- Gnso-epdp-team - lists.icann.org

Recommendation on privacy/proxy data.
by Alex Deacon Feb. 5, 2019

Feb. 5, 2019

All, Our review of ICANN's input on Temp Spec topics that were not covered by the Initial Report reminded me that we had at one point discussed ensuring that the current Temp Spec language on how Privacy/Proxy data should be handled (Appendix A 2.6) should added as a recommendation. Something along the lines of - Recommendation XX In the case of a domain name registration where a privacy/proxy service used (e.g. where data associated with a natural person is masked), Registrar MUST include in the public WHOIS and return in response to any query full WHOIS data, including the existing privacy/proxy pseudonymized email. There are two reasons why this is useful, IMO. First, given the time and effort needed to properly process "reasonable disclosure" requests by Registrars it seems useful to avoid a situation where non-public data is quickly found to be P/P service data. Avoiding this situation and simply including P/P data in the the initial response would make life better for all involved. Second, there is no need to redact information that is already "redacted" (by definition) by the P/P service. Also, given P/P services list the information of a legal person (in the case of a registrar affiliated service provider) in the place of the RNH's info it seems further redaction is unnecessary. Happy to discuss further on a future call. Thanks. Alex ___________ *Alex Deacon* Cole Valley Consulting alex(a)colevalleyconsulting.com +1.415.488.6009

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Re: [Gnso-epdp-team] [Ext] Re: For your review - latest version of EPDP Team Final Report
by Marika Konings Feb. 5, 2019

Feb. 5, 2019

Alan, this our mistake – we had understood your proposal to relate to the data element workbooks not the purpose statement itself, and as such this update was going to be included in the data element workbooks. In your message you state: Add to rationale: “To allow ICANN to carry out accuracy audits of registration contact data, ICANN may request from Registry Operators and Registrars the minimum data for randomly selected registrations. Under F-PA2 replace "ICANN org compliance" with "ICANN org" (2 places) Under F-PA4 replace "ICANN Compliance" with "ICANN org" and add to Lawful Basis "May go beyond the life of registration in order to complete accuracy audit and compliance processing, not to exceed one year." Data element table will need to include any contact information still in use post EPDP. Can you please clarify what you mean with ‘add to the rationale’ if it is not the explanation that is provided in the data element workbooks? Best regards, Caitlin, Berry and Marika From: Alan Greenberg <alan.greenberg(a)mcgill.ca> Date: Monday, February 4, 2019 at 16:33 To: Marika Konings <marika.konings(a)icann.org>, 'EPDP' <gnso-epdp-team(a)icann.org> Subject: [Ext] Re: [Gnso-epdp-team] For your review - latest version of EPDP Team Final Report I note that the language I proposed on the integration of the ARS into Purpose 6 is not included. When will we discuss this? Alan At 01/02/2019 06:10 PM, Marika Konings wrote: Dear EPDP Team, Please find attached for your review the latest version of the Final Report. In relation to section 5, EPDP Team Responses to Charter Questions & Recommendations, please note that those sections highlighted in green are considered finalized for inclusion in the Final Report, sections in blue are still under review / consideration (but these do include the latest language, unless indicated differently). For substantive issues or concerns, please flag these on the mailing list by Monday 4 March COB so that these can be included in the meeting agendas for next week. If you want to reference specific parts of the report, please use the line numbering of the attached pdf version. For any minor edits / updates, please use the google doc: https://docs.google.com/document/d/1sVZ9odV0qK1Bk8a4bDwWe5RW_PBzOnYBhHW_GnL… [docs.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_docume…> . On the wiki (see https://community.icann.org/x/VZwWBg) we have also posted a Word and clean version for those of you that prefer that format. As you review the Final Report, we want to remind you of Kurtâ€™s message that also seem to apply here: â€œstudy the balancing that went into this and be ready to accept wording in cases where it does not match your own choiceâ€. As a reminder, revisions to the data elements workbooks to ensure alignment with EPDP recommendations are being undertaken by a small team which is expected to share the results of its work shortly. Best regards, Caitlin, Berry and Marika Marika Konings Vice President, Policy Development Support – GNSO, Internet Corporration for Assigned Names and Numbers (ICANN) Email: marika.konings(a)icann.org<mailto:marika.konings@icann.org> Follow the GNSO via Twitter @ICANN_GNSO Find out more about the GNSO by taking our interactive courses<https://urldefense.proofpoint.com/v2/url?u=http-3A__learn.icann.org_courses…> and visiting the GNSO Newcomer pages<https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_sites_gn…>. Content-Type: application/pdf; name="EPDP Team Draft Final Report - REDLINE - version 1 February 2019.pdf" Content-Description: EPDP Team Draft Final Report - REDLINE - version 1 February 2019.pdf Content-Disposition: attachment; filename="EPDP Team Draft Final Report - REDLINE - version 1 February" 2019.pdf"; size=2997294; creation-date="Fri, 01 Feb 2019 23:10:12 GMT"; modification-date="Fri, 01 Feb 2019 23:10:13 GMT" Content-ID: <B9D117065EEB9B4695A1EFA5CBD4C29B(a)pexch112.icann.org> _______________________________________________ Gnso-epdp-team mailing list Gnso-epdp-team(a)icann.org https://mm.icann.org/mailman/listinfo/gnso-epdp-team

