@EXT RE: @EXT: RE: Use cases: Fundamental, Incidental, and Theoretical
Dear Stephanie and Ayden, Thank you for your contributions and interesting comments on the alleged lack of efficacy of Europol’s data protection framework. You raised several possible concerns that I would like to respond to so that WG members have a clearer understanding the strict data protection framework Europol operates with. I would also like to thank you for bringing up the European Parliament’s report on the US NSA surveillance and invite you to take the time to read its conclusions concerning Europol. On p.33 of that report the European Parliament - known for being a staunch advocate of strong data protection rules - called twice to increase Europol’s competencies: • It called for “Europol's mandate to be enhanced in order to allow it to initiate its own investigation following suspicion of a malicious attack on the network and information,” • It called the Commission “to review the activities of Europol's European Cybercrime Centre (EC3) and, if necessary, put forward a proposal for a comprehensive framework for strengthening its competences.” This report was adopted by an overwhelming majority of members of the European Parliament (544/70). This shows that contrary to your understanding, EU politicians have not been reluctant to expand Europol’s mandate “given concerns around effectiveness and a perceived democratic deficit”. In this report the Parliament also called on the “Europol Joint Supervisory Body (JSB), together with national data protection authorities, to conduct a joint inspection before the end of 2014 in order to ascertain whether information and personal data shared with Europol have been lawfully acquired by national authorities, particularly if the information or data were initially acquired by intelligence services in the EU or a third country, and whether appropriate measures are in place to prevent the use and further dissemination of such information or data.” You will find here the JSB Data Protection Inspection Report published in 2014 in response to the Parliament call. The JSB report looked in particular at the obligation of Europol not to process any information or data which were obtained in violation of fundamental rights which should be protected under the Charter of Fundamental Rights. If I understood correctly, this is one of the concerns you both raised. In the conclusion of the inspection report, the JSB states that: it "did not find any information indicating that data was obtained in violation of human rights or not in compliance with the national law of the contributing States or international organisations.” It also notes that: “Europol has sufficient procedural measures in place to ensure that the incoming data to Europol is checked for compliance with the legal provisions before its input in the system.” (p.16). Unlike what was said earlier, the JSB does not simply “complain” to the Director but it has the possibility to send reports directly to the European Parliament and to the Council of Ministers (art 34.6 ECD) - the very same institutions which decide on Europol’s budget and competences. The JSB is fully independent. It is composed of representatives from each national data protection supervisory authorities. It has its own Secretariat, based in Brussels, while Europol is in The Hague. It gets invited to testify in front of the European Parliament several times per year. The JSB must be consulted before the creation of any new system to process personal data and at every stage of its development. It is also requested to provide opinion on the draft cooperation agreements between Europol and third States.The JSB has access to all information processed at Europol and every single processing act is logged. These audit logs are entirely and accessible to the JSB inspectors who visit Europol 2 or 3 times per year for inspection visits. According to a statement of the Chair of the Joint Supervisory Body of Europol, “Europol has recognized the importance of data protection, not just as necessary element of meeting its human rights obligations, but also a means of providing reassurance to contributing Member States”. I hope that the above information clarifies the JSB’s enforcement powers and the procedures that ensures that Europol respects its data protection obligations and processes information in full compliance with EU data protection laws. @Ayden: We all appreciate your enthusiasm and dedication to this PDP and nobody is contesting your right to question authority or the efficacy of oversight of police data protection compliance. So, please keep up your good and constructive work in our WG and feel free to ask questions if you do not understand Europol's legal framework or if you suspect there may be data protection weaknesses. Kind regards, Greg M. ________________________________ From: gnso-rds-pdp-wg-bounces@icann.org on behalf of Stephanie Perrin Sent: 20 August 2016 01:23:36 To: Greg Shatan Cc: RDS PDP WG Subject: Re: [gnso-rds-pdp-wg] @EXT: RE: Use cases: Fundamental, Incidental, and Theoretical I beg your pardon, I was referring to the discussion between Greg and Ayden, not Chuck's intervention. this is of course a comment on the comment.....but not on the other comment. Stephanie On 2016-08-19 19:20, Greg Shatan wrote: I did not find Chuck's comments in any way "accusatory." If anything, I found them well-considered and admirable in their restraint. If anything, Chuck's intervention may have prevented "accusatory" comments from making their way to the list. As such, I would suggest that Chuck's comments were an exercise in "de-escalation." In that vein, I will refrain from commenting on comments, or commenting on comments about comments or commenting on comments about comments about comments, though if I wanted to comment on comments or comments on comments or comments on comments on comments, I would have comments to make. But I won't. Greg On Fri, Aug 19, 2016 at 7:08 PM, Stephanie Perrin <stephanie.perrin@mail.utoronto.ca<mailto:stephanie.perrin@mail.utoronto.ca>> wrote: Gentlemen, with great respect, I think you are being a bit hard on Ayden here. If, as our next-gen rep here on the group, he were not questioning authority, I might be afraid he had somehow "missed the memo". I think the tone has become a bit accusatory on both sides and we should de-escalate. I agree that we must be exceedingly careful about putting words in each others mouths. However, questioning the efficacy of oversight of police data protection compliance is fair game in my view and in the view of most privacy scholars (Korff, Brown, Bennett and Raab, Anderson etc.). Diana Alonso Blass (who came to ICANN in 2003 or 04 representing the Article 29 Working Party) and now of Eurojust speaks regularly on some of these issues at the data protection commissioners' annual conference and at CPDP and there can be heated debate. Oversight of law enforcement, particularly cross border law enforcement, is difficult just as the actual law enforcement is difficult. There are many reasons for this: * law enforcement authorities have (legitimate) exemptions under data protection law for collection use and disclosure, making it easy to accidently abuse that discretion * Data protection authorities frequently choose to direct enforcement actions in other areas, given the constant shortage of resources and the publicity (reaching political uproar at times) that can come with enforcement against police * governments often take a dim view of data protection commissioners who go after the police (I can cite examples if you wish but I realize noone wants to read an article on the difficulties of dp oversight of law enforcement Some of the European DP authorities testified in the 2014 inquiry into NSA surveillance....I realize this is about intelligence, but certainly Europol and cybercrime were mentioned. http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A.... Given