Hi Volker, I totally agree with you that we should not tell CPs that a certain amount of risk is part of their business calculation. However, I certainly assume that risk is already part of their calculation, remember CPs are allowing registrants to consent to the publication of their data, also I think we all agree that zero risk does not exist. However let me clarify, if the registrar either requires the registrant to provide and answer to the type field (the answer could be unspecified) or offers the designation field as an option to the registrant, that does not mean that it will necessary publish this data. Disclosure falls under a different set of rules. Kind regards Hadia From: Volker Greimann [mailto:vgreimann@key-systems.net] Sent: Monday, August 09, 2021 6:24 PM To: Hadia Abdelsalam Mokhtar EL miniawi Cc: Steve Crocker; gnso-epdp-team@icann.org Subject: Re: [Gnso-epdp-team] A short note on possible outcomes re Natural, Legal or Unspecified Hi Hadia, yes, we have had this discussion before. And I appreciate it has less risk, but less risk is not no risk and therefore it has to boil down to the individual contracted party to evaluate their own risk appetite. It is not for us to tell them that a certain amount of risk of being found in violation of standing legislation is now part of their business calculation. -- Volker A. Greimann General Counsel and Policy Manager KEY-SYSTEMS GMBH T: +49 6894 9396901 M: +49 6894 9396851 F: +49 6894 9396851 W: www.key-systems.net<http://www.key-systems.net/> Key-Systems GmbH is a company registered at the local court of Saarbruecken, Germany with the registration no. HR B 18835 CEO: Oliver Fries and Robert Birkner Part of the CentralNic Group PLC (LON: CNIC) a company registered in England and Wales with company number 8576358. This email and any files transmitted are confidential and intended only for the person(s) directly addressed. If you are not the intended recipient, any use, copying, transmission, distribution, or other forms of dissemination is strictly prohibited. If you have received this email in error, please notify the sender immediately and permanently delete this email with any files that may be attached. On Mon, Aug 9, 2021 at 5:20 PM Hadia Abdelsalam Mokhtar EL miniawi <Hadia@tra.gov.eg<mailto:Hadia@tra.gov.eg>> wrote: All, As a reminder according to Bird & Bird memo, if personal information is disclosed by mistake due to the disclosure of a legal person's data that includes personal information, the risk in relation to fines is much less than if third parties personal information is disclosed by mistake based on the consent of the registrant. I stop now because I know this was discussed before, but this is just to reply to the possibility issue raised by Volker. Kind regards Hadia From: Gnso-epdp-team [mailto:gnso-epdp-team-bounces@icann.org<mailto:gnso-epdp-team-bounces@icann.org>] On Behalf Of Steve Crocker via Gnso-epdp-team Sent: Monday, August 09, 2021 5:04 PM To: Volker Greimann Cc: gnso-epdp-team@icann.org<mailto:gnso-epdp-team@icann.org> Subject: Re: [Gnso-epdp-team] A short note on possible outcomes re Natural, Legal or Unspecified Volker, Is it your position that even if the registrant declares they are a business, i.e. a Legal Person, it is nonetheless necessary to restrict access to their contact data because it might contain personal information? If so, then it would seem there's no reason to ask the status and all registrant data should be treated as if it contains personal information. I'm not arguing whether this is a good or bad policy. I'm just asking if this is your interpretation. If so, it's a very clean, simple and easy to administer policy. I would also imagine it would engender an increase in efforts to obtain non-public data. Thanks, Steve On Mon, Aug 9, 2021 at 9:57 AM Volker Greimann <vgreimann@key-systems.net<mailto:vgreimann@key-systems.net>> wrote: All, please bear in mind that this group is not tasked with achieving a result "we like to see" but with determining whether a change from the previous result is possible, and if so, necessary. So far, no necessity has been demonstrated and even with regard to the possibility the issue of legal risk due to personal information being contained in legal entity data still remains. As such, the default stands. Sincerely, -- Volker A. Greimann General Counsel and Policy Manager KEY-SYSTEMS GMBH T: +49 6894 9396901 M: +49 6894 9396851 F: +49 6894 9396851 W: www.key-systems.net<http://www.key-systems.net/> Key-Systems GmbH is a company registered at the local court of Saarbruecken, Germany with the registration no. HR B 18835 CEO: Oliver Fries and Robert Birkner Part of the CentralNic Group PLC (LON: CNIC) a company registered in England and Wales with company number 8576358. This email and any files transmitted are confidential and intended only for the person(s) directly addressed. If you are not the intended recipient, any use, copying, transmission, distribution, or other forms of dissemination is strictly prohibited. If you have received this email in error, please notify the sender immediately and permanently delete this email with any files that may be attached. On Mon, Aug 9, 2021 at 1:50 PM Hadia Abdelsalam Mokhtar EL miniawi via Gnso-epdp-team <gnso-epdp-team@icann.org<mailto:gnso-epdp-team@icann.org>> wrote: Thanks Steve for this work and this brief. In relation to the collection rules and just to note, ultimately we would have liked to see rule number