1. Are there alternatives to WHOIS to achieve the online buyer purpose: the answer as has been argued is Yes. Therefore since WHOIS is not the only means to be used for online buyers purpose, it does not pass the balancing test. 2. Some insist that this would have been a really easy use case had we accepted to distinguish between legal and natural. Not only this is wrong because of the points Volker enumerated, but it is also based on the wrong premise that all the online sellers are "businesses" and "legal entities", hence creating a distinction is easy. The Internet became the hotbed of Consumer to Consumer (C2C) transactions due to its global nature and reduction of transaction costs for consumers to sell their goods on online intermediaries but also on their own websites. People can set up a website and sell the contents of their garage, or sell a pamphlet about how to grow the best tomato in the world! They cannot be automatically categorized as "legal entities" because they occasionally sell their postcards on their personal website. We have gone over this too many times. We really don't have to insist on all the use cases submitted by various people to be accepted by this group. It makes the exercise much more difficult and we get sidetracked. Farzaneh On Thu, Aug 29, 2019 at 1:51 AM Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
Amr, as few points.
1. This use case is NOT about content. It is true that the user request *MAY* have been triggered by content of a web site. But it could equally well have been triggered by an e-mail received. Or just the semantics of the domain name. A registrar *might* choose to use any web content as a basis for responding positively or negatively to such a request for access, but it could also use its own database of its customer information to determine if the registrant is a legal person. What the registrar does in resolving an access request will not be dictated by any ICANN policy and is purely up to its business practices.
2. I really do not understand the concept if us "rejecting" a use case. We were asked to identify potential use cases and we did. You captured the validity of the case at the end of your message: *"there is still nothing preventing an Internet user from requesting information about a website they might do business with from a registrar". *Any EPDP rejection notwithstanding, a user may still request access to information about a registrant that she believes may be a legal person. And a registrar/registry may ultimately agree to grant that access - or not. Therefore it *IS* a user case, albeit perhaps one you don't like.
Nothing in this use case presupposes that access will be granted, nor does it presume that such a use will be handled in anything but a manual mode with the registrar performing the "balancing" as dictated by GDPR.
Alan
At 28/08/2019 03:30 PM, Amr Elsadr wrote:
Hi Brian,
I'm not sure that it makes a difference - wether disclosure can or cannot be presupposed as an outcome. If we, as a Team developing gTLD policy recommendations, tackle an issue concerning web content, reach a conclusion (any conclusion) on it, send a recommendation to the GNSO Council, which is adopted and then sent to the ICANN Board, which adopts it yet again, then what is the outcome? To me, the answer to that question would be that the EPDP Team, the GNSO Council and the ICANN Board have all contributed to creating contractual obligations on Contracted Parties that ICANN should have no business creating.
To me, this is also a means of pulling topics out-of-scope of ICANN's mission in to it, because although this scope is defined by the Bylaws, there are also Bylaws granting the GNSO responsibility for developing gTLD policy. Would create a bit of a messy constitutional sort of situation, I think.
Also, at some point in the future, the Consensus Policy we are in the process of developing recommendations for will be reviewed, and amendments may be sought. Reviewing Consensus Policies could potentially be initiated by either the GNSO or GDD (if you're following the current Council conversation on reviews of implemented Consensus Policies). So even if we are not presupposing any outcome of disclosure in this use case now, we open the door to further policy development on this topic at some point in a future iteration. On a topic that should have been flagged as out-of-scope of ICANN's mission to begin with!!
Ideally, we would not submit any recommendations concerning web content at all. If we did, it'd be nice to know that there are checks and balances in place that initiate some kind of course correction. For instance, the GNSO Council or the ICANN Board would respond saying, wait a minute, why are you sending us a policy recommendation on a topic outside of ICANN's scope?! Speaking for myself, unfortunately, I very much doubt that would happen.