the global nature of law enforcement in our subject area, and the perceived failure of certain instruments such as the Cybercrime treaty, and the general shock and outrage expressed during the inquiry I just cited, particularly over cross border data sharing, I think it is reasonable to question assertions of compliance with data protection law. You will find the list of witnesses in the appendix. Jacob Kohnstamm was one of them, as was Peter Hustinx, and let me finally remind you of my favorite quote from Kohnstamm 's 2012 letter to Crocker: “The Working Party strongly objects to the introduction of data retention by means of a contract issued by a private corporation in order to facilitate (public) law enforcement. If there is a pressing social need for specific collections of personal data to be available for law enforcement, and the proposed data retention is proportionate to the legitimate aim pursued, it is up to national governments to introduce legislation that meets the demands of article 8 of the European Convention on Human Rights and article 17 of the International Covenant on civil and Political rights”. (Kohnstamm to Crocker and Atallah, 26 September 2012). The bottom line here is that civil society correctly has questions about the efficacy of oversight. Please don't take it personally, it is not meant that way. It is our job to question. I would agree that Europol has an excellent oversight regime, in comparative terms, (I wish we had it in North America) but that does not mean it works all the time. While we are not here to criticize particular countries or regions, please admit the idea of criticism in general. It is important. Stephanie Perrin On 2016-08-18 18:55, Gomes, Chuck wrote: Ayden, I appreciate your frequent contributions because you share some important concerns. But I want to communicate some concerns I have about how you are doing that. Please see my comments below. Chuck From: gnso-rds-pdp-wg-bounces@icann.org<mailto:gnso-rds-pdp-wg-bounces@icann.org> [mailto:gnso-rds-pdp-wg-bounces@icann.org] On Behalf Of Ayden Férdeline Sent: Thursday, August 18, 2016 4:48 PM To: Mounier, Grégory Cc: RDS PDP WG Subject: Re: [gnso-rds-pdp-wg] @EXT: RE: Use cases: Fundamental, Incidental, and Theoretical Hi Greg, I don’t mean to sound provocative, however I would like to make sure I am interpreting your comments correctly. Please see inline below. Thanks, Ayden -------- Original Message -------- Subject: @EXT: RE: Use cases: Fundamental, Incidental, and Theoretical Local Time: August 18, 2016 7:00 PM UTC Time: August 18, 2016 6:00 PM From: gregory.mounier@europol.europa.eu<mailto:gregory.mounier@europol.europa.eu> To: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> icann@ferdeline.com,gnso-rds-pdp-wg@icann.org<mailto:icann@ferdeline.com,gnso-rds-pdp-wg@icann.org> Yes Greg: unlike what Ayden seems to imply: • Europol is not advocating that personal information be processed in a manner inconsistent with European law; I am pleased to hear this. However, it the opinion<https://secure.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Co...> of the European Commission’s own Data Protection Supervisor that the data retention requirements contained with the 2013 RAA and the Draft Specification “continue to fall short of compliance with European data protection law.” You have built a use case around how the WHOIS protocol operates today, which itself contains data sourced from registrars through practices which are inconsistent with the privacy laws of many (all?) EU Member States. [Chuck Gomes] Greg did not say that the 2013 RAA is compliant with European law; he only said Europol is. • Europol access and processing of WHOIS information is in line with European Data protection rules; I am glad that this is the case. Could you please expand upon how, under what circumstances, and how frequently Europol currently retrieves WHOIS records? [Chuck Gomes] This is a terribly broad request and one that I suspect may be very difficult to respond to. Europol is not the topic of discussion . Insight they can provide will be helpful when we deliberate just like your insights. In all cases we will do our best to validate information we use. • Europol does not “trawl” the WHOIS; Are you saying, then, that you do not find the WHOIS protocol useful in solving crime? If you are not collecting its records in bulk, I would suggest that we revise your use case of 25 July to reflect this reality. [Chuck Gomes] He did not say that. I encourage you to avoid adding to what he said. We should remove the reference to “Python DNS scripts or domain tool API” being utilised to identify connections between DNS information and potentially troublesome websites, and replace it with something which respects the right to, say, due process. [Chuck Gomes] Please remember that our objective is not to create perfect use cases. After all, illegal content like child abuse material (which you flagged in your use case) is just that – illegal. Illegal material should be dealt with in a legal manner. You should not be advocating for the circumvention of the rule of law; to do so is a direct violation of the human rights standards that Europol has committed itself to upholding. [Chuck Gomes] Who is advocating for the “the circumvention of the rule of law”? I think that the implication you make here is inappropriate. • Europol is indeed subject to one of the most stringent data protection framework in the LEA world. Whether that is reality or rhetoric, I do not know. My gut feeling is that Europol’s data protection provisions are comprehensive in theory, but critically undermined by procedural weakness. One example that comes to mind: the Europol Joint Supervisory Body is the independent body which supposedly monitors your adherence to data protection rules. However, it has no powers of enforcement, it can only “make any complaints it deems necessary to the Director” of Europol. [Chuck Gomes] I think it best if you avoid criticizing specific organizations and stick to issues. I’ll stop here because this is only partially relevant to this PDP. My understanding has been that some politicians in the EU have been reluctant to expand Europol’s remit/mandate, given concerns around effectiveness and a perceived democratic deficit, so it is fascinating to me to see Europol working to expand its powers and data collection abilities in working groups such as this one. [Chuck Gomes] Once again I think you are concluding more than is reasonable and also don’t find you comment here constructive. Best Greg From: Greg Shatan [mailto:gregshatanipc@gmail.com] Sent: 18 August 2016 19:49 To: Mounier, Grégory Cc: Ayden Férdeline; RDS PDP WG Subject: Re: [gnso-rds-pdp-wg] @EXT: RE: Use cases: Fundamental, Incidental, and Theoretical Greg, For the rest of us who may not be so well informed, is there something more we should understand and take into account in considering this particular back-and-forth? Thanks! Greg Shatan On Thu, Aug 18, 2016 at 1:45 PM, Mounier, Grégory <gregory.mounier@europol.europa.eu<mailto:gregory.mounier@europol.europa.eu>> wrote: Dear Ayden, I objected because some of your statements were misinformed so I thought that I should help and clarify. But it seems that you are very well informed and that you don’t need further explanations :) Best regards, Greg From: Ayden Férdeline [mailto:icann@ferdeline.com<mailto:icann@ferdeline.com>] Sent: 18 August 2016 19:27 To: Mounier, Grégory Cc: Rob Golding; RDS PDP WG Subject: Re: @EXT: RE: [gnso-rds-pdp-wg] Use cases: Fundamental, Incidental, and Theoretical Thank you for the response, Greg. I did not mean to suggest that Europol was whollyexempt from European data protection regulations, because it is not. In my original message, I wrote: "...your agency is exempt from some of the general provisions on data processing." I have bolded the word ‘some’ on this occasion for emphasis. When I wrote that Europol had