Dear EPDP Team:

Attached, please find two legal memos from Bird & Bird in response to the following questions:

1. Consider a System for Standardized Access/Disclosure where:  

• contracted parties “CPs” are contractually required by ICANN to disclose registration data including personal data, 
• data must be disclosed over RDAP to requestors either directly or through an intermediary request accreditation/authorization body, 
• the accreditation is carried out by third party commissioned by ICANN without CP involvement, 
• disclosure takes place in an automated fashion without any manual intervention, 
• data subjects are being duly informed according to ICANN’s contractual requirements of the purposes for which, and types of entities by which, personal data may be processed. CP’s contract with ICANN also requires CP to notify data subject about this potential disclosure and third-party processing before the data subject enters into the registration agreement with the CP, and again annually via the ICANN-required registration data accuracy reminder. CP has done so. 

Further, assume the following safeguards are in place 

• ICANN or its designee has validated/verified the requestor’s identity, and required in each instance that the requestor: 

· represents that it has a lawful basis for requesting and processing the data,  

· provides its lawful basis, 

· represents that it is requesting only the data necessary for its purpose,  

· agrees to process the data in accordance with GDPR, and  

· agrees to EU standard contractual clauses for the data transfer.  

• ICANN or its designee logs requests for non-public registration data, regularly audits these logs, takes compliance action against suspected abuse, and makes these logs available upon request by the data subject. 

1.  What risk or liability, if any, would the CP face for the processing activity of disclosure in this context, including the risk of a third party abusing or circumventing the safeguards?

2.  Would you deem the criteria and safeguards outlined above sufficient to make disclosure of registration data compliant? If any risk exists, what improved or additional safeguards would eliminate¹ this risk?  

3.  In this scenario, would the CP be a controller or a processor², and to what extent, if at all, is the CP’s liability impacted by this controller/processor distinction? 

4. Only answer if a risk still exists for the CP: If a risk still exists for the CP, what additional safeguards might be required to eliminate CP liability depending on the nature of the disclosure request, i.e. depending on whether data is requested e.g. by private actors pursuing civil claims or law enforcement authorities depending on their jurisdiction or the nature of the crime (misdemeanor or felony) or the associated sanctions (fine, imprisonment or capital punishment)?

Footnote 1: “Here it is important to highlight the special role that safeguards may play in reducing the undue impact on the data subjects, and thereby changing the balance of rights and interests to the extent that the data controller’s legitimate interests will not be overridden.“ (https://iapp.org/media/pdf/resource_center/wp217_legitimate-interests_04-2014.pdf [iapp.org])

Footnote 2: https://ec.europa.eu/info/law/law-topic/data-protection/reform/rules-business-and-organisations/obligations/controller-processor/what-data-controller-or-data-processor_en [ec.europa.eu]

2. To what extent, if any, are contracted parties liable when a third party that accesses non-public WHOIS data under an accreditation scheme where by the accessor is accredited for the stated purpose, commits to certain reasonable safeguards similar to a code of conduct regarding use of the data, but misrepresents their intended purposes for processing such data, and subsequently processes it in a manner inconsistent with the stated purpose.  Under such circumstances, if there is possibility of liability to contracted parties, are there steps that can be taken to mitigate or reduce the risk of liability to the contracted parties?

4. Under the GDPR, a data controller can disclose personal data to law enforcement of competent authority under Art. 6 1 c GDPR provided the law enforcement authority has the legal authority to create a legal obligation under applicable law. Certain commentators have interpreted “legal obligation” to apply only to legal obligations grounded in EU or Member State law.

As to the data controller:

a. Consequently, does it follow that the data controller may not rely on Art. 6 1 c GDPR to disclose personal data to law enforcement authorities outside the data controller’s jurisdiction? Alternatively, are there any circumstances in which data controllers could rely on Art. 6 1 c GDPR to disclose personal data to law enforcement authorities outside the data controller’s jurisdiction?

b. May the data controller rely on any other legal bases, besides Art. 6 I f GDPR, to disclose personal data to law enforcement authorities outside the data controller’s jurisdiction?

As to the law enforcement authority:

Given that Art. 6 1 GDPR states that European public authorities cannot use Art. 6 I f GDPR as a legal basis for processing carried out in the performance of their tasks, these public authorities need to have a legal basis so that disclosure can take place based on another legal basis (e.g. Art. 6 I c GDPR). 

c. In the light of this, is it possible for non-EU-based law enforcement authorities to rely on Art. 6 I f GDPR as a legal basis for their processing? In this context, can the data controller rely on Art. 6 1 f GDPR to disclose the personal data? If non-EU-based law enforcement authorities cannot rely on Art. 6 1 f GDPR as a legal basis for their processing, on what lawful basis can non-EU-based law enforcement rely?

Please note we are still awaiting a response to one question (Q3), which we will distribute when available.

Thank you.

Best regards,

Marika, Berry, and Caitlin