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Re: [Gnso-epdp-team] FW: Response from ICANN Compliance re. registrations under the 2009 RAA
by Alan Greenberg Feb. 5, 2019

Feb. 5, 2019

Another alternative is to say that the Admin contacts are not to be collected for new, changed or transferred registrations (which are all subject to the 2013 RAA requirement for Registrant contact data) and that the fields will be eliminated once all registrars confirm that all of the registrations under their sponsorship have Registrant contact information. Alan At 04/02/2019 05:14 PM, Alan Greenberg wrote: I do not believe that we can eliminate the Admin contact information (as currently recommended) without a concrete idea of how many registrations might be left without contact information and just a note that implementation should investigate the potential impact. If that investigation (if it is even possible given the data that ICANN possesses) we to show that there are a substantive number of such registrations, what could they do? We know that registrars have resisted the requirement to take corrective action on registration (which is why the validation/verification requirements in the 2013 RAA only apply when there are changes). If we eliminate Admin fields, we must provide for ensuring that all registrations have contact information within a relatively short period of time. The easy fix given the timeline is to not eliminate the Admin fields. Alan At 04/02/2019 08:19 AM, Marika Konings wrote: Dear Alan G., all, In relation to the question regarding the 2009 RAA you formulated a while back, note that ICANN Org had already provided a response: Alan Greenberg’s Question: The EPDP is requesting that ICANN Org confirm that all registrars are now operating under the 2013 RAA. The EPDP is requesting that ICANN Org provide its interpretation of the requirement under the RAA Data retention Specification 1.1 whether registrars, as part of their adoption of the 2013 RAA, are required to ensure that Registrant contact email and telephone fields are completed, or whether the phrase "shall maintain that information" (which was validly allowed to be blank at registration time) allows them to preserve any empty Registrant contact fields. If the former, is Contractual Compliance taking any action to ensure that registrars fulfill this obligation? ICANN org Compliance Response: Registrars are not required to collect additional contact information for 2009 Registrar Accreditation Agreement (RAA) registrations. However, registrars may be required to update existing contact information for 2009 RAA registrations when there is a triggering event under the 2013 RAA that may require them to do so (e.g., the domain name is an inbound transfer, the registrant changes, there is information to suggest the current contact information is incorrect). This response is also posted here: https://community.icann.org/x/ahppBQ. Please let us know if this does not sufficiently address your question. In order to ensure this issue is not overlooked during the implementation phase, would it be helpful to add a sentence along the following lines in the implementation part of the report: “As part of the implementation, consideration needs to be given to the potential impact of these policy recommendations on legacy registrations that without additional mitigation could end up with no contact information if the administrative contact is the only information currently available (this could be the case for a limited number of registrations that are still under the 2009 Registrar Accreditation Agreement)”? Best regards, Caitlin, Berry and Marika Marika Konings Vice President, Policy Development Support � GNSO, Internet Corporation for Assigned Namees and Numbers (ICANN) Email: marika.konings(a)icann.org<mailto:marika.konings@icann.org> Follow the GNSO via Twitter @ICANN_GNSO Find out more about the GNSO by taking our interactive courses<https://urldefense.proofpoint.com/v2/url?u=http-3A__learn.icann.org_courses…> and visiting the GNSO Newcomer pages<https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_sites_gn…>. _______________________________________________ Gnso-epdp-team mailing list Gnso-epdp-team(a)icann.org https://mm.icann.org/mailman/listinfo/gnso-epdp-team

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FW: Response from ICANN Compliance re. registrations under the 2009 RAA
by Marika Konings Feb. 4, 2019

Feb. 4, 2019

Dear Alan G., all, In relation to the question regarding the 2009 RAA you formulated a while back, note that ICANN Org had already provided a response: Alan Greenberg’s Question: The EPDP is requesting that ICANN Org confirm that all registrars are now operating under the 2013 RAA. The EPDP is requesting that ICANN Org provide its interpretation of the requirement under the RAA Data retention Specification 1.1 whether registrars, as part of their adoption of the 2013 RAA, are required to ensure that Registrant contact email and telephone fields are completed, or whether the phrase "shall maintain that information" (which was validly allowed to be blank at registration time) allows them to preserve any empty Registrant contact fields. If the former, is Contractual Compliance taking any action to ensure that registrars fulfill this obligation? ICANN org Compliance Response: Registrars are not required to collect additional contact information for 2009 Registrar Accreditation Agreement (RAA) registrations. However, registrars may be required to update existing contact information for 2009 RAA registrations when there is a triggering event under the 2013 RAA that may require them to do so (e.g., the domain name is an inbound transfer, the registrant changes, there is information to suggest the current contact information is incorrect). This response is also posted here: https://community.icann.org/x/ahppBQ. Please let us know if this does not sufficiently address your question. In order to ensure this issue is not overlooked during the implementation phase, would it be helpful to add a sentence along the following lines in the implementation part of the report: “As part of the implementation, consideration needs to be given to the potential impact of these policy recommendations on legacy registrations that without additional mitigation could end up with no contact information if the administrative contact is the only information currently available (this could be the case for a limited number of registrations that are still under the 2009 Registrar Accreditation Agreement)”? Best regards, Caitlin, Berry and Marika Marika Konings Vice President, Policy Development Support – GNSO, Internet Corporation for Assigned Names and Numbers (ICANN) Email: marika.konings(a)icann.org<mailto:marika.konings@icann.org> Follow the GNSO via Twitter @ICANN_GNSO Find out more about the GNSO by taking our interactive courses<https://urldefense.proofpoint.com/v2/url?u=http-3A__learn.icann.org_courses…> and visiting the GNSO Newcomer pages<https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_sites_gn…>.