exemptions from someof the general provisions on data processing, I was referring to the Europol Council Decision as published in the Official Journal of the European Union on 15 May 2009. I am sure you are intimately familiar with this document, as you cited it in your email to me today as providing the “basis for Europol to establish and maintain cooperative relations with Union or Community institutions, bodies, offices and agencies; third States and organisations; private parties and private persons in so far as it is relevant to the performance of its tasks.” Aside from this, this decision contains data processing rules which were, to quote you again in your email, "tailor-made" for Europol, and is complemented by a set of implementation guidelines which privilege Europol with the ability to process personal data “for the purpose of prevention, investigation, detection and prosecution of criminal offences or the execution of criminal penalties” in a manner that would not be permitted of other stakeholders. Given this, I'm unsure as to why you found my comments so objectionable, but I hope this email has brought about some more clarity. If not, I am happy to expand upon my thoughts. Thanks, Ayden -------- Original Message -------- Subject: @EXT: RE: [gnso-rds-pdp-wg] Use cases: Fundamental, Incidental, and Theoretical Local Time: August 18, 2016 5:54 PM UTC Time: August 18, 2016 4:54 PM From: gregory.mounier@europol.europa.eu<mailto:gregory.mounier@europol.europa.eu> To: icann@ferdeline.com<mailto:icann@ferdeline.com> rob.golding@astutium.com,gnso-rds-pdp-wg@icann.org<mailto:rob.golding@astutium.com,gnso-rds-pdp-wg@icann.org> Dear Ayden, Thank you very much for sharing your concerns and apologies for the late response, I was away from the office. I am not sure how you got the perception that Europol was “trawling” through WHOIS records or that Europol was “exempt from some of the general provisions on data processing” or even that our legal framework limited the ability of Europol staff to process data from publicly available sources related to “terror manuals” or “criminals claiming credit for attacks”. In fact, I can assure you that Europol is not exempted from the general provisions on data protection. European data protection legislation has been implemented in the organisation with the aim of creating a legal framework which balances the fundamental interests of freedom and security. The tailor-made set of rules provides Europol with one of the strongest, most robust data protection framework in the world of law enforcement. As far as data exchange inside the EU is concerned, Art.22-25 of Europol Council Decision (ECD) provides a basis for Europol to establish and maintain cooperative relations with Union or Community institutions, bodies, offices and agencies; third States and organisations; private parties and private persons in so far as it is relevant to the performance of its tasks. Europol exchanges personal data only with third parties which have an adequate level of data protection. The prior data protection assessment of the third party involves a check on the necessary data protection legislation and confidentiality rules in place and in practice. The list of the third countries with which Europol has established an operational agreement is published on our website. In addition, Europol can receive information from private parties such as companies, business associations or non-profit organisations. As with any transfer of personal data, this process is subject to data protection controls. Last but not least, in line with the respective provisions of the ECD, Europol can also retrieve and process data, including personal data, from publicly available sources, such as media and public data and commercial intelligence providers, in accordance with the data protection framework. I hope that I could clarify some of the issues you raised. Kind regards, Greg From: Ayden Férdeline [mailto:icann@ferdeline.com] Sent: 08 August 2016 14:11 To: Mounier, Grégory Cc: Rob Golding; RDS PDP WG Subject: Re: [gnso-rds-pdp-wg] @EXT: RE: Use cases: Fundamental, Incidental, and Theoretical Greg, I am disappointed that Europol seems to be advocating that personal information be processed in a manner inconsistent with European law. I fully appreciate that, in order to allow Europol to collect sensitive information from the Member States in the pursuit of investigations, your agency is exempt from some of the general provisions on data processing. You are permitted to directly retrieve and process information obtained from publicly-available sources, but the promotional literature on the Europol website suggests Europol agents searching for publicly-available ‘terror manuals’ or criminals claiming credit for attacks. There is no indication that this includes Europol trawling through things like WHOIS records to identify the administrator of a website, something far less sinister. And if the RDS evolves into something very different from what it is today – perhaps not open to any and everyone to query, or federated into a single data store – my understanding is that the routing of information from a private party to Europol would be subject to European data protection controls and safeguards. The very specific exemptions that Europol has received in order to carry out its work simply do not call for Europol to advocate for a lower standard of privacy protection for European residents in privately-owned or publicly-accessible sources of information. There is no doubt that effective police work requires top intelligence, but equally as important is the employment of sound data protection safeguards which strike an appropriate balance between the interests of freedom and security. Just my $0.02. - Ayden [https://app.mixmax.com/api/track/v2/PsCAAXCzeb1f72NwN/i02bj5SZulGblRmclZGQu5...] On Thu, Aug 4, 2016 1:59 PM, wrote: Dear Rob, Thanks for sharing the outcome of your chat with ex-FBI and UK LEA agents. I feel that I need to step in to provide a different perspective than the one you just gave on the law enforcement use of the WHOIS. It might be a matter of interpretation but the views expressed by your interlocutors are not shared by my colleagues working throughout European police cyber divisions. If European cyber investigators are obviously all aware of the fact that WHOIS registration data can sometime be inaccurate and not up-to-date (ICANN compliance reported that for the first quarter of 2015, WHOIS inaccuracy comprised 74.0 % of complaints), in 90% of cases they will start their investigations with a WHOIS lookup. This is really the first step. Despite the lack of accuracy, WHOIS information is useful in so many different ways. One of the first them is to make correlations and link pieces of information obtained through other means than from the WHOIS. This was the point I tried to make on Tuesday during the conference call. Accurate and reliable WHOIS data helps crime attribution and can save precious investigation time (you can rule out wrong investigative leads). It raises the bar and makes it more difficult for criminals to abuse domain names. It pushes them to resort to more complex techniques such as ID theft to register domains for malicious purposes. In short, for LEA WHOIS is certainly not the silver bullet to attribute crime on line but it is an essential tool in the tool box of law enforcement. Best, Greg -----Original Message----- From: gnso-rds-pdp-wg-bounces@icann.org<mailto:gnso-rds-pdp-wg-bounces@icann.org> [mailto:gnso-rds-pdp-wg-bounces@icann.org] On Behalf Of Rob Golding Sent: 04 August 2016 01:46 To: RDS PDP WG Subject: Re: [gnso-rds-pdp-wg] Use cases: Fundamental, Incidental, and Theoretical
Theoretical
===========
We have seen a couple of proposed use cases that seem to be ideas
that people have for useful or harmful ways that RDS can be used, but
that do not exist today (at least not that anyone can fully
document).
