. I have incorporated most of the suggested edits and added the SG/C information we discussed on 22 August and mentioned below. Attached are clean and redlined versions for your review. Please look these over and send me any final comments by this Friday at 2000 UTC. We need to wrap this up and get it sent. Thanks, Keith From: Tatiana Tropina <tatiana.tropina@gmail.com<mailto:tatiana.tropina@gmail.com>> Sent: Wednesday, August 28, 2019 1:16 PM To: Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>> Cc: Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>>; Michele Neylon - Blacknight <michele@blacknight.com<mailto:michele@blacknight.com>>; Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>; council@gnso.icann.org<mailto:council@gnso.icann.org>; gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: [EXTERNAL] Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Dear all, during the call, it was agreed that in the bullet point two we could add which constituencies/SGs supported which position - maybe as a footnote? I don't have any language suggested because I wanted to ask Terri or Nathalie for help to get the "headcount" in the footnote right so I won't make any mistakes. Would this be possible? If there are any alternative suggestions to the footnote, I can propose the text, of course. Warm regards, Tanya On Wed, 28 Aug 2019 at 19:06, Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>> wrote: Hi all, Following from Darcy’s mail below, please find the suggested amendments from the BC in the attached. Best to all, Marie From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of Darcy Southwell Sent: Thursday, August 22, 2019 4:08 PM To: Michele Neylon - Blacknight <michele@blacknight.com<mailto:michele@blacknight.com>>; Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>; council@gnso.icann.org<mailto:council@gnso.icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations In follow up to my email below and today's Council discussion, please find my proposed edits to section 2 attached. Thanks, Darcy On Fri, Aug 16, 2019 at 10:13 AM Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>> wrote: Thanks, all, for preparing this. I’m struggling a bit with section 2. I agree we’ve characterized Council’s position accurately in section 2. But the rest seems confusing. Did we already provide the Board with the written explanation of what was discussed in Marrakech? If not, we should consider explaining that it’s provided now and then be more specific in our ask to the Board. Thanks, Darcy From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> on behalf of Michele Neylon - Blacknight <michele@blacknight.com<mailto:michele@blacknight.com>> Date: Friday, August 16, 2019 at 8:35 AM To: Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Cc: "gnso-secs@icann.org<mailto:gnso-secs@icann.org>" <gnso-secs@icann.org<mailto:gnso-secs@icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Keith and Co Thanks for your work on this. I think it captures pretty accurately where we are at Regards Michele -- Mr Michele Neylon Blacknight Solutions Hosting, Colocation & Domains https://www.blacknight.com/ https://blacknight.blog/ Intl. +353 (0) 59 9183072 Direct Dial: +353 (0)59 9183090 Personal blog: https://michele.blog/ Some thoughts: https://ceo.hosting/ ------------------------------- Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty Road,Graiguecullen,Carlow,R93 X265,Ireland Company No.: 370845 From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> on behalf of "Drazek, Keith via council" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Reply to: Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: Thursday 15 August 2019 at 17:59 To: "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Cc: "gnso-secs@icann.org<mailto:gnso-secs@icann.org>" <gnso-secs@icann.org<mailto:gnso-secs@icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Hi all, In preparation for our 22 August GNSO Council meeting, and further Council discussion on this topic, I am attaching an updated draft letter for your review. We have attempted to incorporate everyone’s comments and expressed views in this draft. To summarize, the goal of this letter is to: 1. Ensure the Council is proceeding as expected under Annex A-1 Section 6 of the ICANN Bylaws. 2. Create a record of the Council-Board engagement in Marrakech. 3. Advise the Board of the Council’s current thinking around Recommendation #1, Purpose 2 and Recommendation #12. 4. Seek further input from the Board, and ideally confirm a common understanding or more clearly understand any difference of opinion. 5. Ensure that the Council is setting good precedent in terms of how we engage in this kind of situation. In response to comments from Marie and Flip, we have added language that acknowledges a difference of opinion among Councilors on the subject of Rec #12 and the deletion of data. Please review and provide any comments to the list. We will also discuss next week. Let me know if I missed anything. Thanks to all and I appreciate your patience on this one. Best, Keith From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of Rubens Kuhl Sent: Tuesday, July 30, 2019 2:08 PM To: Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org>; council@gnso.icann.org<mailto:council@gnso.icann.org> Subject: [EXTERNAL] Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Em 30 de jul de 2019, à(s) 10:14:000, Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> escreveu: Rubens, I share the feeling that it is uncommon to have a substantive discussion within the Council. However, that is exactly what the Bylaws mandate us to do within the atypical framework of expedited PDPs. Doesn’t the proposed one pager attached to the draft letter also address substance? I don't think