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Proposed agenda - EPDP Team Meeting #42
by Marika Konings Feb. 4, 2019

Feb. 4, 2019

Dear EPDP Team, Please find below the proposed agenda for the next EPDP Team meeting which is scheduled for Tuesday 5 February at 14.00 UTC. Please take note of the following action items in relation to the agenda: * Registry and Registrar EPDP Team Members to review implementation bridge options with respective stakeholder groups and come forward with a proposal for the next EPDP Team meeting on Tuesday, 5 February * EPDP Team to review additional ICANN org questions and indicate on the email list if any of these need to be addressed in the Final Report * Groups to flag any issues or concerns that require further discussion following review of the draft Final Report by Monday 4 February COB Best regards, Caitlin, Berry and Marika ================== EPDP Meeting #42 Agenda Tuesday, 5 February 2019 1. Roll Call & SOI Updates (5 minutes) 1. Welcome and Updates from EPDP Team Chair (5 minutes) * Reminder: process for Final Report input & Consensus Call * Review of outstanding action items * Other updates, if applicable 1. Implementation Transition Period (30 minutes) * Per last week’s action item: “Registry and Registrar EPDP Team Members to review implementation bridge options with respective stakeholder groups and come forward with a proposal for the next EPDP Team meeting on Tuesday, 5 February” * CPs to present proposal * Discuss proposal * Confirmation of agreement reached or next steps to come to agreement 1. Data Elements Workbooks Small Team Update * Update on status of work * Questions / clarifications * Expected next steps 1. Items flagged for further discussion * Privacy / Proxy registrations – see mailing list proposal and discussion * Reasonable access * Other topics to be added, as needed 1. ICANN Org Questions * Per last week’s action item, EPDP Team to review additional ICANN org questions and indicate on the email list if any of these need to be addressed in the Final Report * Consider topics flagged * Discuss proposed approach (‘what happens if these topics are not addressed / covered in the Final Report?’) * Confirmation of agreement reached or next steps to come to agreement 1. Wrap and confirm next meeting to be scheduled for Wednesday, 6 February 2019 at 14.00 UTC (5 minutes) * Confirm action items * Confirm questions for ICANN Org, if any Marika Konings Vice President, Policy Development Support – GNSO, Internet Corporation for Assigned Names and Numbers (ICANN) Email: marika.konings(a)icann.org<mailto:marika.konings@icann.org> Follow the GNSO via Twitter @ICANN_GNSO Find out more about the GNSO by taking our interactive courses<https://urldefense.proofpoint.com/v2/url?u=http-3A__learn.icann.org_courses…> and visiting the GNSO Newcomer pages<https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_sites_gn…>.

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**Reminder** Meeting Invitation: Alternates & Observers / GNSO Temp Spec gTLD RD EPDP call / Tuesday, 05 February 2019 at 14:00 UTC for 3 hours
by Julie Bisland Feb. 4, 2019

Feb. 4, 2019

Dear all, Non-members can follow the EPDP call taking place on Tuesdays and Thursdays via the audio cast or view only Adobe Connect room. As requested and discussed on Tuesday's (14 August 2018) meeting, please note that an additional Adobe Connect room has been created for use by interested alternates and observers to be able to view-only the main EPDP Team Adobe Connect room. The view-only room will also broadcast the audio of the EPDP Team AC room, however, those in the view-only room will not be heard. Note that the audio cast stream will also remain available for now for those that prefer to use that option to listen live to the EPDP Team meeting. View-Only Adobe Connect room for alternates and observers: https://participate.icann.org/gnso-epdp-observers Meeting Audio Cast (for alternates and observers) To join the event, click on the link: Listen in browser: http://stream.icann.org:8000/stream01 [stream.icann.org]<https://urldefense.proofpoint.com/v2/url?u=http-3A__stream.icann.org-3A8000…> Listen in application such as iTunes: http://stream.icann.org:8000/stream01.m3u [stream.icann.org]<https://urldefense.proofpoint.com/v2/url?u=http-3A__stream.icann.org-3A8000…> Agenda wiki page: https://community.icann.org/x/RJ0WBg Thank you. Kind Regards, Andrea

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Notes and action items from EPDP Team Meeting #41
by Caitlin Tubergen Feb. 2, 2019