one {C} applied. Bearing in mind that rule number one does not necessary need to say "Legal" or " Natural" it can also say " unspecified". However, we do recognize that no consensus in this regard is possible. Therefore our compromised position is rule number 4 {C, O} and honestly speaking I do not understand why we cannot agree to this. The difference between 4 {C,O} and 7 {C,O,N} is that 7 allows the registrar to not offer the registrant the ability to specify. GDPR as we all know makes this distinction and therefore it is only fair to give the data subject the ability to specify if it wishes and please note here that we should not conflate what is being offered by the registrar or collected from the registrant with what is going to be available through the public RDDS. What is going to be available through the public RDDS and the rules associated with any type of disclosure, are governed by a different set of rules which we could discuss and possibly agree to. As for option 8, my understanding is that this option refers to a deadlock position, which is an uncommon position, however it is not 7. Best Hadia From: Gnso-epdp-team [mailto:gnso-epdp-team-bounces@icann.org<mailto:gnso-epdp-team-bounces@icann.org>] On Behalf Of Steve Crocker via Gnso-epdp-team Sent: Monday, August 09, 2021 12:06 AM To: EPDP Subject: Re: [Gnso-epdp-team] A short note on possible outcomes re Natural, Legal or Unspecified On Fri, Aug 6, 2021 at 10:05 AM Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote: I also appreciate the nice logical summary of options, Steve. A slightly revised version of my memo is attached. The content is exactly the same, but I have included a table showing which the three possible registrar rules are consistent with each of the eight possible GNSO rules. I have also introduced "ø" as the notation for the empty set instead of "{}." This is purely a change in notation, not in meaning. Like Volker, however, I believe that you are overlooking the fact that we have debated these options for months and have arrived firmly at option 7 (there is no distinction between 7 and 8, by the way). In 7, each registrar is permitted to have whichever rule it chooses. In 8, no rule is acceptable. 8 is a logical possibility but, quite obviously, it leads to an impossible situation. If such a policy were ever adopted, everyone would most likely ignore it. In that event, yes, 7 and 8 would have similar effects, i.e. impose no constraint. However, when we take into account the effect of multiple policies, the combined effects of multiple rules might indeed be 8. Detecting that in advance is important. See more on this below. In the meantime, the current state of agreement is 7, i.e. the GNSO will not impose any constraint on whether a registrar always collects the registrant's status, never collects the registrant's status, or makes it optional for the registrant to state its status. Only 7 is possible, because that was the agreed outcome of phase 1 while we explored other options in Phase 2. In Phase 2 we discovered we cannot attain sufficient agreement to move off of that equilibrium. Some EPDP members will recall that I personally indicated a willingness to move toward something like #6. This did not fly. Neither the Contracted Parties nor my own SG would accept it, and the GAC, ALAC and two CSG constituencies still wanted something more like 1 or 2. "Something like #6," eh? Well, 6 is: 6 = {O, N}, a registrar must either make it optional or not collect it but may not require it Meanwhile, 1 = C, i.e. every registrar collects this value 2 = O, i.e. every registrar is required to make this optional I wonder if they might have wanted 4 = {C, O}, a registrar must either collect it or make it optional I'll come back to this later in this note, but first let's look at two other parts of this puzzle. First, there are logically four possible values regarding the status. * "Natural," indicating the registrant has declared itself to be a natural person, i.e. an individual * "Legal," indicating the registrant has declared itself to be a legal person, i.e. a business * "Unspecified," indicating the registrant has affirmatively refused to declare as either a Natural or Legal person * "Blank," indicating the question has not been asked. Is there a distinction between the third and fourth status, and does it matter? In some cases it could well matter. In cases where it doesn't matter, there's no harm in allowing for both possibilities and then treating them the same. Second, we come to the really big question: How will this piece of information be used? I think we all expect this may play a role in what data is returned when there is a request for registration data, but this hasn't been fleshed out. In very approximate terms, the general thinking is that data about Legal persons will be publicly available and data about Natural persons will not be. But this is only the beginning of the conversation, not the end. It is helpful to think in terms of two distinct processes. One is the process of collecting the data during the time of registration. The other is the process of responding to requests for information about the registration. Let's begin with the second process. The Request Process Requests for registration data will come from many different parties. Some will come from the general public, and the requester will not be required to identify itself nor adhere to any rules governing use or protection of the