the bylaws mandate who specifically does that. It's a substantive discussion, but in the same way we ask WGs to take them, we can ask the RegData EPDP WG to answer the substance. If we engage ourselves in a discussion where we first delegated authority to a WG, we would be disenfranchising them. BTW, Expedited PDPs only differ from Standard PDPs by not having an Issue Report to frame discussions. So everything we does here is a precedent for any future PDP, being an EPDP or not. As to your second comment, I think we owe it to the community to provide the Board with recommendations and reasoning that is legally sound. If certain aspects of privacy have been previously overlooked, now seems the time to correct them. IPC can send Board, PDP or anyone else any communication they see fit at any time. But the discussion here is not that, it's only the Board rationale for not approving the PDP recommendation. Rubens Best regards, Flip Flip Petillion fpetillion@petillion.law<mailto:fpetillion@petillion.law> +32484652653 www.petillion.law<http://www.petillion.law/> <image001.png><http://www.petillion.law/> Attorneys – Advocaten - Avocats From: Rubens Kuhl <rubensk@nic.br<mailto:rubensk@nic.br>> Date: Tuesday, 30 July 2019 at 13:22 To: Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> Cc: Ayden Férdeline <icann@ferdeline.com<mailto:icann@ferdeline.com>>, "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Flip, I find strange we are having a substantive discussion on the topic within the Council. I believe our approach to board denials of PDP recommendation should be to ask the PDP WG what clarifications or positions they have, and relay them to the board. IPC is represented in the PDP so the same content you posted here could be used there while formulating the response, whatever that response would look like. And still on process grounds, it's clear that the board rationale for not approving part of Rec. 12 is different from the IPC rationale you relayed to the Council. But the rationale that needs to be answered to is the Board one, because they've made the decision to not fully approve rec. 12. So while it's interesting to know the overall IPC position on the matter, the topic at hand is the Board decision. Rubens On 30 Jul 2019, at 06:54, Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> wrote: Hi Ayden, Thank you for your questions and for the opportunity to clarify our position. I understand your questions address the substance of the recommendations and not the GNSO Council’s remit within the Board Approval Process. 1. Regarding your first question: You are correct that the ‘Organisation’ field pertains to information of legal entities and thus should not be subject to GDPR principles (and thus should not be deleted or even redacted). However, this is not treated as such in the Final Report. To avoid that we enter into circular discussions, we started from the premise in the Final Report (and the draft rationale for rec. #12) that the GDPR could apply to the ‘Organisation’ field. Our point is that, in such a case, the practices of both disclosing AND deleting data are subject to GDPR according to article 4 (2). ,The deletion of previously provided data can likewise not occur without a solid purpose, legal basis and safeguards. 1. Regarding your second question: (i) You are correct that the GDPR requires consent to be informed, affirmative and freely given. However, active opt-in consent is only required when relying on consent as a legal basis (art. 6.1.a). The Final Report and the guidance of the EU Authorities and DPAs have established that, depending on the purpose, the performance of the registration contract (art. 6.1.b) and legitimate interest (art. 6.1.f) are the valid legal bases. For the latter, an opt-out mechanism or redaction mechanism can be sufficient to shift the balance in favour of the interested party (cfr. Article 29 WP Guidance on Legitimate Interest) and active opt-in consent is not required. (ii) If you were to rely on consent as a legal basis, normally (and ideally) consent is obtained at the time of collection of the personal data (i.e. the registration of the domain name). It is at this point in time that the data subject (registrant) is properly informed of the processing activities and is engaged in providing the necessary information related to the purpose and legal bases (i.e., performance of the registration agreement). Practice has shown that there are a lot of problems with obtaining consent after the fact (i.e., during the performance of the registration agreement). Quite often data subjects cannot be contacted, are confused about the nature of the opt-in communication, are simply not interested, etc. Accordingly, the requirement of an active opt-in consent on the basis of a ‘review request’ to existing registrants unnecessarily risks losing valid organisation information on a wide scale. I hope this sufficiently answers your questions and clarifies the position of the IPC on this matter. Best regards, Flip Flip Petillion fpetillion@petillion.law<mailto:fpetillion@petillion.law> +32484652653 www.petillion.law<http://www.petillion.law/> <image001.png><http://www.petillion.law/> Attorneys – Advocaten - Avocats From: Ayden Férdeline <icann@ferdeline.com<mailto:icann@ferdeline.com>> Reply to: Ayden Férdeline <icann@ferdeline.com<mailto:icann@ferdeline.com>> Date: Tuesday, 30 July 2019 at 00:41 To: Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> Cc: Maxim Alzoba <m.alzoba@gmail.com<mailto:m.alzoba@gmail.com>>, Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>>, "gnso-secs@icann.org<mailto:gnso-secs@icann.org>" <gnso-secs@icann.org<mailto:gnso-secs@icann.org>>, "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Hi Flip, Thanks for sharing