Feb. 2, 2019

Dear EPDP Team, Below, please find the notes and action items from the last EPDP meeting on Thursday, 31 January 2019. Best regards, Marika, Berry, and Caitlin --- EPDP Team Meeting #41 31 January 2019 Action Item #1: EPDP Leadership to propose updated language for Rec. 11 (data retention) based on the discussion from today’s meeting. Action Item #2: Registry and Registrar EPDP Team Members to review implementation bridge options with respective stakeholder groups and come forward with a proposal for the next EPDP Team meeting on Tuesday, 5 February. Action Item #3: EPDP Team to review additional ICANN org questions and indicate on the email list if any of these need to be addressed in the Final Report Notes 1. Roll Call & SOI Updates (5 minutes) 2. Welcome and Updates from EPDP Team Chair (5 minutes) Today's meeting will mark the end of public comment review Between today and tomorrow, the Leadership Team will review proposed edits to the draft recommendations and come back with proposed language for inclusion in Final Report. The Support Team will send an updated draft of the Final Report to the EPDP Team tomorrow, Friday, 1 Feb. Following receipt of the proposed language, EPDP Team Members should flag any issues they believe warrant further discussion. There will be meetings on Tuesday, Wednesday, and Thursday of next week. In terms of getting the Final Report out - we plan to distribute the next draft tomorrow, Friday, 1 Feb. Leadership will also send out the consensus call paperwork early next week. There is a status of review document on the wiki page. The next step is for leadership to look at comments received and propose a path forward. Support Team is planning to update the Final Report based on suggested edits as well as agreed-upon text. EPDP Team Feedback: The recommendations should be voted as a package - they should not be voted on in isolation. Crystal clear recommendations are a good goal, but in the process of consensus building, this may be impossible. There needs to be sufficient time to review a final draft so that everyone can see what the report says. a. Reminder: process for email discussions and upcoming deadlines b. Review of outstanding action items c. Other updates, if applicable 3. Continue review of public comments on Initial Report and/or revised recommendations a. Recommendation 11 – Data retention (20 minutes) i. Review small team updates and input provided (see PCRT at https://community.icann.org/x/U4cWBg and small team recommendations). ii. Review input provided (RySG, RrSG, GAC) (5 minutes) Confirmation of agreement reached or next steps to come to agreement (5 minutes) Edits came from Ry/Rr public comments Paragraph 1: One year retention period linked to the TDRP was originally recommended - if it is being retained for purposes of the TDRP, any data retained could only be used for the TDRP. Paragraph 2: The EPDP Team did identify the TDRP as a means to justify the retention period. Registrars, if they use retained data for something under the TDRP, it would be under their own controllership. Paragraph 3: in the absence of having text in the actual recommendation - it should not be construed to mean that contracted parties cannot set their own retention periods for their own purposes. The current waiver procedure must be maintained. Consider a fast track for waivers accepted, that parties within the same jx would be subject to the same waiver without having to apply separately. Waiver procedures do not need to be applied to this recommendation. We may need a general disclaimer that notes that local laws have precedence. It seems that public comments from non-CPH have not been factored into the text of the updated recommendation. Should additional time be considered - public comments note 3 - 6 years. The language here is too restrictive - there may be other uses beyond the Transfer Policy. To make a case to retain the data past one year - does the benefit of investigating something that happened on a name that's not under the registrant's control outweigh the risk to the data subject? Saying data might be necessary at some point in the future is not a good enough reason to retain it The Team could consider remaining open to requests to change the retention period based on certain requirements. Retention periods under one year are highly problematic for investigations. How proportional is it to save data and for how long. The argument has been made to retain data longer. A balance is important here - what worked in the past may not work going forward, and we need to recognize new limitations and adjust accordingly. The EPDP Team, as soon as practicable, recommends ICANN to undertake a review of all active process and procedures - including other lawful needs. Not comfortable with ICANN conducting a study to determine retention for other needs. It’s likely this study would be biased. It's not just about the retention period but also who would have access to the data - this would be part of the study. We need to remember what we are doing here - do any public comments received warrant a change to the language. At this point, there does not appear to be comments that warrant change to the language. With respect to longer retention periods - no one would come up with a robust rationale as to why we need a longer period - therefore, we should keep what we have. Action Item: EPDP Leadership to propose updated language for Rec. 11 based on today's conversation. 