For example, there seems to be a desire to use the RDS as a way to
issue warrants for information about registrants. While this may be
useful, this is not possible today (even with RDAP, I note).
It not only is possible today, it's also "common" (although thankfully not frequent) Registrars get served warrants for details about registrants, and the _only_ information from WHOIS that's "needed" or used for such cases is the name of the Registrar. I had the pleasure of meeting Chris Tarbell, ex-FBI Cyber Crime, at HostingCon last week - asked about WHOIS/domain data he said "we dont use it" Last year at the UKNOF event in Sheffield I spent quite some time talking with some amazing people from the UK CyberCrime departments - asked the same questions, they confirmed that although whois _might_ be looked at to see if it matches _data they already have_ for confirmation, it's not used or relied on. Which beggars the question, should "LawEnforcement" use cases even be part of the discussions ? Rob -- Rob Golding rob.golding@astutium.com<mailto:rob.golding@astutium.com> Astutium Ltd, Number One Poultry, London. EC2R 8JR * domains * hosting * vps * servers * cloud * backups * _______________________________________________ gnso-rds-pdp-wg mailing list gnso-rds-pdp-wg@icann.org<mailto:gnso-rds-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rds-pdp-wg ******************* DISCLAIMER : This message is sent in confidence and is only intended for the named recipient. If you receive this message by mistake, you may not use, copy, distribute or forward this message, or any part of its contents or rely upon the information contained in it. Please notify the sender immediately by e-mail and delete the relevant e-mails from any computer. This message does not constitute a commitment by Europol unless otherwise indicated. ******************* _______________________________________________ gnso-rds-pdp-wg mailing list gnso-rds-pdp-wg@icann.org<mailto:gnso-rds-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rds-pdp-wg Ayden Férdeline Statement of Interest<https://community.icann.org/display/gnsosoi/Ayden+F%E9rdeline+SOI> ******************* DISCLAIMER : This message is sent in confidence and is only intended for the named recipient. If you receive this message by mistake, you may not use, copy, distribute or forward this message, or any part of its contents or rely upon the information contained in it. Please notify the sender immediately by e-mail and delete the relevant e-mails from any computer. This message does not constitute a commitment by Europol unless otherwise indicated. ******************* ******************* DISCLAIMER : This message is sent in confidence and is only intended for the named recipient. If you receive this message by mistake, you may not use, copy, distribute or forward this message, or any part of its contents or rely upon the information contained in it. Please notify the sender immediately by e-mail and delete the relevant e-mails from any computer. This message does not constitute a commitment by Europol unless otherwise indicated. ******************* _______________________________________________ gnso-rds-pdp-wg mailing list gnso-rds-pdp-wg@icann.org<mailto:gnso-rds-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rds-pdp-wg ******************* DISCLAIMER : This message is sent in confidence and is only intended for the named recipient. If you receive this message by mistake, you may not use, copy, distribute or forward this message, or any part of its contents or rely upon the information contained in it. Please notify the sender immediately by e-mail and delete the relevant e-mails from any computer. This message does not constitute a commitment by Europol unless otherwise indicated. ******************* _______________________________________________ gnso-rds-pdp-wg mailing list gnso-rds-pdp-wg@icann.org<mailto: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<mailto:gnso-rds-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rds-pdp-wg ******************* DISCLAIMER : This message is sent in confidence and is only intended for the named recipient. If you receive this message by mistake, you may not use, copy, distribute or forward this message, or any part of its contents or rely upon the information contained in it. Please notify the sender immediately by e-mail and delete the relevant e-mails from any computer. This message does not constitute a commitment by Europol unless otherwise indicated. *******************
Please see in-line below in italicised bold. Thanks. - Ayden -------- Original Message -------- Subject: [gnso-rds-pdp-wg] @EXT RE: @EXT: RE: Use cases: Fundamental, Incidental, and Theoretical Local Time: August 22, 2016 8:57 PM UTC Time: August 22, 2016 7:57 PM From: gregory.mounier@europol.europa.eu To: stephanie.perrin@mail.utoronto.ca,gregshatanipc@gmail.com gnso-rds-pdp-wg@icann.org Dear Stephanie and Ayden, Thank you for your contributions and interesting comments on the alleged lack of efficacy of Europol’s data protection framework. You raised several possible concerns that I would like to respond to so that WG members have a clearer understanding the strict data protection framework Europol operates with. I would also like to thank you for bringing up the European Parliament’s report on the US NSA surveillance and invite you to take the time to read its conclusions concerning Europol. Speaking of the NSA and its surveillance programmes, a massive top-secret archive of some of its own exploits was leaked online last week. I mention this because it is evidence that data breaches are impossible to prevent. We should not be collecting data unnecessarily. On p.33 of that report the European Parliament - known for being a staunch advocate of strong data protection rules - called twice to increase Europol’s competencies: • It called for “Europol's mandate to be enhanced in order to allow it to initiate its own investigation following suspicion of a malicious attack on the network and information,” • It called the Commission “to review the activities of Europol's European Cybercrime Centre (EC3) and, if necessary, put forward a proposal for a comprehensive framework for strengthening its competences.” I do not have the time to read that lengthy, 63-page report to respond to the two bullet points you cherry-picked. I have never professed to be an expert on the inner workings of Europol. That is why I have previously requested clarification from you as to under what circumstances, and how frequently, Europol utilises the WHOIS service. You have never responded to these relevant and targeted questions. This report was adopted by an overwhelming majority of members of the European Parliament (544/70). This shows that contrary to your understanding, EU politicians have not been reluctant to expand Europol’s mandate “given concerns around effectiveness and a perceived democratic deficit”. The simple fact that this report was not adopted unanimously suggests that some EU politicians have real and legitimate