Thank you Margie for this comprehensive review.

I have 3 notes.

1) Regarding the ICO statement: "So if you are using the data to make decisions that may significantly affect the individual concerned or others, you need to put more effort into ensuring accuracy." To be clear the 'you' here is relating to the controller's use of the data and whether that use, by the controller, in the processing of inaccurate data, has a significant impact on the rights of the data subject, or 'others'. The USE of this data by the controller is the registration of a domain or the application of our T&Cs; this is not referring to the use by a 3rd party (be that the registrant or indeed from your POV, Facebook). So from the Controller's POV, all registration data is tested and the registrant is indeed required to confirm that data (WHOIS Accuracy Specifications). This seems very reasonable, given the data collected and the use to which it is put. Are you expecting the controller to second guess, not 1 but 2 (collection and confirmation process) approvals of the data subject, when the objective is to ensure that the registrant is contactable, in the event of query on the domain. Furthermore, there is a secondary system of accuracy testing, insofar as where WHOIS data is found to be inaccurate, a complaints process does exist, and let's not forget that the consequence for the registrant for not updating their data, is the suspension of their domain. (Which, as Stephanie Perrin has rightly reminded us, is a pretty severe and hefty consequence for the data subject on a very tight turnaround)

"Other" interests : Beyond this, the impact of inaccurate registration data in the USE by the controller, i.e. the registration of the domain, to your interests as an 'other', if I may surmise, only goes so far as to your ability to seek redress for matter you perceive to be IP infringement in the domain name itself. Continued inaccuracy of the registrant data (if any remains) does not however affect the availability of the RPMs which do not require the registration data to be accurate, as under the temp spec, even doe claims are now valid. In addition should you choose to go the court route, obtaining service, substituted or otherwise, should be a simple matter for any lawyer. I fail to see the how the 'use', therefore is objectively prejudicing you, or how more watertight accuracy would make any substantial difference on the avenues already available. I must say it seems pretty unnecessary, and likely unreasonable, given the use to which the data is put!

So my point is I fail to see how the use of the data, by the controller, is substantially prejudicing the interests for which the BCs stand. Accuracy in this context, and the safeguards inbuilt are objectively reasonable given the nature of the data and the avenues of redress present. As such, this is accuracy sufficient to meet the requirements of the GDPR.

2) SCOPE I am also struggling to see how this is in scope of the ePDP team. Our task, again, is to decide whether the provisions of the temp spec are capable of being confirmed as consensus policy, with or without modification, as is necessary, to ensure compliance with Data Protection law. Our job is not to rewrite the WHOIS accuracy specification, but to apply the expectations of the GDPR (and other legislation as may be applicable). As written, the temp spec's approach to accuracy vis á vis the use of the data in the registration process, is reasonable in the circumstances, and prejudice caused by inaccuracy present is mitigated by the availability of redress mechanisms that are not actually dependent on the accuracy of the data, surely this is objectively a sufficient level of accuracy for that purpose.

3) Viable Alternative? Although I don't believe an alternative is necessary, nor do I believe this task is in scope for the ePDP, you have also have not provided us with a workable or viable alternative . Perhaps you could provide us with such a viable option as to how you think accuracy may be improved in the registration of a domain, in a manner that is proportional to the objective of the use (i.e the registration). Perhaps then we may be in a position to make a recommendation to the GNSO for future policy development?

Kind regards,

Alan

Alan Woods

Senior Compliance & Policy Manager, Donuts Inc.

The Victorians,

15-18 Earlsfort Terrace
Dublin 2, County Dublin
Ireland

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On Sat, Dec 8, 2018 at 12:49 AM Margie Milam <margiemilam@fb.com> wrote:

Hi-

I was asked to provide further background for the accuracy discussion after yesterday’s EPDP call.   Here is some information to frame our further analysis:


SCOPE

This EPDP was chartered “to determine if the Temporary Specification...should become an ICANN Consensus Policy, as is or with modifications, while complying with the GDPR and other relevant privacy and data protection law.” In order to fully comply with GDPR, data -- the very subject of this EPDP -- is required to be accurate.