4. Implementation Transition Period (30 minutes) The GNSO Council Leadership has requested the team further discuss next steps regarding implementation transition period and notes it may be helpful to include a recommendation in the Final Report. This item was discussed in Toronto, and the Team discussed the bridging of a policy that will be adopted in the interim. The gap is the time b/w when the Temp Spec expires and the new policy goes into effect. The CPH have mixed feelings - could there be a compliance framework MOU with ICANN org, i.e., as long as CPH as doing their best efforts to comply with the new policy. Others are asking for something more formal. The Council Leadership is requesting a recommendation to come from the community, rather than ICANN org. There is not a consensus position within the RySG among the possible avenues forward. It may be more productive to defer this topic until next Tuesday. A framework should have input beyond the contracted parties. However, it would be problematic if there was zero enforcement of the Temp Spec. The general sentiment re: this gap is that the decision should rest with the EPDP Team. Would this compliance framework be enforceable? To the question of timing - if the Team is planning to issue a recommendation of a compliance framework, that could be considered in parallel with finalization of the Final Report. The risk of having something more formal - this could be challenged by a given contracted party as an extension of the Temp Spec - and this may open the door to challenging the Temp Spec was implemented as an SSR emergency. Important to get some guidance from ICANN org on their preferred path forward. Need to think through timelines - this should be fleshed out with some degree of specificity by Tuesday. We need to think about providing a solution in a timely manner. Contracted parties should get support around a model and begin fleshing it out. Action item: CPH to Put formal question in front of stakeholder group and come forward with a proposal for Tuesday's meeting. 5. ICANN Org Questions There are six questions posed by ICANN within this table. Read the first three questions in five minutes. a. ICANN Org Liaisons to introduce questions for discussion 1. RDAP and SLAs – what recommendations and/or guidance needs to be included in the Final Report, or is this to be addressed during implementation? This work comes from a spreadsheet emailed to the EPDP Team. The spreadsheet sought to identify changes from the Temp Spec and also areas where the Initial Report was silent. Is there a good reason why the language was not included in the Initial Report? What will happen to RDAP is the EPDP TEam is silent on this? If there are additional items that need to be discussed, please flag them so we can add to the agendas next week. Question: if the Team is silent, is this to be confirmed as policy, or not? If the Temp Spec does not confirm, requirements from RA/RAA would control. If the Team did not confirm the Temp Spec to be approved as policy, it would not be retained as policy. The difference b/w the Temp Spec and what the EPDP Team is doing is the the EPDP Team is creating a new policy, while the Temp Spec is part of the contracts until May 25. There is no need to include any of these items in the Team's Phase 1 report. RDAP has not been implemented, and this is not necessary for GDPR compliance. What problem would be solved by putting this language in the Final Report? There should be an RDAP mention in the policy, otherwise there is no obligation. The Team's work to make its processes GDPR compliant - we will not include in Phase 1 of its work. The Support Team can consider adding proposed language in the Final Report. Action Item: EPDP Team to review additional ICANN org questions and indicate on the list if any of these need to be addressed in the Final Report On notices to RNH - this is changing specific requirements in the RAA - adds elements that conform to GDPR requirements. Consent provision - language has restrictions on consent based on GDPR Bulk registrations - Temp Spec requires only thin data 2. RDDS Search Capabilities - should the requirements in the Temp Spec be confirmed by the EPDP Team in the Final Report or is this to be further considered in phase 2? 3. Bulk data registration access to ICANN – should the requirements in the Temp Spec be confirmed by the EPDP Team in the Final Report? 4. Process for amendments to Registry – Registrar agreements – should the process in the Temp Spec be confirmed as a policy recommendation, or is this to be addressed during implementation? 5. Does the ‘consent’ provision in the Temporary Specification require confirmation in the Final Report or is this to be addressed during implementation as consent is already defined in the GDPR? 6. Notices to Registered Name Holders Regarding Data Processing - is this required to be addressed in the Final Report or is this part of implementation or in direct consultation with registrars? b. Confirmation of agreement reached or next steps to come to agreement 6. Wrap and confirm next meeting to be scheduled for Tuesday, 5 February 2019 at 14.00 UTC (5 minutes) Confirm action items Confirm questions for ICANN Org, if any