It's probably also noteworthy that even if we, as an EPDP Team, reject this use case, and do not address the topic in our recommendations, there is still nothing preventing an Internet user from requesting information about a website they might do business with from a registrar, as you suggest. Our use of these use cases should focus on helping respondents to disclosure requests understand how best to deal with whatever disclosure requests they receive. We can't cover every single potential use case anyway, so the ones we do work out should at least provide some guidance on how to deal with unforeseen circumstances. With that in mind, I believe there is value in addressing this use case, and rejecting it, as opposed to not looking at it at all.
This is my personal perspective, and apologies if it was slightly lengthier than it needed to be, but you asked. ;-)
Thanks.
Amr
†††††††Original Message †††††††On Wednesday, August 28, 2019 8:25 PM, King, Brian < Brian.King@markmonitor.com> wrote:
Hey Amr and all,
I can’t speak authoritatively for ALAC’s intent, but I read this use case as allowing internet users to *request* (not have an entitlement to receive) information about a website they might do business with, a link they might click, etc.
I think we’re merely talking about allowing an internet user to ask the question, without presupposing any access outcome. Does that change your perspective?
I’m sympathetic to concerns raised about the bounds of ICANN’s remit, and I might find those concerns more persuasive if we were talking about guaranteed access in this case.
*Brian J. King * Director of Internet Policy and Industry Affairs
T +1 443 761 3726 * markmonitor.com* <http://www.markmonitor.com>
*MarkMonitor *Protecting companies and consumers in a digital world
*From:* Gnso-epdp-team <gnso-epdp-team-bounces@icann.org> *On Behalf Of * Amr Elsadr *Sent:* Tuesday, August 27, 2019 7:28 AM *To:* Hadia Abdelsalam Mokhtar EL miniawi <Hadia@tra.gov.eg> *Cc:* gnso-epdp-team@icann.org *Subject:* Re: [Gnso-epdp-team] Notes and action items from EPDP Team Phase 2 Meeting #11 - 1 August 2019 - ALAC Online buyers Use Case
Hi,
The issue many of us have with this use case isn’t that Internet users should not be entitled to know who they elect to do business with over the web, so I don’t believe it is necessary to keep pushing that point. The issue is that in situations where entities conducting commerce over the Web do not have their contact information readily published on their websites, ICANN/gTLD policy is an inappropriate substitute to resolve this, due to ICANN’s narrow mission.
Speaking for myself, even if it were legal for ICANN to adopt policies that are beyond the scope of its mission (which I don’t think is the case here), it is undesirable for it to do so. Not having a clearly drawn line in the sand on what ICANN can regulate online via contractual compliance with Registries and Registrars, including selling and purchasing goods and services, is a prospect that I find to be very unappealing. It creates a great deal of uncertainty for both Contracted Parties providing domain name registration services, as well as registrants who utilize these services.
My interpretation of consumer protection from an ICANN perspective is that registrants are THE consumers of services in the ICANN context. In that context, proposing policy recommendations beyond the scope of ICANN’s mission is bad, not good, for consumer protection. …, and like I said…, I do don’t believe it to be complaint with data protection regulation, such as the GDPR, anyway.
Thanks.
Amr
On Aug 26, 2019, at 5:37 PM, Hadia Abdelsalam Mokhtar EL miniawi < Hadia@tra.gov.eg> wrote:
Hello All,
The ALAC online buyers online case is a real life scenario for why there needs to be a distinction between natural and legal persons. I shall not get into this debate. However, I note that consumers identity and even location is now available to buyers through many online applications, GDPR protects personal information of natural persons and not legal persons. It is only fair to Internet end users to allow them to have the contact information of the online businesses. This is particularly important in case Internet end users are dealing with small businesses online. You can find online businesses contact details now through some existing applications. What and who are we trying to protect by not allowing this use case. Commercial websites should be encouraged to indicate who they are and publish their information. The architecture of the web inherently does not require real identity, but having a complete anonymous system is always an invitation to problems, making people feel less accountable and diminishing the trust in the network. A survey conducted by Bright Local showed that 60% of customers prefer to call small businesses on the phone. The survey also showed that consumers now look beyond websites, RDS is only one tool of many however, prohibiting it to exist works against the norm. I also note that getting clarity in relation to the contracted parties liability in this regard is very important and if implemented information should only be provided if the case is absolutely clear.