According to Article 5.1(d) of the GDPR, personal data shall be "accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay." Article 39 also has similar language. Within the GDPR, this is the second of three principles about data standards, along with data minimization and storage limitation that needs to be addressed. While we have had much discussion about data minimization and storage limitations, what’s clearly missing to finalize our deliberations and output about data standards is our discussion about data accuracy requirements.

The ico. (Information Commissioner’s Office in the UK) points out in its writings on “Principle (d): Accuracy” that one of the new features of GDPR as compared to the principles under its predecessor is that there is now a “clearer proactive obligation to take reasonable steps to delete or correct inaccurate personal data.” The ICO notes that while “[t]here are clear links here to the right to rectification, which gives individuals the right to have inaccurate personal data corrected” … “[i]n order to ensure that your records are not inaccurate or misleading in [the case of personal data someone else provides], you must:

                …

take reasonable steps in the circumstances to ensure the accuracy of the information; and
carefully consider any challenges to the accuracy of the information.”

The ico. goes on to say that “The more important it is that the personal data is accurate, the greater the effort you should put into ensuring its accuracy. So if you are using the data to make decisions that may significantly affect the individual concerned or others, you need to put more effort into ensuring accuracy. This may mean you have to get independent confirmation that the data is accurate.” We can all agree that the accuracy of domain name ownership is paramount to collection of WHOIS/Registered Name Holder data in the first instance. In addition, since this data will be used by others (with a lawful interest), ensuring that it is accurate for them is relevant.

This isn’t a new concept for discussion, as you may recall that the European Commission’s technical input on ICANN's proposed GDPR-compliant WHOIS models underscored the GDPR's "Accuracy" principle and made clear that “reasonable steps should be taken to ensure the accuracy of any personal data obtained” for WHOIS databases and that ICANN should be sure to incorporate this requirement in whatever model it adopts.

The ico. points out that “[o]ne of the biggest changes introduced by the GDPR is around accountability – a new data protection principle that says organisations are responsible for, and must be able to demonstrate, compliance with the other principles ... [y]ou now need to be proactive about data protection, and evidence the steps you take to meet your obligations and protect people’s rights.” With the main thrust of the EPDP being to ensure that the WHOIS policies ICANN and the contracted parties adopt comply with the principles of the GDPR, these accountability principles shouldn’t be taken lightly.

Consistent with these commitments and the GDPR, accuracy is an issue fully within scope of the EPDP so that ICANN and contracted parties proactively address how they will ensure the accuracy of data in the first place, not just how they rectify inaccurate data brought to their attention after collection -- we simply see no way around the EPDP affirmatively addressing the GDPR’s accuracy principle in our deliberations and output. Especially since accuracy is addressed in the Temp Spec itself (see 4.1), which states ICANN is responsible for “Maintenance of and access to accurate and up-to-date information concerning registered names and name servers”.



OUTPUT/COMPLIANCE

Dbata accuracy needs to be addressed both proactively as well as retroactively. As the ico. states “Accountability is not a box-ticking exercise. Being responsible for compliance with the GDPR means that you need to be proactive and organised about your approach to data protection, while demonstrating your compliance means that you must be able to evidence the steps you take to comply.” The ico. goes onto say that “Documenting this information is a great way to take stock of what you do with personal data. Knowing what information you have, where it is and what you do with it makes it much easier for you to comply with other aspects of the GDPR such as making sure that the information you hold about people is accurate and secure.” (emphasis added)

To that end, the WHOIS policy developed by the EPDP needs to incorporate steps for contracted parties to be in compliance with the GDPR – accuracy being one facet of compliance.   The WHOIS Accuracy Reporting System Reports showed that the accuracy levels are unacceptably low.

We see the policy discussion on accuracy focused in three areas:

Collection: At intake, we should consider whether the current forms of validation are sufficient. In this regard, it may be useful to include in the ccTLD survey a request to see what validation is done by the EU based ccTLDs.

Maintenance: Once data is collected, Article 5 of the GDPR says that data must be “kept up to date”, which seemingly requires some sort of process that could be developed.

Rectification: Article 5 of the GDPR says that ICANN and the contracted parties must “ensure that personal data that are inaccurate … are erased or rectified without delay” and so, a uniform method to report and rectify inaccurate data could be considered.

Because there are so many facets to this conversation, perhaps the best way to address this is to talk about this in Toronto, at our F2F.

All the best,

Margie

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