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Responses to legal questions
by Kurt Pritz Feb. 1, 2019

Feb. 1, 2019

Dear EPDP Team: I am writing to notify you that outside legal counsel has responded to three questions from the EPDP Legal Team. The Legal Team has reviewed the responses. Rather than include a Legal Team opinion regarding the effect of the responses on our discussion, the Team decided to simply provide the answers (in summary form and in formal memo) that Bird&Bird provided to us. Below, please find the: EPDP Team questions posed to Bird&Bird, and Informal summary of the answers provided by Bird& Bird. The full legal memoranda can be found on the wiki page. <https://community.icann.org/display/EOTSFGRD/Meetings+Legal+Committee+Frame…> (https://community.icann.org/display/EOTSFGRD/Meetings+Legal+Committee+Frame…) Please respond with questions you might have to this list. Best regards, Kurt Legal vs. Natural Q: The EPDP Team discussed Charter Question h3, namely, should Contracted Parties be allowed or required to treat legal and natural persons differently, and what mechanism is needed to ensure reliable determination of status? In determining the answer to this question, the EPDP Team sought the guidance of external legal counsel, inquiring specifically, “If a registrar permits a registrant, at the time of domain name registration, to self-identify as a natural or legal person, does a registrant’s incorrect self-identification that results in the public display of personal data create liability under GDPR? If so, please advise, for each possible participant in the domain name registration process listed below, if that participant incurs liability.” External legal counsel provided the following summary answer. A: “We conclude that the relevant parties could be subject to liability if a registrant wrongly self-identifies as a legal person (and not a natural person) and the registrant's data is disclosed in reliance on this self-identification. To reduce the risks, we propose several solutions, such as focus group testing of the registration process to minimise the risk of errors and technical tools (if feasible) to verify the information provided. We also recommend providing clear notice to data subjects of the consequences for them of the designation as either a legal or a natural person as well as a way for data subjects to easily correct a mistaken classification. One way to do this effectively would be to send a follow-up email after registration to the listed contacts – this could also help with the notice issue addressed in question 1 [Technical Contact]. Technical Contact Q: The EPDP Team also took note of a related footnote [from the EDPB] which states, “[if contact details for persons other than the RNH are provided] it should be ensured that the individual concerned is informed”. The EPDP Team discussed whether this note implies that it is sufficient for the Registered Name Holder (RNH) to inform the individual it has designated as the technical contact, or whether the registrar may have the additional legal obligations to obtain consent. The EPDP Team requested external legal counsel guidance on this topic who provided the following summary answer: A: “In cases where the RNH and the technical contact are not the same person, relying on the RNH to provide notice on the registrar's behalf will not meet GDPR's notice requirements if the RNH fails to provide the notice. While this may provide grounds for a contractual claim against the RNH, it is unlikely to provide a viable defence under the GDPR. Moreover, this arrangement will make it difficult for registrars to demonstrate that notice has been provided. If notice is not effectively provided, this could affect the legitimate interests analysis, since technical contacts may not "reasonably expect" the manner in which their data will be processed. If relying on consent, such an arrangement would make it difficult to document that consent has been provided” . Article 6(1)(b) Q: The EPDP Team asked two questions about the application of Article 6(1)b to external legal counsel: Does the reference 'to which the data subject is party' limit the use of this lawful basis only to those entities that have a direct contractual relationship with the Registered Name Holder? Does "necessary for the performance of a contract" relate solely to the registration and activation of a domain, or, alternatively, could related activities such as fighting DNS abuse also be considered necessary for the performance of a contract? External legal counsel provided the following summary answers: A: “a) it is not clear if the contractual necessity condition can only apply where there is a contract between data controller and data subject, or whether the contract could be between another person and the data subject. (For example, so that ICANN or a registry could argue that their processing is necessary for the contract between the registrar and the RNH/data subject). In countries where we have checked, there are no cases on point. Some data protection authorities interpret the provision narrowly. However, there is also guidance arguing for a more liberal approach. We think a more liberal approach is correct – but this is untested. b) What is 'necessary' is interpreted strictly. We do not think that the EPDP could successfully argue that preventing DNS abuses is 'necessary' for the contract with the RNH. There is guidance from the Article 29 Working Party on this which has examples somewhat similar to ICANN's situation”.

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Re: [Gnso-epdp-team] RrSG Comment on Recommendation 10
by Alan Greenberg Feb. 1, 2019

