3. WHOIS/RDS exists in order to be accessed by third parties (i.e., folks other than the registrant and the registrar). There are many, many legitimate use cases for access.
This argument begs the questions as to who are the 'third parties', what are the 'use cases' and what happens to the data after it has been used. Regards CW
El 7 de agosto de 2018 a las 22:17 Greg Shatan <greg@isoc-ny.org> escribió:
I’ve been watching this conversation unfold for awhile. A few observations:
1. Nobody suggested that ALAC support an outcome that would violate GDPR. Compliance with GDPR is a given. Thankfully, that misunderstanding seems to have been cleared up.
2. No one is arguing in favor of putting the “private info of registrants” into “the hands of bad actors.” Indeed, GDPR is not primarily aimed at preventing access by bad actors. Rather it is aimed at regulating the use of personal data by any actor. I haven’t really thought about it, but GDPR is probably not going to be a major deterrent against real bad actors.
3. WHOIS/RDS exists in order to be accessed by third parties (i.e., folks other than the registrant and the registrar). There are many, many legitimate use cases for access. Of course, there are “mis-use cases” involving bad actors, and one of the obvious challenges for the EPDP is dealing with those. From the point of view of the end-user, that needs to be dealt with in a way that does not hinder timely, straight-forward legitimate access to Whois data.
4. I have seen no evidence that the European Data Protection people have thought about how WHOIS/RDS can function under GDPR. More broadly, GDPR is a law about access, in very large part. GDPR provides a road map for data controllers and processors to get and “process” (use, store, provide access to, transfer, delete, etc.) data. Much of GDPR is concerned with how data is used (I’d rather use that term than “processed” for these discussions), the purposes for which it is used, how it is stored, how it is transferred, who is responsible for any use, the circumstances when a data subject does (and does not) have control over how their data is used. GDPR assumes that data will be “processed” and creates a set of rules of the road for that processing.
5. It is true that end-users and registrants benefit from both privacy and security. End-users benefit directly and indirectly from access to WHOIS/RDS data, for non-security related reasons as well as security-related reasons. Registrants also benefit from access to WHOIS/RDS, both by themselves and by third parties in a variety of ways. Registrants benefit from data privacy, at least with regard to their own data (though they may lose some of the benefits that come from third party access to their data, such as receiving offers to purchase domain names). However, I struggling to see how end-users (as end-users) benefit from barriers to accessing registrant WHOIS/RDS data.
6. How Cambridge Analytica got Facebook data is not particularly relevant. But if it is going to be used as a “cautionary tale”, we need to be accurate, so that the right lessons can be learned. Cambridge Analytica did NOT get the data by making a request to Facebook “to have access to these data for research.” In fact, they didn’t get the data directly from Facebook at all. The data was gathered through a personality quiz app, which was (as Facebook was configured at that time and with the consent of the participants) able to harvest data about friends and friends-of-friends of the participants, as well as the participants. It may have been used for legitimate research purposes. However, the data was then sold to Cambridge Analytica, without Facebook’s knowledge and in violation of their terms of service.
7. The California Consumer Privacy Act is already here, though it won’t be enforced until 2020. While it bears a resemblance to GDPR, it has many differences as well, and some of its goals are quite different. Like GDPR it is not primarily aimed at keeping data out of the hands of bad actors. I have not yet considered the impact of the CCPA on WHOIS/RDS, and how it is similar or different to the impact of GDPR. Its primary goals seem to be to control data monetization, and to give consumers greater access to their data, with data subject rights similar to those in GDPR.
8. Overall, I agree with those who believe that appropriate and timely access to WHOIS/RDS data benefits end-users. Whether GDPR is good or bad for end-users is moot. GDPR exists, and how it is dealt with will show how good or bad it is for end-users. Our goal should be to have GDPR implemented in the WHOIS/RDS context in a way that maximizes the benefit and minimizes the harm to end-users.
Best regards,
Greg Shatan
On Tue, Aug 7, 2018 at 1:58 PM Evan Leibovitch <evanleibovitch@gmail.com> wrote:
I don't know about the Europeans or the California government. I do have more than a decade's experience in ICANN, however, and have observed that its track record in both decent privacy and decent accessibility is abysmal.