concerns around expanding Europol’s mandate. In addition, the reality that the European Parliament has consistently advised against the approval of the Europol budget does not suggest to me a vote of confidence in it. In this report the Parliament also called on the “Europol Joint Supervisory Body (JSB), together with national data protection authorities, to conduct a joint inspection before the end of 2014 in order to ascertain whether information and personal data shared with Europol have been lawfully acquired by national authorities, particularly if the information or data were initially acquired by intelligence services in the EU or a third country, and whether appropriate measures are in place to prevent the use and further dissemination of such information or data.” You will find here the JSB Data Protection Inspection Report published in 2014 in response to the Parliament call. The JSB report looked in particular at the obligation of Europol not to process any information or data which were obtained in violation of fundamental rights which should be protected under the Charter of Fundamental Rights. If I understood correctly, this is one of the concerns you both raised. No, the primary concern I raised was with the method through which you are seeking to obtain information. There would be nothing controversial around Europol going to Court and getting a warrant to obtain information about a domain name registrant. But for you to pull personally-identifiable information about a registrant without due process being followed is, in my view, problematic because of the potential here for abuse of power. If it is possible to abuse power, it is safe to bet that somebody will. In the conclusion of the inspection report, the JSB states that: it "did not find any information indicating that data was obtained in violation of human rights or not in compliance with the national law of the contributing States or international organisations.” It also notes that: “Europol has sufficient procedural measures in place to ensure that the incoming data to Europol is checked for compliance with the legal provisions before its input in the system.” (p.16). Such a conclusion is impossible for me, or anyone else in this Working Group, to verify. Unlike what was said earlier, the JSB does not simply “complain” to the Director but it has the possibility to send reports directly to the European Parliament and to the Council of Ministers (art 34.6 ECD) - the very same institutions which decide on Europol’s budget and competences. I have taken the word “complain” from the exact same legislative document you just cited. Article 34.4: “If the Joint Supervisory Body identifies any violations of the provisions of this Decision in the storage, processing or use of personal data, it shall make any complaints it deems necessary to the Director”. The Director is not required to action upon the complaint other than to read it. The JSB is fully independent. It is composed of representatives from each national data protection supervisory authorities. What a pity there are no independent observers. It has its own Secretariat, based in Brussels, while Europol is in The Hague. It gets invited to testify in front of the European Parliament several times per year. Many entities every year are invited to testify before the European Parliament, it is not a special status. The JSB must be consulted before the creation of any new system to process personal data and at every stage of its development. It is also requested to provide opinion on the draft cooperation agreements between Europol and third States.The JSB has access to all information processed at Europol and every single processing act is logged. These audit logs are entirely and accessible to the JSB inspectors who visit Europol 2 or 3 times per year for inspection visits. According to a statement of the Chair of the Joint Supervisory Body of Europol, “Europol has recognized the importance of data protection, not just as necessary element of meeting its human rights obligations, but also a means of providing reassurance to contributing Member States”. I don’t have enough knowledge of the JSB to be able to comment on how independent it is or how effective this oversight is. I hope that the above information clarifies the JSB’s enforcement powers and the procedures that ensures that Europol respects its data protection obligations and processes information in full compliance with EU data protection laws. @Ayden: We all appreciate your enthusiasm and dedication to this PDP and nobody is contesting your right to question authority or the efficacy of oversight of police data protection compliance. So, please keep up your good and constructive work in our WG and feel free to ask questions if you do not understand Europol's legal framework or if you suspect there may be data protection weaknesses. Thanks for your willingness to respond to my questions. I plan on continuing to ask them, because even with the limited knowledge I have of Europol, it would appear to me that the true picture is not as bright as you have painted it. Kind regards, Greg M. ------ From: gnso-rds-pdp-wg-bounces@icann.org on behalf of Stephanie Perrin Sent: 20 August 2016 01:23:36 To: Greg Shatan Cc: RDS PDP WG Subject: Re: [gnso-rds-pdp-wg] @EXT: RE: Use cases: Fundamental, Incidental, and Theoretical I beg your pardon, I was referring to the discussion between Greg and Ayden, not Chuck's intervention. this is of course a comment on the comment.....but not on the other comment. Stephanie On 2016-08-19 19:20, Greg Shatan wrote: I did not find Chuck's comments in any way "accusatory." If anything, I found them well-considered and admirable in their restraint. If anything, Chuck's intervention may have prevented "accusatory" comments from making their way to the list. As such, I would suggest that Chuck's comments were an exercise in "de-escalation." In that vein, I will refrain from commenting on comments, or commenting on comments about comments or commenting on comments about comments about comments, though if I wanted to comment on comments or comments on comments or comments on comments on comments, I would have comments to make. But I won't. Greg On Fri, Aug 19, 2016 at 7:08 PM, Stephanie Perrin <stephanie.perrin@mail.utoronto.ca> wrote: Gentlemen, with great respect, I think you are being a bit hard on Ayden here. If, as our next-gen rep here on the group, he were not questioning authority, I might be afraid he had somehow "missed the memo". I think the tone has become a bit accusatory on both sides and we should de-escalate. I agree that we must be exceedingly careful about putting words in each others mouths. However, questioning the efficacy of oversight of police data protection compliance is fair game in my view and in the view of most privacy scholars (Korff, Brown, Bennett and Raab, Anderson etc.). Diana Alonso Blass (who came to ICANN in 2003 or 04 representing the Article 29 Working Party) and now of Eurojust speaks regularly on some of these issues