Thanks to Tapani, Michele, Theo and others -- appreciated, especially on a Friday evening for you! However, I think some others have found that unless you are within the borders of the EU, you are not a data subject, which mirrors the "Right to be Forgotten" -- you have to be a Data Subject for that right to apply, yes?. (And, I think that the GDPR only applies to Data Subjects.) Let me outline why I think your analysis is not correct:
I'm open to hearing something different and being wrong here, but look at it this way: I'd ask whether I, as a US citizen and resident, would have standing to file a complaint with a DPA if (only using you as an example here, Michele) I registered a domain name with Blacknight and felt that they violated my privacy rights under the GDPR. After all:
  • The EU GDPR page says "Rights for citizens." Am I a citizen? This website, too, talks about my rights under the GDPR as an "EU Citizen." 
  • This EU GDPR page says that the (GDPR) rights "apply across the EU." So...I'm not in the EU. Doesn't that mean I don't have GDPR rights?
  • This EU GDPR page tells me to "contact my DPA." Who...is my DPA?
  • I can claim compensation under my GDPR rights by filing a complaint "before the courts of the EU Member State of your habitual residence." (As well as the processor's country's DPA.) Can anyone tell me which EU Member State handles complaints for residents of Oregon, in the United States? Netherlands? Luxembourg? Ireland? Who?
I think you would all clearly agree: I don't, as a US citizen, have rights under the GDPR because...I'm not a Data Subject. I don't have what's known as "standing" to file a complaint, do I? Which means: the GDPR does not apply to me, which means...you, as a registrar, do not need to offer me GDPR protections. After all, it would be non-sensical to say that as a US citizen using your services, I have the right to GDPR protections but have no mechanism to enjoy their enforcement should you refuse to provide me those protections.

Clear?

John Horton
President and CEO, LegitScript


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On Fri, Feb 16, 2018 at 1:17 PM, Ayden Férdeline <icann@ferdeline.com> wrote:
Hi Paul,

As best I am aware, the GDPR refers to "data subjects" and "natural persons". Where does it define these persons as only being individuals who reside in the EU?

Ayden 


-------- Original Message --------
On 16 February 2018 10:10 PM, Paul Keating <paul@law.es> wrote:

Yes BUT it applies ONLY to the collection and processing of the PDI of individuals residing in the EU.

Sent from my iPad

On 16 Feb 2018, at 21:51, Michele Neylon - Blacknight <michele@blacknight.com> wrote:

John

 

Article 3, as referenced by Tapani, makes it very clear to me:

“1. This Regulation applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union, regardless of whether the processing takes place in the Union or not”

 

Regards

 

Michele

 

--

Mr Michele Neylon

Blacknight Solutions

Hosting, Colocation & Domains

Direct Dial: +353 (0)59 9183090

-------------------------------

Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty

Road,Graiguecullen,Carlow, R93 X265

,Ireland  Company No.: 370845

From: John Horton <john.horton@legitscript.com>
Date: Friday 16 February 2018 at 20:02
To: Michele Neylon <michele@blacknight.com>
Cc: "benny@nordreg.se" <benny@nordreg.se>, RDS PDP WG <gnso-rds-pdp-wg@icann.org>
Subject: Re: [gnso-rds-pdp-wg] Krebs On Security article RE whois and GDRP

 

 

Let me clarify my question, and feel free to defer the answer if next week is better. I'm asking if registrars have received specific guidance, or can point to anything specific in the GDPR or any written document, indicating that you have to provide GDPR protections to all of your customers, even if they aren't in scope. In other words, I'm looking for a very clear statement along these lines from a DPA:

 

As an EU company, even if your customer is a natural person in the US, you must provide them the same rights under the GDPR that an EU natural person would receive. Failure to do so is non-compliant with the GDPR. 

 

Obviously, the exact wording my differ, but I'm trying to challenge your statement that "As an Irish company all our clients have to be handled under GDPR." If that's true as a legal requirement, I think it's important for the security/compliance community to be aware of that...if it's not, perhaps that opens up some more granular approaches that can satisfy both sides. 


John Horton
President and CEO, LegitScript

https://docs.google.com/uc?export=download&id=0B13GfLt8zwZJRXE5UTAtclVxdTg&revid=0B13GfLt8zwZJSG9zOUVwN1lFKzFrRVlnaWU0NGZ4RmdkUjg4PQ

 

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On Fri, Feb 16, 2018 at 11:53 AM, Michele Neylon - Blacknight <michele@blacknight.com> wrote:

John

 

Of course you would wait until a Friday evening to ask me this ..

