[ALAC] EPDP Early input

Alan Greenberg alan.greenberg at mcgill.ca
Wed Aug 29 02:33:58 UTC 2018 

I'm not at all sure that our situation is comparable. It is certainly 
far more atypical than a standard business or nonprofit.

Most people who have more knowledge of GDPR that I do deem ICANN to 
ba a controller, although perhaps a join controller. But an unusual 
one in that unlike most controllers, we do not actually have custody 
of the data.

Regarding where we are going on this, I am not prepared to roll over 
an just play dead. I think we need to put up a fight to get where we 
need to be. For instance, there are those who are saying (and using 
the data commissioners words to "prove" it, that we must not consider 
any needs other than our own. I differ on this. ICANN is not just 
responsible for making sure that the DNS records are orderly. We also 
have a responsibility to ensure that the DNS is usable and trusted. 
Although the ICANN mission does not use that word in this context, I 
believe that an untrusted DNS may as well not be there and be 
replaced with some other mechanism. GPDR DOES allow us to consider 
the needs of others. Article 6.1(f) explicitly says so. It is not 
unlimited but it is there and should allow us to make the case for 
ensuring that law enforcement and cyber security workers can get 
access. That is part of our job in this game.

And like some of the SAC101 recommendations, we need to not only make 
sure that the data is there, and accessible, but that it can in 
practice be accessed (such as recommendations on RDAP and rate limiting).

The Temporary Spec is overreaching in that it says we are responsible 
for the entire framework for such activities and that is nonsense, 
but I believe that we do have a responsibility to ensure that we 
support that framework and ensure that some types of data are available.

If that is not why we are on the EPDP, then I hope someone will tell 
me that so I can save myself an awful lot of work.

Alan


At 28/08/2018 08:44 PM, Holly Raiche wrote:
>Thanks John
>
>It's really helpful hearing from someone who has to implement GDPR - 
>and can bring those insights to the table.
>
>I think we all struggle to work through - first - whether ICANN is 
>the data processor or controller, and from there, what information 
>is actually required by whom, used by whom and accessed by whom.
>
>If there were an easy answer, I think we'd be there.  But none of 
>this is easy, so this insight is really welcome.
>
>Thank you
>
>Holly
>On 29 Aug 2018, at 10:37 am, John Laprise 
><<mailto:jlaprise at gmail.com>jlaprise at gmail.com> wrote:
>
>>So in my day job I was one of the GDPR implementation leads and 
>>we've just wrapped up the initial work. We were assisted by an 
>>external consultancy. That said, if anything SSAC did not go far enough.
>>
>>ICANN has a contractual basis for data collection related to the 
>>contracts it signs. The claim of legitimate interest is stretched 
>>well beyond it's intent and in fact the EU has opined on the 
>>balancing test required. My understanding of the balancing test 
>>would call into question even legitimate law enforcement requests 
>>where the PII was of an individual or organization known to be 
>>persecuted. In that case, couldn't exert legitimate interest if it 
>>fails the balance test.
>>
>>I am sympathetic to the needs of security researchers and law 
>>enforcement but ICANN data collection does not exist for them, 
>>though it is used by them. The proper scope is identifying what 
>>data SSAC and RSAC need and use to advance ICANN's mission.
>>
>>While rationale for data collection is one pain point, another that 
>>my org discover was in terms of data transfer/processing. 
>>Legitimate interest is not recognized rationale there. Moreover as 
>>a US nonprofit ICANN is ineligible for PrivacyShield which could 
>>give it some cover.
>>
>>Finally and perhaps to make matters worse, the technical spec 
>>instruct registries on data collection. I confess that at this 
>>point I'm not sure whether ICANN is acting as a data controller or 
>>a data processor. In a sense, the registries are data controllers 
>>and ICANN is the data processor, thrusting the onus of compliance 
>>upon registries.
>>
>>I'm at the limits of my GDPR for the day so additional thoughts 
>>would be welcome.
>>
>>Best,
>>
>>John
>>
>>From: ALAC 
>><<mailto:alac-bounces at atlarge-lists.icann.org>alac-bounces at atlarge-lists.icann.org> 
>>On Behalf Of Holly Raiche
>>Sent: Tuesday, August 28, 2018 2:17 PM
>>To: Marita Moll <<mailto:mmoll at ca.inter.net>mmoll at ca.inter.net>; 
>>ALAC <<mailto:alac at atlarge-lists.icann.org>alac at atlarge-lists.icann.org>
>>Cc: Alan Greenberg 
>><<mailto:alan.greenberg at mcgill.ca>alan.greenberg at mcgill.ca>
>>Subject: Re: [ALAC] EPDP Early input
>>
>>Thanks Marita
>>
>>I like your wording.  Ys it is a big document and I like your 
>>wording as to wha it is in the report that we endorse.
>>
>>Holly
>>On 29 Aug 2018, at 1:18 am, Alan Greenberg 
>><<mailto:alan.greenberg at mcgill.ca>alan.greenberg at mcgill.ca> wrote:
>>
>>Marita, I am not sure that your synopsis is all that different from 
>>endorsing the entire paper when you start examining the rationales, 
>>but I would be happy to accept that if we can get closure on it 
>>quickly. Time is our enemy in this overall EPDP process.
>>Alan
>>
>>At 28/08/2018 10:38 AM, Marita Moll wrote:
>>
>>
>>Sorry to have missed the call -- still confusing midnight Monday 
>>with midnight Tuesday -- I guess I will get used to the format.
>>I just read this really well done SSAC report which is clear and 
>>thorough. But there is a lot in there. I wonder if we should do a 
>>blanket endorsement of everything without careful analysis.
>>Could we not have a more nuanced position? For example, we could 
>>say that, in line with our mandate to support end-users, we support 
>>SSAC's position on ensuring that security professionals and law 
>>enforcement have adequate access to WHOIS/RDS data.
>>If that is the point we want to make.
>>
>>Marita
>>On 8/28/2018 2:23 AM, Alan Greenberg wrote:
>>
>>As I mentioned on the ALAC call that has just completed, all EPDP 
>>participant groups have been given the opportunity to provide 
>>"early input" into the EPDP.
>>So far, the SSAC and the NCSG has done so. Their input can be found 
>>at<https://community.icann.org/x/Ag9pBQ>https<https://community.icann.org/x/Ag9pBQ>://community.icann.org/x/Ag9pBQ.
>>The SSAC's input consisted of their recent report SAC101. A copy is 
>>attached for your convenience.
>>I would like to suggest that the ALAC submit a statement saying 
>>that we support SAC101, as it is in line with our stated position 
>>of trying to ensure that security professionals and law enforcement 
>>have adequate access to WHOIS/RDS data.
>>I open the floor for discussion and will initiate a Consensus Call 
>>later in the week.
>>
>>Alan
>>
>>
>>
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