at the data protection commissioners' annual conference and at CPDP and there can be heated debate. Oversight of law enforcement, particularly cross border law enforcement, is difficult just as the actual law enforcement is difficult. There are many reasons for this: - law enforcement authorities have (legitimate) exemptions under data protection law for collection use and disclosure, making it easy to accidently abuse that discretion - Data protection authorities frequently choose to direct enforcement actions in other areas, given the constant shortage of resources and the publicity (reaching political uproar at times) that can come with enforcement against police - governments often take a dim view of data protection commissioners who go after the police (I can cite examples if you wish but I realize noone wants to read an article on the difficulties of dp oversight of law enforcement Some of the European DP authorities testified in the 2014 inquiry into NSA surveillance....I realize this is about intelligence, but certainly Europol and cybercrime were mentioned. [ http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A7-2014-0139+0+DOC+PDF+V0//EN](http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A7-2014-0139+0+DOC+PDF+V0//EN). Given the global nature of law enforcement in our subject area, and the perceived failure of certain instruments such as the Cybercrime treaty, and the general shock and outrage expressed during the inquiry I just cited, particularly over cross border data sharing, I think it is reasonable to question assertions of compliance with data protection law. You will find the list of witnesses in the appendix. Jacob Kohnstamm was one of them, as was Peter Hustinx, and let me finally remind you of my favorite quote from Kohnstamm 's 2012 letter to Crocker: “The Working Party strongly objects to the introduction of data retention by means of a contract issued by a private corporation in order to facilitate (public) law enforcement. If there is a pressing social need for specific collections of personal data to be available for law enforcement, and the proposed data retention is proportionate to the legitimate aim pursued, it is up to national governments to introduce legislation that meets the demands of article 8 of the European Convention on Human Rights and article 17 of the International Covenant on civil and Political rights”. (Kohnstamm to Crocker and Atallah, 26 September 2012). The bottom line here is that civil society correctly has questions about the efficacy of oversight. Please don't take it personally, it is not meant that way. It is our job to question. I would agree that Europol has an excellent oversight regime, in comparative terms, (I wish we had it in North America) but that does not mean it works all the time. While we are not here to criticize particular countries or regions, please admit the idea of criticism in general. It is important. Stephanie Perrin On 2016-08-18 18:55, Gomes, Chuck wrote: Ayden, I appreciate your frequent contributions because you share some important concerns. But I want to communicate some concerns I have about how you are doing that. Please see my comments below. Chuck From: gnso-rds-pdp-wg-bounces@icann.org [mailto:gnso-rds-pdp-wg-bounces@icann.org] On Behalf Of Ayden Férdeline Sent: Thursday, August 18, 2016 4:48 PM To: Mounier, Grégory Cc: RDS PDP WG Subject: Re: [gnso-rds-pdp-wg] @EXT: RE: Use cases: Fundamental, Incidental, and Theoretical Hi Greg, I don’t mean to sound provocative, however I would like to make sure I am interpreting your comments correctly. Please see inline below. Thanks, Ayden -------- Original Message -------- Subject: @EXT: RE: Use cases: Fundamental, Incidental, and Theoretical Local Time: August 18, 2016 7:00 PM UTC Time: August 18, 2016 6:00 PM From: [ gregory.mounier@europol.europa.eu](mailto:gregory.mounier@europol.europa.eu) To: [ gregshatanipc@gmail.com](mailto:gregshatanipc@gmail.com) icann@ferdeline.com,gnso-rds-pdp-wg@icann.org Yes Greg: unlike what Ayden seems to imply: · Europol is not advocating that personal information be processed in a manner inconsistent with European law; I am pleased to hear this. However, it the [ opinion](https://secure.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Co...) of the European Commission’s own Data Protection Supervisor that the data retention requirements contained with the 2013 RAA and the Draft Specification “continue to fall short of compliance with European data protection law.” You have built a use case around how the WHOIS protocol operates today, which itself contains data sourced from registrars through practices which are inconsistent with the privacy laws of many (all?) EU Member States. [Chuck Gomes] Greg did not say that the 2013 RAA is compliant with European law; he only said Europol is. · Europol access and processing of WHOIS information is in line with European Data protection rules; I am glad that this is the case. Could you please expand upon how, under what circumstances, and how frequently Europol currently retrieves WHOIS records? [Chuck Gomes] This is a terribly broad request and one that I suspect may be very difficult to respond to. Europol is not the topic of discussion . Insight they can provide will be helpful when we deliberate just like your insights. In all cases we will do our best to validate information we use. · Europol does not “trawl” the WHOIS; Are you saying, then, that you do not find the WHOIS protocol useful in solving crime? If you are not collecting its records in bulk, I would suggest that we revise your use case of 25 July to reflect this reality. [Chuck Gomes] He did not say that. I encourage you to avoid adding to what he said. We should remove the reference to “Python DNS scripts or domain tool API” being utilised to identify connections between DNS information and potentially troublesome websites, and replace it with something which respects the right to, say, due process. [Chuck Gomes] Please remember that our objective is not to create perfect use cases. After all, illegal content like child abuse material (which you flagged in your use case) is just that – illegal. Illegal material should be dealt with in a legal manner. You should not be advocating for the circumvention of the rule of law; to do so is a direct violation of the human rights standards that Europol has committed itself to upholding. [Chuck Gomes] Who is advocating for the “the circumvention of the rule of law”? I think that the implication you make here is inappropriate. · Europol is indeed subject to one of the most stringent data protection framework in the LEA world. Whether that is reality or rhetoric, I do not know. My gut feeling is that Europol’s data protection provisions are comprehensive in theory, but critically undermined by procedural weakness. One example that comes to mind: the Europol Joint Supervisory Body is the independent body which supposedly monitors your adherence to data protection rules. However, it has no powers of enforcement, it can only “make any