Hi Alan,

Thank you for your feedback. I must take responsibility for asking Mark to reword some of this yesterday, and that seems to have been counterproductive since we appear to have some disconnect between what we wanted this to be and what it became.

If I can make a constructive suggestion since I’ve come to understand it is important that we list our examples in the initial report: We should merely list the headings of “use cases” for public comment, noting that we will be discussing the legal and policy potential for each of them, and that we may confirm or reject some, all, or none of them based on public comment and our own deliberations.

Does that work? You make important points that we need to address in constructive conversation, and it seems we simply don’t have time to do so before Thursday.

Brian J. King
Director of Internet Policy and Industry Affairs

T +1 443 761 3726
markmonitor.com

MarkMonitor
Protecting companies and consumers in a digital world

From: Gnso-epdp-team <gnso-epdp-team-bounces@icann.org> On Behalf Of Alan Woods
Sent: Tuesday, February 4, 2020 6:13 AM
To: Mark Svancarek (CELA) <marksv@microsoft.com>
Cc: gnso-epdp-team@icann.org
Subject: Re: [Gnso-epdp-team] Latest version of Automated Use Cases document

Mark,

Thanks for completing this. Noting we did discuss this, alas I must note that this new document does not reflect my impression of the discussion that we had: 

1. I recall we discussed that the decision for disclosure would be at the option of the controller, who on the basis of the data and risk profile before them, can initiate the automated response. This assumption was acceptable to me. This resultant document does not even contemplate this. I particularly note an expanded creep back into 'required' automated disclosure. This is not agreed, was not discussed, and should not be included in our interim report.  
2. The assumptions in this document assumes that the Gateway / authorization body will have the data to make the decision - although you note in VII that that singular assumption may modify the relationships, for the record this does actually completely depart from the swimlane model as presented. The model represented now effectively tries to avoid the central body actually processing of registration data (gateway/ Auth). Your assumptions are forcing that body into a decision making controllership role (automated is still a decision). Adhering to the swimlane as presented, the decision and the automation will still occur at the CP at their discretion - and imposition is not envisaged. (allowing a factual apportionment of a 'processor' role under a JCA). 
3. The additional mix of the 'recommendation' concept into nudging towards automation is new. It is also unhelpful. Calling a spade a spade, a "recommendation and feedback" imposition on the decision maker is flipping the actual requirement here. The controller may tell the central body that certain decisions can be automated (as we discussed)- not vice versa (notwithstanding that this is only possible where the central body has the data, which is again not currently envisaged in the swimlane model). To confirm the central body, acting in the factual guise of a processor, must act solely on the instructions of the controller in 'permitted' instances. To reverse this assumption i.e. to have the processor continually recommend chipping away at the clear and sole instructions of the controller is anathema to the spirit of article 28 and will draw the ire of privacy by default; disclosures on a sliding scale of automated 'recommendations', based on observed and solely empirical data from decisions; (assuming we are not commissioning an AI who can understand the nuance of a balancing test), then observed repetition of decisions does not a rule make; errors in judgment may occur, and repetition of that error does not make it less of an error. 
4. "A requestor can selectively assert whether data specific disclosed in response to a particular request will be used in a way that has legal or similarly significant effects on the data subjects." - this is a controller's job not the requester. Plus, objectively speaking, we cannot build an inherent bias in the requestor's request. All requesters (one assumes) have a subjective goal to achieve; surely they are not going to play up the impact, where they know that the greater impact, the more important such an impact plays in the balance. I understand the suggestion is well meaning, and a controller will certainly take any such an assertion into account - but let's be clear that the assertion of the requester is a single factor of the consideration, and should never be determinative.

As Volker noted, and as I discussed with you, most of these instances still require human interaction, which is within the sole purview of the controller. I agreed that some of the examples noted may be automated (e.g. in jurisdiction request of a LEA or equivalent - i.e. where the controller will process under 6(1)c or equivalent. I also agree that there are instances where the controller wishes to voluntarily assume risk, and takes measures to automate themselves (adhering to the swimlane) - that does not mean that these 'use cases' support automation for all, merely that they support a concept of 'automation at risk' to the controller. Such a heightened risk profile cannot be imposed on other controllers not so inclined or advised. 

I also note that Brian King's separate missives seem to suggest that this is to be included in the interim report. Again this was not the understanding from our conversations. We had discussed that this was reference material for the benefit of discussion, and not part of our report. I do not support its inclusion in the report at this point; it has not been properly discussed and does not align with the actual understanding of the model as described. I also doubt that this will garner such required discussion in the few days we have prior to publication.  

Warm regards,

Alan 

Alan Woods Senior Compliance & Policy Manager, Donuts Inc. Suite 1-31,  Block D, Iveagh Court Harcourt Road Dublin 2, County Dublin Ireland

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On Tue, Feb 4, 2020 at 3:39 AM Mark Svancarek (CELA) via Gnso-epdp-team <gnso-epdp-team@icann.org> wrote:

Thanks you all for your patience waiting for this, and thanks to everyone who sent me feedback both privately and on-list.  Hopefully I have incorporated all the feedback*

I’ve consolidated various use cases and assumptions.  Apologies in advance because this resulted in renumbering from the previous version.

/marksv

*except for the Trademark use case, where the feedback was inconsistent.  We’ll have fun with that one.

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