Feb. 1, 2019

Milton, you say that "Compliance can check the full Whois record". That is certainly not the case now, nor is it assured that it will be the case going forward. Right now they must ask for specific fields and Purpose 5 says "If a contractual compliance complaint is filed, the complainant provides certain information regarding the issue, which may contain personal data. Depending on the nature of the issue, ICANN Compliance may ask the Registrar or Registry Operator for the minimum data needed to investigate the complaint. Compliance may also look at the public WHOIS to supplement its review or processing." If we follow that, then Compliance must depend on the good faith of the registrar and that is problematic. Are you prepared to alter Purpose 5 to make it clear that Compliance has unfettered access to the actual entire WHOIS record? Alan At 01/02/2019 11:36 AM, Mueller, Milton L wrote: Maybe I do not understand what you are saying, AlanG, but your statement below seems mistaken. Party X sends some kind of a request which is supposed to be relayed to a RNH. The registrar forwards it and assign it a number, as AlanW suggests below. Party X gets no response and becomes concerned. They ask ICANN compliance to look into the accuracy of the Whois record. Compliance can check the full Whois record. Further, the concern about “requests not being relayed” is very different from “requests being relayed to a non-viable contact address.” The former is a registrar failure (and I am not sure WHY exactly a registrar would fail to forward a request), the latter is an accuracy problem for which the RNH is responsible. Seems to me these more complicated procedures for tracking email delivery and responses are simply a way for certain private parties to offload the costs of their monitoring and enforcement activities onto Registrars (and indirectly, RNHs). We oppose that. --MM From: Gnso-epdp-team [ mailto:gnso-epdp-team-bounces@icann.org] On Behalf Of Alan Greenberg Sent: Friday, February 1, 2019 10:10 AM To: Alan Woods <alan(a)donuts.email>; Greg Aaron <greg(a)illumintel.com> Cc: GNSO EPDP <gnso-epdp-team(a)icann.org> Subject: Re: [Gnso-epdp-team] RrSG Comment on Recommendation 10 Alan, "Should ICANN compliance wish to test the fidelity of the system, that is in their purview to do so to ensure the mechanics of the system." does not give compliance the ability to address complaints that messages are seemingly not being relayed (or are being relayed to a non-viable contact address). Alan At 01/02/2019 05:34 AM, Alan Woods wrote: Thank you Greg and our SSAC colleagues for this, However, with my privacy lawyer hat on, can we actually remind ourselves here of the goal. The Goal here is to simply confirm that the registrar has relayed the requestors communication. The suggestion from our SSAC colleagues, has the Registrar, not only maintaining this log, but creating a database of requestor data, email addresses, metadata, and, for good measure, a positive obligation to further monitor responses from those emails sent, so as to initiate an action which may result in a suspension of a domain name. Outside of the fact that a system of this size is likely complex and cost prohibitive to smaller registrars, it ignores necessity and data minimization and alas fails the privacy by default and privacy by design tests. I'm sure that the very clever folks at the registrars can come up with a much simpler and functional system along the lines of: A communication request received is assigned a number e.g. #X The number is provided to the requester (for their own reference) but the registrars have no need to maintain a record of which requester is assigned which number, just that request #X is made, and the system has confirmed its relay of the message associated with #X. Should ICANN compliance wish to test the fidelity of the system, that is in their purview to do so to ensure the mechanics of the system. None of the other data or actions are remotely necessary. I would also suggest that we give the registrars a bone here and state that nothing in our recommendation language should prevent the registrar from taking appropriate actions to prevent excessive use or abuse of the registrant contact process. Now to display how number 4 may be achieved, but also noting that this is not within ICANN's controllership and therefore outside of the ICANN policy reach: 4a. A Registrar may, at their own discretion, keeps a sufficiently anonymized log of requests (whereby the system pseudonymizes of somehow anonymizes personal data of the requester but is capable of logging where requestor (let's call him Y) has made 30000 requests #X ,#Z etc. This can then be used to perhaps filter such future requests from that requestor. To confirm this would be solely at the option of the regsitrar, abased on their own needs, size, resources etc. The registrar would be controller here, and ICANN base policy cannot dictate this. This would indeed be a prudent step for a larger registrar to prevent abuse of the relay system, and to avoid allegation that they are 'spamming' their registrants. To that end. I think Sarah's' proposed wording with Kristina's addition (and perhaps the clarification contained in 4 above) is still wholly sufficient for the goal and purpose pursued. Kind regards, Alan Alan Woods Senior Compliance & Policy Manager, Donuts Inc. ________________________________ The Victorians, 15-18 Earlsfort Terrace Dublin 2, County Dublin Ireland <https://twitter.com/DonutsInc> <https://www.linkedin.com/company/donuts-inc> Please NOTE: This electronic message, including any attachments, may include privileged, confidential and/or inside information owned by Donuts Inc. . Any distribution or use of this communication by anyone other than the intended recipient(s) is strictly prohibited and may be unlawful. If you are not the intended recipient, please notify the sender by replying to this message and then delete it from your system. Thank you. On Thu, Jan 31, 2019 at 11:25 PM Greg Aaron <greg(a)illumintel.com<mailto:greg@illumintel.com>> wrote: The SSAC team proposes a revised version of #2. A goal is to make measurement and compliance activity around this contractual requirement possible. The Temp Spec doesn't offer that, and the existing proposals don't yet either. The RrSG proposal says that no personal data about the activity will retained, and log format or content are not specified. If so, how will a registrar demonstrate that a message from any requestor was sent to the registrant? The below makes clear that the records about forwarding are for examination by ICANN Compliance (only). If someone who originated a message is concerned, they can make a complaint to ICANN. That is the same model that we have now for invalid WHOIS and abuse reporting complaints. We also assume that such records will be retained for only an appropriate term. Part of the recommendation below is based on an existing procedure in the RAA. so it is familiar. It creates no new personal data transfer, and there is already a â��Pâ��urpose defined for cor contracted parties to send personal data to Compliance. It does not require the registrar to keep the entire email message if they do not want to. Proposed text: "2) The EPDP Team recommends that Registrars must maintain records that demonstrate that the communication from the requestor was relayed by email to the Registered Name Holder. This information must include the requestor's identity as it was provided to the Registrar, the Registered Name Holder's email address, and a timestamp. Such records will be available to ICANN for compliance purposes, upon request. If Registrar receives a bounced email notification or non-delivery notification message, the Registrar must initiate re-verification of the registrant's contact data per the RAA's WHOIS Accuracy Program Specification, paragraph 4." From: Gnso-epdp-team < gnso-epdp-team-bounces(a)icann.org<mailto:gnso-epdp-team-bounces@icann.org>> On Behalf Of Sarah Wyld Sent: Friday, January 25, 2019 4:14 PM To: gnso-epdp-team(a)icann.org<mailto:gnso-epdp-team@icann.org> Subject: [Gnso-epdp-team] RrSG Comment on Recommendation 10 Hello All, For Recommendation 10, the RrSG has the following proposed new text: 1) In relation to facilitating email communication between third parties and the Registered Name Holder, the EPDP Team recommends that current requirements in the Temporary Specification that specify that a Registrar MUST provide an email address or a web form to facilitate email communication with the relevant contact, but MUST NOT identify the contact email address or the contact itself, remain in place. 2) The EPDP Team recommends Registrars MUST maintain Log Files, which shall not contain any Personal Information, and which shall contain confirmation that a relay of the communication between the requestor and the Registered Name Holder has occurred, not including the origin, recipient, or content of the message. The registrar cannot be reasonably expected to confirm, or attempt to confirm by any means, the receipt of any such relayed communication. 3) DELETE 3 -- Sarah Wyld Domains Product Team Tucows +1.416 535 0123 Ext. 1392 _______________________________________________ Gnso-epdp-team mailing list Gnso-epdp-team(a)icann.org<mailto:Gnso-epdp-team@icann.org> https://mm.icann.org/mailman/listinfo/gnso-epdp-team _______________________________________________ Gnso-epdp-team mailing list Gnso-epdp-team(a)icann.org<mailto:Gnso-epdp-team@icann.org> https://mm.icann.org/mailman/listinfo/gnso-epdp-team