complaints it deems necessary to the Director” of Europol. [Chuck Gomes] I think it best if you avoid criticizing specific organizations and stick to issues. I’ll stop here because this is only partially relevant to this PDP. My understanding has been that some politicians in the EU have been reluctant to expand Europol’s remit/mandate, given concerns around effectiveness and a perceived democratic deficit, so it is fascinating to me to see Europol working to expand its powers and data collection abilities in working groups such as this one. [Chuck Gomes] Once again I think you are concluding more than is reasonable and also don’t find you comment here constructive. Best Greg From: Greg Shatan [mailto:gregshatanipc@gmail.com] Sent: 18 August 2016 19:49 To: Mounier, Grégory Cc: Ayden Férdeline; RDS PDP WG Subject: Re: [gnso-rds-pdp-wg] @EXT: RE: Use cases: Fundamental, Incidental, and Theoretical Greg, For the rest of us who may not be so well informed, is there something more we should understand and take into account in considering this particular back-and-forth? Thanks! Greg Shatan On Thu, Aug 18, 2016 at 1:45 PM, Mounier, Grégory <gregory.mounier@europol.europa.eu> wrote: Dear Ayden, I objected because some of your statements were misinformed so I thought that I should help and clarify. But it seems that you are very well informed and that you don’t need further explanations J Best regards, Greg From: Ayden Férdeline [mailto:icann@ferdeline.com] Sent: 18 August 2016 19:27 To: Mounier, Grégory Cc: Rob Golding; RDS PDP WG Subject: Re: @EXT: RE: [gnso-rds-pdp-wg] Use cases: Fundamental, Incidental, and Theoretical Thank you for the response, Greg. I did not mean to suggest that Europol was whollyexempt from European data protection regulations, because it is not. In my original message, I wrote: "...your agency is exempt from some of the general provisions on data processing." I have bolded the word ‘some’ on this occasion for emphasis. When I wrote that Europol had exemptions from someof the general provisions on data processing, I was referring to the Europol Council Decision as published in the Official Journal of the European Union on 15 May 2009. I am sure you are intimately familiar with this document, as you cited it in your email to me today as providing the “basis for Europol to establish and maintain cooperative relations with Union or Community institutions, bodies, offices and agencies; third States and organisations; private parties and private persons in so far as it is relevant to the performance of its tasks.” Aside from this, this decision contains data processing rules which were, to quote you again in your email, "tailor-made" for Europol, and is complemented by a set of implementation guidelines which privilege Europol with the ability to process personal data “for the purpose of prevention, investigation, detection and prosecution of criminal offences or the execution of criminal penalties” in a manner that would not be permitted of other stakeholders. Given this, I'm unsure as to why you found my comments so objectionable, but I hope this email has brought about some more clarity. If not, I am happy to expand upon my thoughts. Thanks, Ayden -------- Original Message -------- Subject: @EXT: RE: [gnso-rds-pdp-wg] Use cases: Fundamental, Incidental, and Theoretical Local Time: August 18, 2016 5:54 PM UTC Time: August 18, 2016 4:54 PM From: [ gregory.mounier@europol.europa.eu](mailto:gregory.mounier@europol.europa.eu) To: icann@ferdeline.com rob.golding@astutium.com,gnso-rds-pdp-wg@icann.org Dear Ayden, Thank you very much for sharing your concerns and apologies for the late response, I was away from the office. I am not sure how you got the perception that Europol was “trawling” through WHOIS records or that Europol was “exempt from some of the general provisions on data processing” or even that our legal framework limited the ability of Europol staff to process data from publicly available sources related to “terror manuals” or “criminals claiming credit for attacks”. In fact, I can assure you that Europol is not exempted from the general provisions on data protection. European data protection legislation has been implemented in the organisation with the aim of creating a legal framework which balances the fundamental interests of freedom and security. The tailor-made set of rules provides Europol with one of the strongest, most robust data protection framework in the world of law enforcement. As far as data exchange inside the EU is concerned, Art.22-25 of Europol Council Decision (ECD) provides a basis for Europol to establish and maintain cooperative relations with Union or Community institutions, bodies, offices and agencies; third States and organisations; private parties and private persons in so far as it is relevant to the performance of its tasks. Europol exchanges personal data only with third parties which have an adequate level of data protection. The prior data protection assessment of the third party involves a check on the necessary data protection legislation and confidentiality rules in place and in practice. The list of the third countries with which Europol has established an operational agreement is published on our website. In addition, Europol can receive information from private parties such as companies, business associations or non-profit organisations. As with any transfer of personal data, this process is subject to data protection controls. Last but not least, in line with the respective provisions of the ECD, Europol can also retrieve and process data, including personal data, from publicly available sources, such as media and public data and commercial intelligence providers, in accordance with the data protection framework. I hope that I could clarify some of the issues you raised. Kind regards, Greg From: Ayden Férdeline [mailto:icann@ferdeline.com] Sent: 08 August 2016 14:11 To: Mounier, Grégory Cc: Rob Golding; RDS PDP WG Subject: Re: [gnso-rds-pdp-wg] @EXT: RE: Use cases: Fundamental, Incidental, and Theoretical Greg, I am disappointed that Europol seems to be advocating that personal information be processed in a manner inconsistent with European law. I fully appreciate that, in order to allow Europol to collect sensitive information from the Member States in the pursuit of investigations, your agency is exempt from some of the general provisions on data processing. You are permitted to directly retrieve and process information obtained from publicly-available sources, but the promotional literature on the Europol website suggests Europol agents searching for publicly-available ‘terror manuals’ or criminals claiming credit for attacks. There is no indication that this includes Europol trawling through things like WHOIS records to identify the administrator of a website, something far less sinister. And if the RDS evolves into something very different from what it is today – perhaps not open to any and everyone to query, or federated into a single data store – my understanding is that the routing