data. Others will come from identified, authenticated and authorized requesters who have agreed to abide by a set of rules governing the use and protection of the data they receive. Requesters in the latter category are not all the same. The data they receive will likely depend on who they are and how they will be using the data. Examples of different subgroups of requesters are network operators, individual researchers, law enforcement, and IP attorneys, and within each of these subgroups there will likely be different kinds of requests. For example, we know from interviewing the members of the Public Safety Working Group they can identify five different kinds of requests, one of which is a request available to anyone and four others that request more data and come with a specific set of rules governing use and protection. At least one kind of request will come with legal paperwork, e.g. a warrant or subpoena, but other kinds of requests will not. And they aren't the only subgroup that might have different kinds of requests. What distinguishes these various kinds of requests? In the work we've been doing, it appears reasonable to express requests in terms of two concepts. One is some way of specifying which data elements are being requested. The other is to specify the level of sensitivity, a term we've been using to include whether data is marked "public" or "private." Are there more than just two levels? Well, yes, it seems so. In listening to the extended policy discussions, we have heard that if a requester is only authorized to see data elements marked "public" and the actual data element existings but is not publicly available, the response will be "redacted." However, we have also heard there are some data elements that are more sensitive, and requests from someone not authorized to see them will not be told anything about the data element. This suggests there are at least three levels of sensitivity. As a working hypothesis, we use four levels. If this turns out to be too many, it's easy to reduce the number. To recap, we think of a request as specifying the set of data elements requested and the authorized sensitivity level. The response will not include any data elements outside of the requested set nor any data elements more sensitive than the authorized sensitivity level. Of course, all of this is in addition to the identification of the requester, the statement of purpose, a pointer to the requester's credential, and agreement regarding use and protection of the requested data. Specifying the requested data elements is not a small matter. The data dictionary has around 100 distinct data elements. Each contact is a dozen or data elements, with the name, organization, phone number, fax number, email, street address, city, province or state, postal code and country treated separately. Added to these are the data elements for the DNS records, for the payment data, for the IP address used at the time of registration, the dates of registration and expiration, register locks, etc. To make it more manageable, each data element is grouped into one of several categories. A request then specifies which of these categories are requested. The Registration Process With the above description of the request process, we can now fill in a few details of the registration process. In broad terms, the registration process consists of collecting data from the registrant and assigning a sensitivity level to each of the collected data elements. (And, of course, reserving the domain name and getting it delegated if the registrant wants to put the domain name into service.) To accomplish this process, the registrar has a set of rules governing which data elements are required, optional or not to be collected, and what sensitivity level to assign to each collected data element. Once this process is complete, the registrar then stores the data elements and is then in a position to process requests in accordance with the agreed upon terms in a request. A further and all important addition to this short description is the registrar might have one set of rules for registrants that are Natural Persons, a different set of rules for registrants that are Legal Persons, and perhaps even a different set of rules for registrants of Unspecified status. Moreover, the status of the registrant might not be the only factor that determines which set of rules the registrant will use to complete the registration. For example, some registrars may treat registrants that need a higher level of protection differently from ordinary registrants. Celebrities and public figures are examples of Natural Persons who may need extra protection. Registrations associated with an impending business deal, e.g. product announcements, tentative mergers, etc. are examples of registrations by Legal Persons that may need extra protection. Taking the above into account, the registration process can be thought of as having an initial phase to determine which set of rules to use for the registration, and then the main phase to collect and label the rest of the registration data. So What About Natural vs Legal? The putative purpose in collecting the registrant's status is to restrict the disclosure of some portion of a Natural Person's registration data from being publicly accessible. In the terms described above, this means marking those data elements as more sensitive than "public." But what happens if... 1. ... the registrar doesn't collect the status? 