From: gnso-rds-pdp-wg-bounces@icann.org [mailto:gnso-rds-pdp-wg-bounces@icann.org] On Behalf Of Vayra, Fabricio (Perkins Coie)
Sent: Wednesday, June 15, 2016 10:50 AM
To: Gomes, Chuck <cgomes@verisign.com>; Ayden Férdeline <icann@ferdeline.com>; Susan Kawaguchi <susank@fb.com>
Cc: gnso-rds-pdp-wg@icann.org
Subject: Re: [gnso-rds-pdp-wg] RDS 5 Charter questions

I agree with Susan. There’s a reason the charter was written as is and to change it unwinds the charter without the benefit of the thoughtful work and deliberations that went into it. Moreover, leaving access and accuracy out of the discussion until the end has us making decisions in a vacuum. And, finally, I’m not sure how you divorce Users/Purposes, Privacy, and Data elements from Access and Accuracy, as the latter two are a constant and vital reference within all documents I’ve reviewed on the former three … so to separate these two topics out until later just sets us up for unnecessary grid-lock when we have to revisit the first three topics through the interrelated latter two topics of Access and Accuracy.

Thanks,

Fabricio Vayra

PARTNER

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E. FVayra@perkinscoie.com

From: gnso-rds-pdp-wg-bounces@icann.org [mailto:gnso-rds-pdp-wg-bounces@icann.org] On Behalf Of Gomes, Chuck
Sent: Wednesday, June 15, 2016 9:21 AM
To: Ayden Férdeline; Susan Kawaguchi
Cc: gnso-rds-pdp-wg@icann.org
Subject: Re: [gnso-rds-pdp-wg] RDS 5 Charter questions
Importance: High

Thanks for continuing the discussion on the approach to reaching consensus. I strongly encourage others to express your opinion on that along with your rationale: 1) Should we leave our work plan as is or 2) should we change it from two issue reports to three issue reports with the first one following deliberation on the user/purpose, privacy/data protection and data element questions?

I appreciate the time you took to explain your position but note that much of what you said gets into what we will discuss in our future deliberations so I ask everyone to not go there yet but instead focus on commenting on the approach to reaching consensus. Our goal is to finalize that approach in our meeting next week.

Chuck

From: Ayden Férdeline [mailto:icann@ferdeline.com]
Sent: Wednesday, June 15, 2016 6:54 AM
To: Susan Kawaguchi
Cc: gnso-rds-pdp-wg@icann.org; Gomes, Chuck
Subject: Re: [gnso-rds-pdp-wg] RDS 5 Charter questions

Hi Susan,

Thanks for sharing these reflections. I understand the desire not to complicate this task. As someone who is new to the ICANN community and its approach to policy-making – and, also, someone who is an advocate of privacy – it would seem to me that all the costs and burdens associated with rallying against an open-access Registration Directory Service have been put on some stakeholders, while proponents of the status quo profit from the lack of consensus or inertia on a different path forward. I say this not to demonise any views, but to clarify that I do indeed share your perspective that we don’t want to be permanently gridlocked here.

This is actually why my preference would be to go down the path that was suggested on our call yesterday – from what I recall, it would mean three opportunities for public comment, and a mandate to focus our energies on understanding Users/Purposes, Privacy, and Data Elements before we consider whether or not gated access is necessary or whether or not records should be accurate. It seems a little premature to me to consider the latter points when we have not yet established if there is a basis for collecting registration data in the first place. I share your point, though, that we should be distinguishing between individuals and commercial entities – which is not to presuppose that there ultimately will be a need for variations in treatment if the RDS is warranted.

We can make our work easier, however. If we decide upon a standard by which to assess whether or not the RDS complies with, say, data privacy laws, we might have a more straightforward exercise ahead. And on that point I would like to note that just because the Internet originated in the US and its governance framework has been historically dominated by US-based actors does not mean we should by default turn to US law for contextual protections or principles. I would like to respectfully suggest that European instruments such as the European Convention on Human Rights, standards set by the European Union Data Protection Directive, and Convention 108 of the Council of Europe might be helpful starting points. These are not obscure laws or conventions which apply to no one: the EU population is over 500 million people, far greater than that of the US.

I am not a lawyer and I do not come at this topic with the same institutional knowledge that others do have. I do not know all the details or decisions that have led us to this point where, it would seem, the (political) cost to move away from the current default is so very high. I say this to be clear, from the onset, that I might well be misinformed or wrong about how we move forward in this working group. However, it is my view that just because the Internet is by nature cross-border does not mean that it should be treated as a self-governing realm beyond the reach of national laws. WHOIS today, to me, seems to subvert and/or undermine domestic norms and institutions in many territories worldwide. I don’t want to get into the question of sovereignty online, but it would be helpful to at least establish whether or not we believe ICANN should mandate through its contracts with registrars that they comply with local legal regulations, or whether we instead believe that market forces should be driving fundamental decisions about the nature of the Internet.

You can probably guess my position here, but I’d like to think we can reach some common ground. What are we more concerned about – the rights of the data subject and controller, or the rights of those who wish to monetise it? To come up with, like we have, a list of something like 780 possible requirements for the RDS strikes me as a recipe for disaster. It seems inevitable that we will accidentally impose huge costs on some stakeholder groups – the unintended consequence of trying to achieve some short-term policy goal not to do with any functional imperative of the Internet itself, but to meet someone’s obscure interest. That’s why I want to hammer down on what data is being collected, why it is being used, and what are the implications for privacy before we proceed any further.

Just my $0.02.

- Ayden

On Tue, Jun 14, 2016 10:51 PM, Susan Kawaguchi susank@fb.com wrote:

Hello All,

I have been thinking about the RDS discussion from this morning’s meeting and wanted to clarify my personal position (not as a vice chair of the WG) I think we will complicate our task if we initially limit the discussion to three of the charter questions relating to users/purposes, privacy and data elements. Much thought went into drafting the charter and brainstorming how a WG should approach deliberations.

Users/Purposes

Privacy

Data elements

Access

Accuracy

All of the above are very interrelated and I can’t imagine that we can sufficiently discuss one or two without the others.

One other issue that comes to mind is that we must keep in mind PII data but we also have to be wary of creating requirements that convey data protection rights of individuals to commercial entities. For each of the topics above we need to address how it would affect an individual or a commercial entity.

I think we should move forward with the original plan according to the Charter and discuss all 5 issues in the first pass.

Susan Kawaguchi

Domain Name Manager

Facebook Legal Dept.

Ayden Férdeline

Statement of Interest

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