___________________ Evan Leibovitch, Toronto @evanleibovitch/@el56
On Tue, Aug 7, 2018, 1:30 PM Marita Moll, <mmoll@ca.inter.net> wrote:
With respect Evan, saying I am missing the point is not really respectful. No one is arguing for privacy without protections. I don't have all the information I need to support this, but I have a feeling the European Data Protection people might have thought about this. They don't want to protect bad actors either. And I have heard that a similiar law to GDPR is under consideration in California. So I don't see any need to think we are only ones concerned with keeping bad actors out of the ring.
Marita
On 8/7/2018 7:08 PM, Evan Leibovitch wrote:
Hi Marita,
I think you may be missing the point when you state that "keeping the private info of registrants out of the hands of bad actors protects both parties". The examples that exist in abundance come from registrants who /ARE themselves/ the bad actors, that hide behind either privacy regulations or inaccurate contact information to avoid being held to account for their harm.
Just as the right to freedom of speech is not absolute -- even in America -- neither is the right to privacy a way to hide accountability for causing demonstrable harm. Augmenting privacy with tiered access is fine so long as it is accessible to victims and effective in execution; that is exactly the balance of which I speak. This won't be easy -- being physically threatened demands a different response to merely being insulted -- but it is vital. Without such checks and balances, absolute privacy is a sure source of far more harm than good. For every whistleblower protected, a dozen others will be scammed out of their life savings, and thousands more will live in fear for their lives because of death threats from those with unchecked anonymity. This is not theory, it is happening.
In summary, it is both naive and against the global public interest to advocate for privacy without advocating just as strenuously for appropriate protections against bad actors who seek to exploit that privacy to cause harm. At-Large seeks both.
- Evan
PS: I absolutely reject the assertion that it is fear-mongering to simply want to prevent abuse of privacy by some registrants that is both clearly evidenced and ongoing.
On Aug 7, 2018, at 11:55, Marita Moll <mmoll@ca.inter.net <mailto:mmoll@ca.inter.net>> wrote:
Hello Evan and Allan. I agree with a number of those here how have suggested that the interests of registrants and end-users are not that different. Keeping the private info of registrants out of the hands of bad actors protects both parties. If crimes are committed, having tiered access to the info would release that info to validated authorities. As a registrant, I don't want my private information out there if it isn't necessary. And I don't see how shielding my private info on WhoIS will endanger my neighbour once tiered access is agreed upon. This is no different from the way the law usually works -- we don't all have to live in glass houses in order to be safe. We need well thought out procedures that protect all of us.
It's just my opinion. I know others have good arguments. But I don't buy the scary scenarios being presented by some groups hoping to scuttle this whole thing. If the Europeans don't think the world will come to an end once GDPR is enforced, why is the boogey man being unleashed in North America?
http://www.insidesources.com/fake-news-fake-pharmacies-whats-next/
Marita
On 8/7/2018 5:09 AM, Alan Greenberg wrote:
Marita, you cannot take one phrase out of context. If you go back in the thread (which was not fully copied here) I believe that a major concern of Holly and Bastiaan was that my statement sounded like it was trying to get around GDPR, but in fact compliance with GDPR is (to use a Startrek expression) "the prime directive". It is not a simple matter of security vs privacy. If, for instance, we were talking about USER security vs USER privacy, we would have a real challenge in deciding which was more important and I am pretty sure we would not even try in the general case. But that is not what we are taking about here. We are talking about gTLD REGISTRANT privacy vs USER security. And the ALAC's position has previously been that although we care about registrants (and their privacy and their domains etc) and have put very significant resources into supporting gTLD registrants, the shear number of users makes their security and ability to use the Internet with relative safety and trust takes precedence over the privacy of the relative handful of gTLD registrants. That is why ICANN has (and continues to) support the existing WHOIS system to the extent possible. That is the entire gist of the Temporary Spec. - /"Consistent with ICANN’s stated objective to comply with the GDPR, while maintaining the existing WHOIS system to the greatest extent possible, the Temporary Specification maintains....." /And I note with some amusement that some filter along the way has flagged this entire thread as SPAM. Alan At 06/08/2018 12:08 PM, Marita Moll wrote:
I am in agreement with Tijani, Holly, Bastian and Michele. Perhaps it is unintentional, but the language does send the message that we are looking more carefully at security than privacy. I am also not convinced that end-users would want us to do that. Marita On 8/3/2018 10:30 AM, Tijani BEN JEMAA wrote:
Very interesting discussion. This issue has been discussed several times and the positions didn’t change. What bothers me is the presentation of the registrants interest as opposite to the remaining users ones. they are not since the registrants are also subject to the domain abuse. You are speaking about 4 billion users; these include all: contracted parties, business, registrants, governments, etc. We are about defending the interest of all of them as individual end users, not as registry, registrar, businessman, minister, etc…. You included the cybersecurity researchers; you know how Cambridge Analytica got the American data from Facebook? They requested to have access to these data for research, and the result was the American election result impacted. So, I agree with Bastiaan that we need to be careful and care about the protection of personal data as well as the prevention of any harmful use of the domain names, both together.