this input from the IPC. Sorry if this is a stupid question, but since data that does not pertain to natural persons is beyond the scope of the GDPR, I do not understand how you can make the claim that article 4 (2) of the GDPR does not allow for the organisation field to be deleted. Could you please clarify? Thanks. I am also concerned that what you describe below - "Practice has shown that data subjects are generally reluctant to take active steps after their data has been collected to provide active opt-in consent (cfr. opt-in emails)" - sounds like a proposal for not obtaining consent that is valid under the GDPR, which I understand requires consent to be freely given. Kind regards, Ayden ‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐ On Monday, 29 July 2019 18:29, Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> wrote: Dear Keith, Dear All, The IPC shares the Board’s concern that the option to delete the Organisation fields contents as a result of a refusal or failure to respond by the registrant upon a ‘review request’ by the registrar, risks resulting in a wide scale loss of crucial information about the registrant's identity. While the IPC acknowledges that Recommendation #12 achieved consensus support in the EPDP Team’s Phase 1 Final Report, we agree with the Board that the “or delete the field contents” part of recommendation #12 2) b) is not in the best interests of the ICANN community or ICANN. We therefore do not agree that the recommendation should be resubmitted as is, and also not together with the presented rationale in the draft letter to the Board. Irrespective of the debate as to whether the organisation field may contain personal data or not, the issues considered in the current rationale and the concerns of the Board can both be met by redacting the organisation data in case of an opt-out (or lack of active opt-in) instead of deleting. · The concept of ‘privacy by default/design’ in the GDPR does not automatically necessitate the implementation of an opt-in mechanism (especially considering the legitimate interests attached to the transparency of organisation information online); · The deletion/erasure by a controller of previously provided personal data is also considered ‘processing’ (article 4 (2) GDPR), for which the controller must determine a purpose and proper legal basis. As a result, a registrar cannot simply delete important information provided by the registrant unless (i) the registrant has requested the erasure of the ‘Organisation’ field by exercising his right to erasure (this right must be actively exercised and cannot be inferred), (ii) the retention of the ‘Organisation’ field is no longer necessary for the purposes of processing the domain name registration data (Recommendation #15 implies that the retention period of the data elements would at the minimum be the ‘life of the registration’), or (iii) the registrar can justify the deletion on the basis of another valid legal basis (such as the consent of the registrant). Practice has shown that data subjects are generally reluctant to take active steps after their data has been collected to provide active opt-in consent (cfr. opt-in emails). Together with the expected difficulties in contacting the registrants and verifying their (lack of) consent on a wide scale, the IPC believes (in accordance with the Board Statement) that this would pose a serious and unnecessary risk to lose important registrant information. Procedurally, we fail to see the use of the checks and balances incorporated in the ‘Board Approval Process’ of Annex A-1 Section 6 of the Bylaws if it would be outside the GNSO Council’s remit to allow a modification to the Consensus Policy recommendation delivered by the EPDP Team. Section 6 of Annex A-1 of the Bylaws specifically provides: “At the conclusion of the Council and Board discussions, the Council shall meet to affirm or modify its recommendation, and communicate that conclusion (the "Supplemental Recommendation") to the Board, including an explanation for the then-current recommendation.” The IPC therefore believes it is in the GNSO Council’s remit to consult with the Board and modify a Consensus Policy Recommendation if such modification alleviates concerns raised in the Board Statement and is in the best interest of the ICANN community and ICANN. In accordance with the concern raised in the Board Statement, the IPC therefore believes that the “or delete the field contents” part (deletion option) of Recommendation #12 2) b) should be deleted. Best regards, Flip Flip Petillion fpetillion@petillion.law<mailto:fpetillion@petillion.law> +32484652653 www.petillion.law<http://www.petillion.law/> <image002.png><http://www.petillion.law/> Attorneys – Advocaten - Avocats From: Flip Petillion <fpetillion@petillion.law<mailto:fpetillion@petillion.law>> Date: Monday, 29 July 2019 at 21:41 To: Maxim Alzoba <m.alzoba@gmail.com<mailto:m.alzoba@gmail.com>>, Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>> Cc: "gnso-secs@icann.org<mailto:gnso-secs@icann.org>" <gnso-secs@icann.org<mailto:gnso-secs@icann.org>>, "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Dear Keith, Dear All, Due to the vacation period, we will be able to send in the IPC comments later today or tomorrow morning my time. Sorry for the inconvenience. Best regards, Flip Flip Petillion fpetillion@petillion.law<mailto:fpetillion@petillion.law> +32484652653 www.petillion.law<http://www.petillion.law/> <image003.png><http://www.petillion.law/> Attorneys – Advocaten - Avocats From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> on behalf of Maxim Alzoba <m.alzoba@gmail.com<mailto:m.alzoba@gmail.com>> Date: Thursday, 25 July 2019 at 18:53 To: Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>> Cc: "gnso-secs@icann.org<mailto:gnso-secs@icann.org>" <gnso-secs@icann.org<mailto:gnso-secs@icann.org>>, "council@gnso.icann.org<mailto:council@gnso.icann.org>" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations We support the current draft of the letter and comments of Darcy. Also I'd like to underline , that the modification of the recommendations is for GNSO Council, not for the Board ,and that doing micro management of PDPs is not in the GNSO Council's role. Maxim Alzoba On Wed, Jul 24, 2019, 22:44 Darcy Southwell <darcy.southwell@endurance.com<mailto:darcy.southwell@endurance.com>> wrote: Thanks you, Keith. The Registrar Stakeholder Group (RrSG) agrees that it's outside the Council's remit to modify, or even suggest modification of, a consensus recommendation from a PDP working group and therefore objects to modifying Recommendation 12 to remove the deletion option. The Council should seek to formalize the rationale provided to the Board in Marrakech and resubmit the consensus recommendation to the Board for approval. Therefore, RrSG supports the Council's letter to the Board as written regarding Recommendation 12. Regarding Recommendation 1, Purpose 2, the EPDP Team and Board have been quite clear that further legal analysis is necessary to ensure Purpose 2 is drafted consistent with applicable laws. In its Final Report, the EPDP Team recommended Purpose 2 be further evaluated during phase 2 of the EPDP. In its resolution, the Board clearly instructed ICANN Org to engage the DPAs to accomplish the necessary legal analysis to perform the work. That legal analysis must be completed before the EPDP Team can even begin to consider how to revise Purpose 2. Further, it is not typical for the Council to instruct a PDP as to when it works on such specific tasks. It is up to the PDP Working Group, with its leadership and coordinating with ICANN staff, to prioritize its work. So far, the EPDP Team has prioritized the work related to the System for Standardized Access to Non-Public Registration Data, consistent with its Charter, and with the concerns of many of the GNSO Councilors. At this point, the RrSG sees no reason for the Council to intervene to reprioritize the Purpose 2 work ahead of the chartered work. Best, Darcy On Fri, Jul 19, 2019 at 12:30 AM Drazek, Keith via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Hi Marie, Thanks for your initial feedback here, and for the discussion during yesterday’s Council call. On your second point below, related to the Board’s treatment of Recommendation 12, I believe it is outside the Council’s remit to suggest, or even allow, a modification to the Consensus Policy recommendation delivered to us by the EPDP Team, and subsequently delivered by Council to the Board. In my view, it is the role of Council to now hold the Board accountable for its decision to not accept Rec 12 in full, and to call for the Board to accept it following the clarification they requested. I welcome further discussion on these items following discussion with our respective SGs and Cs, but that’s my current view. Best, Keith From: Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>> Sent: Thursday, July 18, 2019 10:53 PM To: Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org>; council@gnso.icann.org<mailto:council@gnso.icann.org> Subject: [EXTERNAL] RE: Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Hi Keith, Thanks for sharing the draft. I’m afraid I haven’t been able to discuss this much with our members yet (sorry) but on an initial reading, the BC does have some concerns. On your first point, on rec 1, while the first sentence is great, we have problems with the second. As you know from the comments we attached to Janis’ letter, we really need to give the EPDP Team a clear instruction to reword this and replace the placeholder language; I understand that it’s not on the Team’s roadmap right now. We really think that at a minimum, Council needs to tell the Team to do that and get it back ASAP for Board action. We all agree that the EPDP should deal with this, so we really do need a purpose 2 (for 3rd party access) for the Board to adopt. As for your 2nd para, on rec 12, we don’t agree that it should just be resubmitted as is. As you know, the BC really does think that as far as the ORG field goes, Rec 12 should be amended to remove the deletion option. There could always be an option of to allow the contracted parties to update any inaccuracies in the ORG field, as appropriate, if they need that. Looking forward to the discussion! Thanks Marie From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of Drazek, Keith via council Sent: Wednesday, July 17, 2019 11:49 AM To: council@gnso.icann.org<mailto:council@gnso.icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: [council] Draft GNSO Council Letter to ICANN Board on EPDP Phase 1 Recommendations Hi all, In preparation for our Council meeting this week, please review the attached draft letter to the ICANN Board concerning next steps on the two EPDP Phase 1 recommendations not accepted in full by the Board. As you will recall, we had a good conversation with the ICANN Board during our working session lunch, and we committed to following up on the issue. The draft letter is self-explanatory, and our goal is to ensure a common understanding between Council and Board before we take our formal action to request Board reconsideration on Recommendation 12. We want to avoid an ongoing back-and-forth on the issue, so our hope is this letter will pave the way to a clear resolution. Please review before our Council meeting. Thanks to Rafik and Pam for leading this work while I was on PTO. Best, Keith _______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). 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