 

Anyway ..

 

As a company in the EU we have to do everything through the lens of GDPR.


That does not mean that a company will get the same treatment as a private individual.

 

What it does mean is that we (and other EU based registrars and registries) have to consider whether or not there is personal information in the currently public whois information. I’m not 100% sure yet what the best way of dealing with that is.
While we can ask new clients things during signup, it’s going to be significantly harder to get a response from the existing ones.

 

Regards

 

Michele

 

 

--

Mr Michele Neylon

Blacknight Solutions

Hosting, Colocation & Domains

Direct Dial: +353 (0)59 9183090

-------------------------------

Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty

Road,Graiguecullen,Carlow, R93 X265

,Ireland  Company No.: 370845

From: John Horton <john.horton@legitscript.com>
Date: Friday 16 February 2018 at 19:28
To: Michele Neylon <michele@blacknight.com>
Cc: "benny@nordreg.se" <benny@nordreg.se>, RDS PDP WG <gnso-rds-pdp-wg@icann.org>
Subject: Re: [gnso-rds-pdp-wg] Krebs On Security article RE whois and GDRP

 

 

Let me dig in a bit on one question there -- actually curious about this. You indicated "As an Irish company all our clients have to be handled under GDPR." So, for example, let's say that I transferred my company's domain name (obviously, we're a legal person, and we're domiciled in the US and registered here) to Blacknight. I think you'd agree we're not the intended beneficiary of the GDPR. My specific question for you is: Is there written guidance somewhere indicating that you do, in fact, have to provide me GDPR protections? That your policies have to apply to me? If there's some language out there specifically indicating that, it would be helpful to see that. I didn't see that in the Hamilton memo (perhaps I'm missing it) nor in the text of the GDPR (but again, perhaps I'm missing it). Let me know if my question doesn't make sense. 


John Horton
President and CEO, LegitScript

https://docs.google.com/uc?export=download&id=0B13GfLt8zwZJRXE5UTAtclVxdTg&revid=0B13GfLt8zwZJSG9zOUVwN1lFKzFrRVlnaWU0NGZ4RmdkUjg4PQ

 

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On Fri, Feb 16, 2018 at 11:15 AM, Michele Neylon - Blacknight <michele@blacknight.com> wrote:

John

 

There are two distinct discussions here which seem to be getting mixed together.

 

During the proxy / privacy discussion some people wanted there to be a distinction between who could avail of proxy / privacy services. Some wanted a prohibition on letting “commercial” have the ability to use proxy / privacy.

 

The discussions here and elsewhere around collection and publication of data in light of GDPR are very different.

 

Nobody is disputing that there is a distinction between private individuals and corporations when it comes to GDPR. However there are risks associated with the processing of personal information, which may be tied into corporate information. And the “commercial” vs “non-commercial” distinction won’t work.

 

Where there is a clear difference is between treatment of registrants based on geography.

As an Irish company all our clients have to be handled under GDPR. The same would be true of any other provider based in the EU.

 

I cannot speak to nor will I get involved in debates around what various non-EU based operators may currently be doing or plan to do in the future – there are enough of them on this list who can do so more ably than I and without my help.

 

Regards

 

Michele

 

 

--

Mr Michele Neylon

Blacknight Solutions

Hosting, Colocation & Domains

Direct Dial: +353 (0)59 9183090

-------------------------------

Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty

Road,Graiguecullen,Carlow, R93 X265

,Ireland  Company No.: 370845

From: gnso-rds-pdp-wg <gnso-rds-pdp-wg-bounces@icann.org> on behalf of John Horton via gnso-rds-pdp-wg <gnso-rds-pdp-wg@icann.org>
Reply-To: John Horton <john.horton@legitscript.com>
Date: Friday 16 February 2018 at 18:54
To: "benny@nordreg.se" <benny@nordreg.se>
Cc: RDS PDP WG <gnso-rds-pdp-wg@icann.org>
Subject: Re: [gnso-rds-pdp-wg] Krebs On Security article RE whois and GDRP

 

 

I predict you'd see (I'm not speaking for anyone here, just me) a real willingness on the security and compliance community's part to compromise and support a system where, IF a registrant is an EU natural person (yes, I know we need to define it accurately -- citizen, resident, we can get granular later) then...hey, let's set up a system in involving redaction of some fields, access to those fields in legitimate cases, etc. I want to support registrars' compliance with the GDPR. But we're seeing the registrar community say: We want to apply this globally. To all domain name registrations. Doesn't matter if the registrant is the intended beneficiary of the new law, or in scope, or not. We're going to just change global policy.