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*Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114
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Le 3 août 2018 à 07:22, Bastiaan Goslings <bastiaan.goslings@ams-ix.net <mailto:bastiaan.goslings@ams-ix.net <mailto:bastiaan.goslings@ams-ix.net>>> a écrit : Thanks for clarifying, Alan. As a matter of principle I agree with Holly - and Michele. While I think I understand the good intent of what you are saying, your earlier responses almost sound to me like a false ‘security versus privacy’ dichotomy. Like, the number of people (users) that care about security as opposed to those (registrants) that want their privacy protected to the max is larger. Etc. Apologies if I am oversimplifying things here, I do not mean to. In this particular EPDP case though I am convinced that we can find a common ground on what the ALAC members and alternates should bring to the table. In terms of perceived registrants’ and general Internet end-users’ interests. As you rightly state, it is about being GDPR compliant. So we do not have to be philosophical about a rather broad term like ‘privacy’ and argue about whether it is in conflict with e.g. the interest of LEAs. Indeed, ‘Privacy is not absolute’. However, ‘due process’ is a(nother) no brainer, not just because it might be a legal requirement. From what I understand the work being done on defining Access and Accreditation criteria is keeping that principle in mind, and within in the MS context of the EPDP we can together see to it that it does end up properly enshrined in policy and contracts. -Bastiaan
On 3 Aug 2018, at 01:10, Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca>>> wrote: Holly, the original statement ends with "All within the constraints of GDPR of course." I don't know how to make that clearer. We would be absolutely FOOLISH to argue for anything else, since it will not be implementable. That being said, if through the EPDP or otherwise we can help make the legal argument for why good access for the folks we list at the end is within GDPR, more power to us. GDPR (and eventually similar legislation/regulation elsewhere) is the overall constraint. It is equivalent to the laws of physics which for the moment we need to consider inviolate. So my statement that "other issues trump privacy" is within that context. But just as proportionality governs what GDPR will decree as private in any given case, so it will govern what is not private. It all depends on making the legal argument and ultimately in needed convincing the courts. They are the arbiters, not me or anyone else in ICANN. In the US, there is the constitutional right to freedom of speech, but it is not unconstrained and there are limits to what you are allowed and not allowed to say. And from time to time, the courts and legislatures weigh in and decide where the line is. Alan At 02/08/2018 06:42 PM, Holly Raiche wrote:
Hi Alan I have concerns with your statement - and since your reply below, with our statement of principles for the EPDP. As I suggested in my email of 1 August, we need to be VERY clear that we are NOT arguing against implementation a policy that is compliant with the GDPR.  We are arguing for other issues that impact on users - WITHIN the umbrella of the GDPR.  And if we do not make that very clear, then we look as if we are not prepared to operate within the bounds of the EPDP - which is all about developing a new policy to replace the RDS requirements that will allow registries/registrars to comply with their ICANN contracts and operate within the GDPR framework. So your statement below that ‘yes, other issues trump privacy’ - misstates that.  What we are (or should be) arguing for is a balance of rights of access that - to the greatest extend possible - recognises the value of RDS to some constituencies with legitimate purposes - WITHIN the GDPR framework. That implicitly accepts that people/organisations that once had free and unrestricted access to the data will no longer have that open access. And for ALAC generally, I will repeat what I said in my 1 August email - our statement of principles must be VERY clear that we are NOT arguing for a new RDS policy that goes outside of the GDPR. Holly On 3 Aug 2018, at 1:29 am, Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca>> >
wrote:
At 02/08/2018 10:37 AM, Michele Neylon - Blacknight wrote:
Jonathan / Alan Thanks for the clarifications. 3 - I don't know how you can know what the interests of a user are. The assumption you seem to be making is that due process and privacy should take a backseat to access to data
Privacy is not absolute but based on various other issues. So yes, we are saying that in some cases, the other issues trump privacy. Perhaps we differ on where the dividing line is.
