As you may, or may not be aware, from 2008 through 2014, I was the representative for the U.S. Drug Enforcement Administration regarding ICANN and Internet governance issues, and an active participant in the ICANN law enforcement coalition during that period of time. I want to add in my two cents to this discussion. Although LE has been actively involved in ICANN for several years, the PSWG was just recently formed and accepted as a sub-group of the GAC. The internal processes between the PSWG and the GAC have not yet been developed, and a consensus between the PSWG and the GAC must be achieved prior to public comment being made. This has always been the case, but the establishment of the PSWG created a "formal" presence for law enforcement (which the ICANN community embraced) but inherently has created more bureaucracy. This is one of the reasons the PSWG did not post their statement/position during the PPSAI public comment period. Further, in addition to the GAC involvement, each law enforcement representative must receive approval from their respective governments prior to stating a public position. I can only speak to the US process on this; an internal US government working group comprised of several agencies must achieve consensus on the submitted position. I am sure that the timeline for this, as well as several other issues, was not a sufficient amount of time for the US government to review this matter, achieve consensus from all agencies, prepare the response, receive approval from the administration, and submit public comment. Because the PSWG did not post a public comment, doesn't mean they do not have a position. This particular public comment period is not the only opportunity the PSWG will have to make their position known. Once the internal process with the GAC is established, and the kinks worked out, I am sure the PPSAI will hear from the GAC, most likely through the Board, the PSWG/GAC position. With that said, I can say with confidence that law enforcement does not support the requirement of a court order, and does not support customer notification when a query is made. A full blown marketing campaign by one special interest group exploiting the fears of the community regarding the extremely sensitive issue of privacy, without proposing any alternative measures, only moves this process backward. It is not an issue of law enforcement attempting to circumvent due process, but rather an attempt to work with industry within the bounds of law, to protect public health and safety. At some point, common sense must prevail. On Thu, Jul 23, 2015 at 5:48 AM, James Gannon <james@cyberinvasion.net> wrote:
Speaking very specifically to the LEA access issues:
It's important to note number of things when we are speaking in relation to Law Enforcement Access. There are two issues at hand for P/P, wants and needs.
Law Enforcement has a need for Privacy Proxy providers to comply with the duly authorized requests of law enforcement through a national warrant, court order or other official legal vehicle including MLATs or other international mechanisms for interagency cooperation. I don't think anyone would claim that we are attempting to hinder or complicate this need. And indeed by formalizing the P/P world I would argue we are actively helping them in this area.
Law enforcement has a want to gain easier access to the details of registrants who are utilizing P/P services without having to go through the traditional means of access listed above. It's important to note that this is not a need. We are not claiming that LEAs will never have access to a registrants data if they follow the due course process in their respective jurisdictions. There are valid points from Bobby and Im sure others who will say that these processes are too slow for certain investigations. And I am sure that that may be the case for certain jurisdictions, although not in others. However with respect I suggest that this is an issue for national legislatures to address. We are not an elected legislative body at ICANN, and I do not believe that it is our job to fix the problem of speed of a warrant process for a Law Enforcement agency.
By wading into this extremely complex matter of international and national law I believe that we are stepping outside our mandate and outside of the wishes of the greater ICANN community. We do not have the authority or experience to recreate a system that already exists, a system whereby LEAs are able to access the data that they require in order to complete their work, and work which is absolutely critical to national safety. However if the argument is that the nationally and internationally recognized system of law to gain access to personal information is not fast enough for the LEA community then respectfully I suggest that that is an issue to be dealt with at a national legislation and MLAT level, not at ICANN working group level.
As Volker noted below, if an LEA needs a faster system, then it's up to them to request that from their nation states of residence as none of us are asking for anything more than due process to be followed and that we do not attempt to create methods of access that are essentially a side road around the rule of law that we live under.
To op-ed slightly on this, we have seen what happens when side roads are created with the NSA and public surveillance scandals in the USA, there is no public appetite internationally to circumvent the rule of law when it comes to people's privacy. I hope that we won't be party to creating another side road that no one wants to have.
-James Gannon
-----Original Message----- From: gnso-ppsai-pdp-wg-bounces@icann.org [mailto: gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Volker Greimann Sent: Thursday, July 23, 2015 10:01 AM To: gnso-ppsai-pdp-wg@icann.org Subject: Re: [Gnso-ppsai-pdp-wg] A slightly revised proposed approachfor reviewing public comments
Hi Kiran,
while it may not be a 15 minute thing, it is the legal process their legislative has deemed fit to place in front of them being able to demand anything they want. If the individual governments wanted to change that process and give them instant access, they would (and do (looking at the NSA folks)).
Volker
Am 22.07.2015 um 05:59 schrieb Kiran Malancharuvil:
Barry,
Thanks for your comments. I think you would be interested in the past interventions of Dick Leaning, who was the LE representative on this group until his retirement from Europol on July 1st of this year, and in the public safety working group comment drafted by Bobby Flaim from the FBI and Loreen Kapin from the FTC (with Dick's input). They have statedon multiple occasions that getting a warrant isn't a 15 minute thing. I'll let them speak for themselves but suffice to say that they prefer a system that doesn't require a warrant.
Anyway, I just wanted to point out that they've given their recommendations formally.
Happy lurking!
Kiran
Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Jul 21, 2015, at 8:12 PM, Barry Shein <bzs@world.std.com> wrote:
I apologize for posting at all since I'm not much involved but I'm sort of surprised at the level of speculation about law enforcement.
As an ISP I've been in the middle of this sort of thing.
In a nutshell there are large and huge and tiny LEAs and they're all quite different in their response.
I've dealt with the FBI who can turn out a proper warrant in about 15 minutes and college campus police (colleges you've heard of) who could be incredibly unprofessional -- one threatened, and I mean angrily threatened, that if I didn't produce the credentials immediately (I stood my ground for a warrant, it was basically cyberstalking) they would "show up at my office". I said they were welcome, I'd make the coffee, and got in touch with the university's general counsel. I could post that interchange but as you can imagine they were horribly embarrassed.
Why not get someone from an LEA or two involved even informally rather than speculate?
So much of this is in the name of law enforcement yet my impression is that law enforcement per se hasn't been engaged.
A DA wouldn't hurt either since they have to build the cases and wield the prosecutorial discretion which is really what you're ultimately trying to support.
Sorry, I'll go back to lurking.
-- -Barry Shein
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