I agree that ICANN is not in the business of making its own privacy laws and indeed the RDS WG ship sunk !!! Hadia On Wednesday, October 31, 2018, 8:27:22 PM GMT+2, Greg Shatan <greg@isoc-ny.org> wrote: Hadia and all, First, I think we must assume that registries/registrars know whether they are located (or “established,” to use GDPR terminology) in the European Union. At the least, we must assume that they are capable of making that determination. For registries and registrars located in the EU, a distinction based on the geographic location of the registrant is irrelevant, since the registry/registrar must comply with GDPR regarding the personal data of all natural person data subjects. So, the EPDP cannot even discuss the application of geographic distinctions by EU registries/registrars, because these registries/registrars have no use for that distinction. Therefore, this discussion in the EPDP should be limited to non-EU registries/registrars. The question then becomes whether non-EU registry operators and registrars should be permitted or required to differentiate between registrants based on the their geographic location. These registries/registrars are under no obligation to extend GDPR protections to non-EU registrants. They are, however, under a contractual obligation to collect and publish WHOIS data to the extent allowed by applicable law. These registries/registrars need to follow their obligations, which are unchanged regarding all who are not EU data subjects. The GDPR’s extraterritorial effect needs to be appropriately interpreted and respected. Its limits also need to be respected. Applying a law where that law does not apply is not applying the law at all. For ICANN, it is pure policy-making, not legal compliance. I’m fairly sure the EPDP does not have a mandate to undo WHOIS/RDS policy and make new data protection policy. (Arguably, the RDS WG did, but that ship has sailed (or more accurately, that ship has sunk).). Nor does the EPDP have a mandate to extend the reach of GDPR beyond its legal bounds. Taken in tandem with ALAC’s long-standing commitments to WHOIS access and to the interest of the end-users (the vast, vast majority of whom are not registrants), I think the choice is so clear, it is not even a choice. Non-EU registrars/registrars should be required to make the geographic distinction. Of course, there is a complicating case, where an EU reseller is a reseller for a non-EU registrar, and the reseller collects data of non-EU data subject. The issues raised by the reseller case should be resolved for that particular case, and should not be used as an excuse to apply GDPR beyond its legal and geographic boundaries. Best regards, Greg On Wed, Oct 31, 2018 at 6:26 AM Hadia Abdelsalam Mokhtar EL miniawi <Hadia@tra.gov.eg> wrote: Hi All, So going back to the EPDP team charter question if registry operators and registrars should be permitted or required to differentiate between registrants based on the geographic location, I am of the opinion that no distinction should be made based on the geographic location of the registrant and the reason is that whether the GDPR applies or not does not only depend on the location of the registrant but it also depends on the location of the controller and processor, that is the registry, registrars and resellers and any other related processors. The regulation has this nature of extended territory, as I see it the impact of this distinction will be mainly on the industry, so registrants might choose a reseller in Europe over a reseller or a registrar outside of the EU or vice versa just to be protected or not protected by the GDPR . I cannot see the merit of the registries and registrars differentiating between the registrants based on their geographic location, where registrants not residing in the EU will be treated in accordance to the GDPR if their reseller or registrar is in the EU, the distinction based only on the geographic location of the registrant is already not possible according to the GDPR. Kindest Regards Hadia -----Original Message----- From: CPWG [mailto:cpwg-bounces@icann.org] On Behalf Of gtheo Sent: Tuesday, October 30, 2018 9:47 AM To: Greg Shatan Cc: Jonathan Zuck; CPWG Subject: Re: [CPWG] [registration-issues-wg] [GTLD-WG] EPDP: Geographic distinction As an EU Registrar I need to comply with the GDPR (obvious), as such I need to apply the GDPR to all my international customers or I would not be compliant (maybe not so obvious). You could perhaps make a distinction between EU vs non EU Registrars? But how do you mix in the other 126 data protection laws that keep growing in numbers? The EPDP team needs to factor that in also. Ultimately the distinction will almost not work. https://iapp.org/news/privacy-tracker/ Thanks, Theo Geurts Greg Shatan schreef op 2018-10-30 05:52 AM:
Alan,
One slight caveat: an EU Citizen living in the US would still get the benefit of GDPR when the Controller or Processor with their data is “established” in the EU. But they get that benefit only because the Controller or Processor’s covered by GDPR.
Greg On Tue, Oct 30, 2018 at 12:40 AM Greg Shatan <greg@isoc-ny.org> wrote:
I also think it should be restricted to what GDPR requires. Anything beyond that essentially puts ICANN into the business of making privacy policy without a basis in law, which is beyond the remit of the EPDP.
There may be an interesting discussion to be had about whether ICANN should change WHOIS for policy reasons, but the EPDP is not the place for that conversation.
Greg On Mon, Oct 29, 2018 at 11:12 PM Jonathan Zuck < JZuck@innovatorsnetwork.org> wrote:
I'm inclined to say restricted if for no other reason than we'll eventually have a bunch of GDPRs that are slightly different.
On 10/29/18, 9:36 PM, "GTLD-WG on behalf of Alan Greenberg" < gtld-wg-bounces@atlarge-lists.icann.org on behalf of alan.greenberg@mcgill.ca> wrote:
GDPR is applicable to residents of the EU by companies resident there and worldwide.
One of the issues is whether contracted parties should be allowed or required to distinguish between those who are resident there and elsewhere.
There is agreement that such distinction should be allowed, but EPDP is divided on whether it should be required. The GAC/BC/IPC want to see the distinction made, and at least one very large contracted party does already make the distinction. Other contracted parties are pushing back VERY strongly saying that there is virtually no way that the can or are willing to make the distinction.
The current (confusing) state of the working document is attached.
Which side should ALAC come down on?
- Restrict application to those to whom GDPR applies? - Apply universally ignoring residence?
As usual, quick replies requested.
Alan
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