 

I think that viewpoint has been pretty repeatedly represented in this working group, but I'd love to hear from registrars that would support a more targeted solution where only the intended beneficiaries of the GDPR (that is, in-scope registrants) are covered under the policy. 


John Horton
President and CEO, LegitScript

https://docs.google.com/uc?export=download&id=0B13GfLt8zwZJRXE5UTAtclVxdTg&revid=0B13GfLt8zwZJSG9zOUVwN1lFKzFrRVlnaWU0NGZ4RmdkUjg4PQ

 

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On Fri, Feb 16, 2018 at 10:44 AM, benny@nordreg.se <benny@nordreg.se> wrote:

Please refer to where registrars have been unwilling to explore this option?



--
Med vänliga hälsningar / Kind Regards / Med vennlig hilsen

Benny Samuelsen
Registry Manager - Domainexpert

Nordreg AB - ICANN accredited registrar
IANA-ID: 638
Phone: +46.42197000
Direct: +47.32260201
Mobile: +47.40410200

> On 16 Feb 2018, at 19:38, John Horton via gnso-rds-pdp-wg <gnso-rds-pdp-wg@icann.org> wrote:
>
> Just imagine how much of all of this could be avoided if registrars were willing to agree to a commercial/individual distinction.
>
> John Horton
> President and CEO, LegitScript
>
>
> Follow LegitScript: LinkedIn  |  Facebook  |  Twitter  |  Blog  |  Newsletter
>
>
>

> On Fri, Feb 16, 2018 at 10:33 AM, John Bambenek via gnso-rds-pdp-wg <gnso-rds-pdp-wg@icann.org> wrote:
> GDPR taken to its logical extreme very well could require us to abandon IP reputation and to emptying our firewalls. I mean, no consumer authorized me to process their IP just by attacking me, right?
>
> Privacy absolutism is not the answer unless you basically want to mandate the internet backbone be converted to tor.
>
> --
> John Bambenek
>
> On Feb 16, 2018, at 06:09, Michele Neylon - Blacknight <michele@blacknight.com> wrote:
>
>> It’s an interesting read, but it has several flaws.
>>
>> It refers to registrars solely and ignores registries.
>>
>> It also makes it sound like issues around whois are “new”, which we all know isn’t true.
>>
>> The comments about IP addresses make it sound like it’s a theoretical concern, yet there is case law eg:
>>
>> https://www.irishtimes.com/business/technology/european-court-of-justice-rules-ip-addresses-are-personal-data-1.2835704
>>
>>
>>
>>
>>
>>
>>
>> --
>>
>> Mr Michele Neylon
>>
>> Blacknight Solutions
>>
>> Hosting, Colocation & Domains
>>
>> https://www.blacknight.com/
>>
>> http://blacknight.blog/
>>
>> Intl. +353 (0) 59 9183072
>>
>> Direct Dial: +353 (0)59 9183090
>>
>> Personal blog: https://michele.blog/
>>
>> Some thoughts: https://ceo.hosting/
>>
>> -------------------------------
>>
>> Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty
>>
>> Road,Graiguecullen,Carlow,R93 X265,Ireland  Company No.: 370845
>>
>> From: gnso-rds-pdp-wg <gnso-rds-pdp-wg-bounces@icann.org> on behalf of Dotzero <dotzero@gmail.com>
>> Date: Friday 16 February 2018 at 00:07
>> To: RDS PDP WG <gnso-rds-pdp-wg@icann.org>
>> Subject: [gnso-rds-pdp-wg] Krebs On Security article RE whois and GDRP
>>
>>
>>
>>
>> https://krebsonsecurity.com/2018/02/new-eu-privacy-law-may-weaken-security/
>>
>> Michael Hammer
>>
>> _______________________________________________
>> gnso-rds-pdp-wg mailing list
>> gnso-rds-pdp-wg@icann.org
>> https://mm.icann.org/mailman/listinfo/gnso-rds-pdp-wg
>
> _______________________________________________
> gnso-rds-pdp-wg mailing list
> gnso-rds-pdp-wg@icann.org
> https://mm.icann.org/mailman/listinfo/gnso-rds-pdp-wg
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> _______________________________________________
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> gnso-rds-pdp-wg@icann.org
> https://mm.icann.org/mailman/listinfo/gnso-rds-pdp-wg

 

 


 

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