I attach the updated user case, which is also available through the google doc
Best
Hadia el-Miniawi
From: Gnso-epdp-team [ mailto:gnso-epdp-team-bounces@icann.org <gnso-epdp-team-bounces@icann.org>] On Behalf Of Mueller, Milton L Sent: Monday, August 19, 2019 5:27 PM To: Tara Whalen; gnso-epdp-team@icann.org Subject: Re: [Gnso-epdp-team] Notes and action items from EPDP Team Phase 2 Meeting #11 - 1 August 2019 - ALAC Online buyers Use Case
Tara:
Responses inline below:
The ICANN Board resolved in May to have the ePDP “determine and resolve the Legal vs. Natural issue in Phase 2." https://www.icann.org/resources/board-material/resolutions-2019-05-15-en#1.b <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_board-2Dmaterial_resolutions-2D2019-2D05-2D15-2Den-231.b&d=DwMGaQ&c=OGmtg_3SI10Cogwk-ShFiw&r=qQNCXqU_XE2XIdXbawYmk-YDflYH6pd8ffXlzxU37OA&m=B8MS1O2ZkevjBW6hFhUe1Tfw1xhaFLotkSAAZ3g3DYQ&s=IAoMV6Yy5PfTOTRJ7D6oVAm1m5bFZMOIZHmnJjr4Gnk&e=> Because the issue is not decided. Not quite correct. The Board noted that EPDP’s own Recommendation said that we would resolve the issue in Phase 2. The board did not tell us to do so. The resolution also notes the “Potential liability of a registered name holder's incorrect self-identification of a natural or legal person, which ultimately results in public display of personal data.†This concern was one of several that motivated our reluctance to attempt differentiation. The EWG recommended a differentiation solution -- that registrants be required to identify as a Registrant Type, with Legal Person and Natural Person among the options. It also required that a mandatory Business PBC be published for “Registrants that self-identify as Legal Persons engaged in commercial activity" (pages 42-44 of final report). This option _was_ discussed and discarded in Phase 1. It was noted that to the vast majority of ordinary people the distinction between legal and natural has no meaning, and that there would be liability consequences if there were incorrect identification (see above). And besides, the recommendation of the EWG was made prior to GDPR and has no bearing on EPDP. ICANN’s Procedure for Handling WHOIS Conflicts with Privacy Law was reviewed by the GNSO and revised in mid-2017. A goal of the Procedure was “to resolve the problem in a manner that preserves the ability of the registrar/registry to comply with its [current] contractual WHOIS obligations to the greatest extent possible†. So -- to publish as much data as possible as allowed by law. Now you are way off base. Contractual Whois obligations in 2017 were not compliant with GDPR. The Conflicts with Privacy Law procedure is completely irrelevant to our proceedings. Under that Procedure, about the only precedent was the .TEL case, which addressed concerns raised by UK privacy law. In that case, the WHOIS service was made to differentiate between natural and legal persons. Some public WHOIS data was limited for natural persons who had elected to withhold their personal information from disclosure by the WHOIS service, records for Legal Persons had to return full and complete WHOIS data (including applicable personal data), and Legal Persons were not permitted to opt out of disclosing such information. The GDPR is definitely a different law and may yield a different policy. But the .TEL case did show that it’s possible to tell the difference between a natural person’s data and a legal person’s data, and to control where that data appears. Same comment as above.
<Consumer_Protection_Use_Case_ALAC - Online buyers_Update_2.docx>
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