Michael -

Respectfully, and without taking a position on whether these questions are relevant or timely, I think the questions need to be more nuanced to produce useful answers.

Does ICANN have a legitimate and proportionate interest in accessing individual registration records in response to credible complaints that the data is inaccurate? If so, is a DPA required to access data in such situations? What happens if the registrar receiving the access request disagrees with ICANN's application of the balancing test, i.e., does ICANN have the contractual authority to enforce its access request?
Does ICANN have a legitimate and proportionate interest in proactively acquiring bulk access to registrant data to undertake an accuracy audit, even with respect to data for which it has no basis to question its accuracy? If so, is a DPA necessary to do so? What happens if the registrar receiving the access request disagrees with ICANN's application of the balancing test, i.e., does ICANN have the contractual authority to enforce its access request?

It is important to keep in mind that a legitimate interest is necessary but not sufficient under GDPR. The processing necessary to satisfy a legitimate interest must be proportionate, i.e., not outweighed by the privacy rights of the individual data subject(s). As a result, the two situations (access to a single record based on reasonable grounds to believe the data is inaccurate v. proactive access without individualized suspicion) are quite different from a data protection perspective, with the first being far less complicated to defend. In addition, a CP's contractual obligations, e.g., under the RAA, may be different in those situations.

FWIW, I think the DPA issue is a bit of a red herring here. Presumably, ICANN's requests for one-off data can be handled in the same way that anyone else's access request is handled, e.g., if the data is to be transferred outside of the EU by imposing controller to controller Standard Contractual Clauses as the terms and conditions of such access on a case-by-case basis. If the EDPB were to confirm that ICANN's bulk access to data for proactive checking was legitimate and proportionate, it's clear to me that a narrowly focused DPA between ICANN and CPs applicable to data access for the specific purpose of checking accuracy (e.g., prohibiting onward transfer, etc.) could be crafted. The real question is whether (i) the temp spec /epdp phase 1 policy obligating CPs to provide reasonable access for legitimate and proportionate purposes encompasses bulk access or (ii) some other provision of the agreements produces an obligation to provide bulk access.

Apologies for being pedantic here. None of us can say with any certainty what GDPR does or does not permit as that determination is ultimately made by individual data protection authorities and/or the EDPB. We are asking ICANN for its views on what GDPR would permit in specific circumstances, so the relevant circumstances should be articulated precisely to produce useful answers.

On Thu, Feb 24, 2022 at 5:12 PM Michael Palage <michael@palage.com> wrote:

Hello Everyone,

Over the past couple of weeks there has been a recurring theme in our calls and in some of the side discussions that I have had with some members regarding about how the potential lack of a Data Processing Agreement between ICANN Org and the Contracting Parties might negatively impact our future work and/or recommendations.

Therefore I would like to propose to the group for their consideration the following additional questions that we may want to propose to ICANN Org as we continue our work:

• “Is ICANN able to access registration data under the GDPR on the basis that it has a legitimate interest in checking the accuracy of the data? Has ICANN ever received or plans to receive legal advice on this particular topic?

• Does ICANN believe that the Data Protection Agreement between itself and the Contracted Parties is a necessary legal requirement for requesting and receiving this data, and if so for what legal reason?"

As always I welcome any thoughts and or considerations?

Best regards,

Michael

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