of information from a private party to Europol would be subject to European data protection controls and safeguards. The very specific exemptions that Europol has received in order to carry out its work simply do not call for Europol to advocate for a lower standard of privacy protection for European residents in privately-owned or publicly-accessible sources of information. There is no doubt that effective police work requires top intelligence, but equally as important is the employment of sound data protection safeguards which strike an appropriate balance between the interests of freedom and security. Just my $0.02. - Ayden On Thu, Aug 4, 2016 1:59 PM, wrote: Dear Rob, Thanks for sharing the outcome of your chat with ex-FBI and UK LEA agents. I feel that I need to step in to provide a different perspective than the one you just gave on the law enforcement use of the WHOIS. It might be a matter of interpretation but the views expressed by your interlocutors are not shared by my colleagues working throughout European police cyber divisions. If European cyber investigators are obviously all aware of the fact that WHOIS registration data can sometime be inaccurate and not up-to-date (ICANN compliance reported that for the first quarter of 2015, WHOIS inaccuracy comprised 74.0 % of complaints), in 90% of cases they will start their investigations with a WHOIS lookup. This is really the first step. Despite the lack of accuracy, WHOIS information is useful in so many different ways. One of the first them is to make correlations and link pieces of information obtained through other means than from the WHOIS. This was the point I tried to make on Tuesday during the conference call. Accurate and reliable WHOIS data helps crime attribution and can save precious investigation time (you can rule out wrong investigative leads). It raises the bar and makes it more difficult for criminals to abuse domain names. It pushes them to resort to more complex techniques such as ID theft to register domains for malicious purposes. In short, for LEA WHOIS is certainly not the silver bullet to attribute crime on line but it is an essential tool in the tool box of law enforcement. Best, Greg -----Original Message----- From: gnso-rds-pdp-wg-bounces@icann.org [mailto:gnso-rds-pdp-wg-bounces@icann.org] On Behalf Of Rob Golding Sent: 04 August 2016 01:46 To: RDS PDP WG Subject: Re: [gnso-rds-pdp-wg] Use cases: Fundamental, Incidental, and Theoretical
Theoretical
===========
We have seen a couple of proposed use cases that seem to be ideas
that people have for useful or harmful ways that RDS can be used, but
that do not exist today (at least not that anyone can fully
document).
For example, there seems to be a desire to use the RDS as a way to
issue warrants for information about registrants. While this may be
useful, this is not possible today (even with RDAP, I note).
It not only is possible today, it's also "common" (although thankfully not frequent) Registrars get served warrants for details about registrants, and the _only_ information from WHOIS that's "needed" or used for such cases is the name of the Registrar. I had the pleasure of meeting Chris Tarbell, ex-FBI Cyber Crime, at HostingCon last week - asked about WHOIS/domain data he said "we dont use it" Last year at the UKNOF event in Sheffield I spent quite some time talking with some amazing people from the UK CyberCrime departments - asked the same questions, they confirmed that although whois _might_ be looked at to see if it matches _data they already have_ for confirmation, it's not used or relied on. Which beggars the question, should "LawEnforcement" use cases even be part of the discussions ? Rob -- Rob Golding rob.golding@astutium.com Astutium Ltd, Number One Poultry, London. EC2R 8JR * domains * hosting * vps * servers * cloud * backups * _______________________________________________ gnso-rds-pdp-wg mailing list gnso-rds-pdp-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rds-pdp-wg ******************* DISCLAIMER : This message is sent in confidence and is only intended for the named recipient. If you receive this message by mistake, you may not use, copy, distribute or forward this message, or any part of its contents or rely upon the information contained in it. Please notify the sender immediately by e-mail and delete the relevant e-mails from any computer. This message does not constitute a commitment by Europol unless otherwise indicated. ******************* _______________________________________________ gnso-rds-pdp-wg mailing list gnso-rds-pdp-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rds-pdp-wg Ayden Férdeline [Statement of Interest](https://community.icann.org/display/gnsosoi/Ayden+F%E9rdeline+SOI) ******************* DISCLAIMER : This message is sent in confidence and is only intended for the named recipient. If you receive this message by mistake, you may not use, copy, distribute or forward this message, or any part of its contents or rely upon the information contained in it. Please notify the sender immediately by e-mail and delete the relevant e-mails from any computer. This message does not constitute a commitment by Europol unless otherwise indicated. ******************* ******************* DISCLAIMER : This message is sent in confidence and is only intended for the named recipient. If you receive this message by mistake, you may not use, copy, distribute or forward this message, or any part of its contents or rely upon the information contained in it. Please notify the sender immediately by e-mail and delete the relevant e-mails from any computer. This message does not constitute a commitment by Europol unless otherwise indicated. ******************* _______________________________________________ gnso-rds-pdp-wg mailing list gnso-rds-pdp-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rds-pdp-wg ******************* DISCLAIMER : This message is sent in confidence and is only intended for the named recipient. If you receive this message by mistake, you may not use, copy, distribute or forward this message, or any part of its contents or rely upon the information contained in it. Please notify the sender immediately by e-mail and delete the relevant e-mails from any computer. This message does not constitute a commitment by Europol unless otherwise indicated. ******************* _______________________________________________ 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](https://mm.icann.org/mailman/listinfo/gnso-rds-pdp-wg) ******************* DISCLAIMER : This message is sent in confidence and is only intended for the named recipient. If you receive this message by mistake, you may not use, copy, distribute or forward this message, or any part of its contents or rely upon the information contained in it. Please notify the sender immediately by e-mail and delete the relevant e-mails from any computer. This message does not constitute a commitment by Europol unless otherwise indicated. *******************
participants (2)
-
Ayden Férdeline -
Mounier, Grégory