4 - Same as 3. Plenty of ccTLDs never offered PII in their public whois and there weren't any issues with security or stability. Skipping due process for "ease of access" is a very slippery and dangerous slope.
Both here and in reply to #3, the term "due process" tends to be used in reference to legal constraints associated with law enforcement actions as sanctioned by laws and courts. That is one path to unlocking otherwise private information. A major aspect of the GDPR implementation will be identifying other less cumbersome and restricted processes for accessing WHOIS data by a variety of partners. It will not be unconstrained nor will it be as cumbersome as going to court (hopefully). Alan
Regards Michele -- Mr Michele Neylon Blacknight Solutions Hosting, Colocation & Domains https://www.blacknight.com/ <https://www.blacknight.com/> https://blacknight.blog/ <https://blacknight.blog/> Intl. +353 (0) 59 Â 9183072 Direct Dial: +353 (0)59 9183090 Personal blog: https://michele.blog/ Some thoughts: https://ceo.hosting/
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Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty Road,Graiguecullen,Carlow,R93 X265,Ireland  Company No.: 370845 On 02/08/2018, 15:03, "Jonathan Zuck" <JZuck@innovatorsnetwork.org> wrote:   Thanks Michele!   3. Where there appears to be a conflict of interest between a registrant and non-registrant end user, we'll be endeavoring to represent the interests of the non-registrant end user.   4. Related to 3. This is simply an affirmation of the interests of end users in a stable and secure internet and it is those interests we'll be representing. We've included law enforcement because efficiencies regarding their access may come up. Just because there's always a way for them to get to data doesn't mean it's the best way.   Make sense?   Jonathan   -----Original Message-----   From: GTLD-WG <
gtld-wg-bounces@atlarge-lists.icann.org>
On Behalf Of Michele Neylon - Blacknight   Sent: Wednesday, August 1, 2018 12:34 PM   To: Alan Greenberg <alan.greenberg@mcgill.ca>; CPWG <cpwg@icann.org>   Subject: Re: [GTLD-WG] [CPWG] [registration-issues-wg] ALAC Statement regarding EPDP   Alan   1 - good   2 - good   3 - I don't understand what that means   4 - Why are you combining law enforcement and private parties? Law enforcement can always get access to data when they follow due process.   Regards   Michele   --   Mr Michele Neylon   Blacknight Solutions   Hosting, Colocation & Domains   https://www.blacknight.com/ <https://www.blacknight.com/>   https://blacknight.blog/ <https://blacknight.blog/>   Intl. +353 (0) 59  9183072   Direct Dial: +353 (0)59 9183090   Personal blog: https://michele.blog/   Some thoughts: https://ceo.hosting/  Â
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  Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty   Road,Graiguecullen,Carlow,R93 X265,Ireland  Company No.: 370845   On 01/08/2018, 17:27, "registration-issues-wg on behalf of Alan Greenberg" <
registration-issues-wg-bounces@atlarge-lists.icann.org
on behalf of alan.greenberg@mcgill.ca> wrote:       Yesterday, the EPDP Members were asked to present a 1-3 minute       summary of their groups position in regard to the EPDP. The following       is the statement agreed to by me, Hadia, Holly and Seun.       1.   The ALAC believes that the EPDP MUST succeed and will be working       toward that end.       2.   We have a support structure that we are organizing to ensure       that what we present here is understood by our community and has       their input and support.       3.   The ALAC believes that individual registrants are users and we       have regularly worked on their behalf (as in the PDP that we       initiated to protect registrant rights when their domains expire), if       registrant needs differ from those of the 4 billion Internet users       who are not registrants, those latter needs take precedence. We       believe that GDPR and this EPDP are such a situation.       4.   Although some Internet users consult WHOIS and will not be able       to do so in some cases going forward, our main concern is access for       those third parties who work to ensure that the Internet is a safe       and secure place for users and that means that law enforcement,       cybersecurity researchers, those combatting fraud in domain names,       and others who help protect users from phishing, malware, spam,       fraud, DDoS attacks and such can work with minimal reduction in       access to WHOIS data. All within the constraints of GDPR of course.      Â
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