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Re: [Gnso-epdp-team] Recommendation on privacy/proxy data.
by Alan Greenberg Feb. 1, 2019

Feb. 1, 2019

Alan, it is correct that the contents of a reply could contain identifiable information then the same is true for a web form. Are you saying that therefore there is NO possible way to allow contact? At some point, registrants need to take responsibility for what they do. Alan At 01/02/2019 07:46 AM, Alan Woods wrote: Thank you Alex for reopening this matter. >From a practicality POV the inclusion of a pseudonymised email in a publication is a disclosure of public data, as a pseudonymised email, is still an email for a data subject. It may be in a form the data subject does not recognize, but I believe a number of excellent and practical examples, such as auto-relay / auto out of office responses could easily identify the non-pseudonymised email and lead to identification of the Data Subject. I refer you recital 26 of the GDPR: "…Personal data which have unddergone pseudonymisation, which could be attributed to a natural person by the use of additional information should be considered to be information on an identifiable natural person..." Alas the recommendation as worded, although I understand the practicality that is driving it, does not properly address data protection concerns. There is a lot of back and of forth possible on whether pseudonymisation may count as anonymization when published to a 3rd party, however in the context of Domain Names, where the domain name, and even the associated content, could be capable of linking the individual to the pseudonymised data (which is completely outside of outside of our control, but still relevant to our risk assessment), we need to tread carefully; more carefully than the ePDP has either the time or the scope to consider. To refer again to our goal : We must look to the state of the data that is in the RDDS currently, and whether the publication of individual data currently used would be data protection compliant or not. In its current state, with the myriad the uncertainties, it is not, therefore our recommendation must be not to publish. SOLUTION Allow the registrar / registry to consider (as Controller) the feasibility and the risk as it applies to them? Unless we, at this late stage, the ePDP can provide an actual means or suggestion as to implementation of how a registrar / registry can effectively figure out who is a P&P provider and thus publish those only details without an increase to risk, then our choice is plain. If the recommendation is to stand, use of MAY, and other permissive language, as opposed to a 'must' will allow each CP to assess the risk as they see it, as it all comes down to the fact that the ePDP cannot force the CPs to assume higher risk to appease some. Recommendation XX In the case of a domain name registration where a privacy/proxy service used (e.g. where data associated with a natural person is masked), Registrar (and Registry where applicable) MAY include in the public WHOIS and return in response to any query full WHOIS data, which may also include the existing privacy/proxy pseudonymized email. Kind regards, Alan Alan Woods Senior Compliance & Policy Manager, Donuts Inc. ________________________________ The Victorians, 15-18 Earlsfort Terrace Dublin 2, County Dublin Ireland <https://twitter.com/DonutsInc> <https://www.linkedin.com/company/donuts-inc> Please NOTE: This electronic message, including any attachments, may include privileged, confidential and/or inside information owned by Donuts Inc. . Any distribution or use of this communication by anyone other than the intended recipient(s) is strictly prohibited and may be unlawful. If you are not the intended recipient, please notify the sender by replying to this message and then delete it from your system. Thank you. On Fri, Feb 1, 2019 at 12:57 AM Alex Deacon < alex(a)colevalleyconsulting.com<mailto:alex@colevalleyconsulting.com>> wrote: All, Our review of ICANN's input on Temp Spec topics that were not covered by the Initial Report reminded me that we had at one point discussed ensuring that the current Temp Spec language on how Privacy/Proxy data should be handled (Appendix A 2.6) should added as a recommendation. Something along the lines of - Recommendation XX In the case of a domain name registration where a privacy/proxy service used (e.g. where data associated with a natural person is masked), Registrar MUST include in the public WHOIS and return in response to any query full WHOIS data, including the existing privacy/proxy pseudonymized email. There are two reasons why this is useful, IMO. First, given the time and effort needed to properly process "reasonable disclosure" requests by Registrars it seems useful to avoid a situation where non-public data is quickly found to be P/P service data. Avoiding this situation and simply including P/P data in the the initial response would make life better for all involved. Second, there is no need to redact information that is already "redacted" (by definition) by the P/P service. Also, given P/P services list the information of a legal person (in the case of a registrar affiliated service provider) in the place of the RNH's info it seems further redaction is unnecessary. Happy to discuss further on a future call. Thanks. Alex ___________ Alex Deacon Cole Valley Consulting alex(a)colevalleyconsulting.com<mailto:alex@colevalleyconsulting.com> +1.415.488.6009 _______________________________________________ Gnso-epdp-team mailing list Gnso-epdp-team(a)icann.org<mailto:Gnso-epdp-team@icann.org> https://mm.icann.org/mailman/listinfo/gnso-epdp-team _______________________________________________ Gnso-epdp-team mailing list Gnso-epdp-team(a)icann.org https://mm.icann.org/mailman/listinfo/gnso-epdp-team

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