2. ... the registrant refuses to give its status, i.e. responds "Unspecified?"As As was stated at the beginning of this note, the current GNSO policy leaves the decision about collecting the status up to the registrar, so there's no guarantee the registrar will have this data. Even so, we might imagine a GNSO policy that says something to the effect of: if you collect the registrant's status, if the registrant's status is Natural, then apply rule set 1, otherwise, if the registrant's status is Legal, the apply rule set 2, otherwise, if the registrant's status is Unspecified, apply rule set 3 if you don't collect the registrant's status, apply rule set 4 So far, I haven't seen any discussion that goes into this level of detail, nor have I seen any discussion about taking into account other aspects of the registrant such as whether they require a higher level of protection. The GNSO is not the only source of rules The GNSO is the venue for setting the rules included in ICANN's contracts with the contracted parties. The registrars and registries are obligated to adhere to the terms of the contract. However, there are other bodies that can also set rules. Governments are the obvious examples, but there might be others. Suppose a registrar is beholden to three authorities, ICANN, Government 1 (G1) and Government 2 (G2). Further, let's suppose that each body imposes its own rule. The ICANN rule will be {C, O, N}, i.e. anything is ok. Let's suppose G1's rule is {O, N}, i.e. registrars are permitted but not required to make it optional. And let's suppose G2's rule is {C}, i.e. every registrar subject to this government's rules must collect this data. The combined effect of all three rules is ø, i.e. the empty set, and there is no way a registrar can be in compliance with all of them. On the other hand, if G2's rule were loosened to {C, O}, a registrar would be in compliance if its rule were O, i.e. making it optional for the registrant to supply this data. Conclusion The process of specifying the rules for collection and responses to requests has only just begun. As we noted in prior comments and in our SSAC report, the focus on which data is to be marked "public" is just a small part of the overall puzzle. The extended discussions about Natural vs Legal are motivated, at least in part, by the attempt to make as much of the registration data publicly accessible because there is not yet any credible path toward an efficient and effective access system for non-public data. Steve ________________________________ From: Gnso-epdp-team <gnso-epdp-team-bounces@icann.org<mailto:gnso-epdp-team-bounces@icann.org>> on behalf of Volker Greimann via Gnso-epdp-team <gnso-epdp-team@icann.org<mailto:gnso-epdp-team@icann.org>> Sent: Thursday, August 5, 2021 4:41 PM To: Steve Crocker <steve@shinkuro.com<mailto:steve@shinkuro.com>> Cc: EPDP <gnso-epdp-team@icann.org<mailto:gnso-epdp-team@icann.org>> Subject: Re: [Gnso-epdp-team] A short note on possible outcomes re Natural, Legal or Unspecified Hi Steve, I fail to see how this admittedly succinct summary of the existing options helps us move ahead the discussion as this basically only reflects the discussions we have over the past months. At this point, we are likely either at option 7 or 8, which incidentally also describe the status quo. The real issues start after making these basic definitions as there are complexities down the line following from the designations: a) In case of C or O, does that lead to partial publication based on the designation? Does it lead to forwarding the designation to the registries? How would/should the registries treat those designations received? Can they rely on them? Will they rely on them without burdening registrars with further liability and indemnification requirements? b) What happens down the road? Will agreeing to optional fields immediately lead to calls for them to be made into requirements by future work? Best, -- Volker A. Greimann General Counsel and Policy Manager KEY-SYSTEMS GMBH T: +49 6894 9396901 M: +49 6894 9396851 F: +49 6894 9396851 W: www.key-systems.net<http://www.key-systems.net/> Key-Systems GmbH is a company registered at the local court of Saarbruecken, Germany with the registration no. HR B 18835 CEO: Oliver Fries and Robert Birkner Part of the CentralNic Group PLC (LON: CNIC) a company registered in England and Wales with company number 8576358. This email and any files transmitted are confidential and intended only for the person(s) directly addressed. If you are not the intended recipient, any use, copying, transmission, distribution, or other forms of dissemination is strictly prohibited. If you have received this email in error, please notify the sender immediately and permanently delete this email with any files that may be attached. On Thu, Aug 5, 2021 at 5:26 PM Steve Crocker via Gnso-epdp-team <gnso-epdp-team@icann.org<mailto:gnso-epdp-team@icann.org>> wrote: The attached note is a summary of the possible policies regarding Natural vs Legal vs Unspecified _______________________________________________ Gnso-epdp-team mailing list Gnso-epdp-team@icann.org<mailto:Gnso-epdp-team@icann.org> https://mm.icann.org/mailman/listinfo/gnso-epdp-team _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ Gnso-epdp-team mailing list Gnso-epdp-team@icann.org<mailto:Gnso-epdp-team@icann.org> https://mm.icann.org/mailman/listinfo/gnso-epdp-team _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.