Content Comparison

PROPOSED AGENDA

1. Roll Call & SOI Updates
2. Continued Substantive Review of Priority 1 (SSAD) Legal Questions Submitted to Date

          a) Substantive review of SSAD questions (beginning where LC left off during last LC meeting)

Updated Question 11    

Status: Thomas, Volker, Brian and Margie to work together on refining this question in advance of the next LC call on Tuesday, 15 October.

(Text proposed by Margie): Is it permissible under GDPR to provide fast, automated, and non-rate limited responses (as described in SSAC 101) to nonpublic WHOIS data for properly credentialed security practitioners¹ (as defined in SSAC 101) who are responsible for defense against e-crimes (including network operators, providers of online services, commercial security services, cyber-crime investigators) for use in investigations and mitigation activities to protect their network, information systems or services (as referenced in GDPR Recital 49) and have agreed on appropriate safeguards? Or would any automated disclosure carry a potential for liability of the disclosing party, or the controllers or processors of such data? Can counsel provide examples of safeguards (such as pseudonymization/anonymization) that should be considered?

For purposes of this question, please assume the following safeguards are in place:

• Disclosure is required under CP’s contract with ICANN (resulting from Phase 2 EPDP policy).
• CP’s contract with ICANN requires CP to notify the data subject of the purposes for which, and types of entities by which, personal data may be processed. CP is required to notify data subject of this with the opportunity to opt out before the data subject enters into the registration agreement with the CP, and again annually via the ICANN-required registration data accuracy reminder. CP has done so.
• ICANN or its designee has validated/verified the requestor’s identity, and required in each instance that the requestor: 
  • represents that it has a lawful basis for requesting and processing the data,  
  • provides its lawful basis, 
  • represents that it is requesting only the data necessary for its purpose,  
  • agrees to process the data in accordance with GDPR, and  
  • agrees to EU standard contractual clauses for the data transfer.  

Footnote 1: SSAC defines “security practitioners” in SSAC 101 as those who have a responsibility to perform specific types of functions (as specified in Section 3) related to the identification and mitigation of malicious activity, and the correction of problems that negatively affect services and users online.

Updated Question 12 and 13

Status: Brian and Matthew to summarize the two positions re: questions 12 and 13 and propose whether Bird & Bird should opine on this. Legal Committee to discuss the positions during its next meeting. (Previous text proposed by Margie)

Background: The recent EC Letter [icann.org] provides clarification regarding the possible legal bases for disclosure of non-public registration data to in the section entitled “Legal Bases for Processing”, and noted:

“As explained in our comments, Art. 6(1)f GDPR (legitimate interest) is one of the six possible legal bases provided under Art. 6(1) GDPR. For instance, disclosure of nonpublic gTLD registration data could be necessary for compliance with a legal obligation to which the contracted parties are subject (see Art. 6(1)c GDPR).”

and

“With regard to the formulation of purpose two, the European Commission acknowledges ICANN’s central role and responsibility for ensuring the security, stability and resilience of the Internet Domain Name System and that in doing so it acts in the public interest.”

Questions:

• In light of these statements from the EC, are there any updates to the prior memos submitted by B&B regarding the applicable bases for disclosure of non-public registration data to third parties for the purposes identified in EPDP Phase 1 Final Report Rec. 1 (Final Report), such as the memo on 6(1)(b)?   
• To what extent can disclosures of non-public registration data to third parties for the purposes identified in the Final Report Rec. 1 be justified under GDPR’ Article 6(1)e (public interest), in light of the EC’s recognition that: “With regard to the formulation of purpose two, the European Commission acknowledges ICANN’s central role and responsibility for ensuring the security, stability and resilience of the Internet Domain Name System and that in doing so it acts in the public interest.”

   3. Questions previously put on hold pending further legal advice and/or EPDP Team discussion

       a) Additional topics noted in plenary sessions, where an EPDP Member requested the topic be considered by the Legal Committee

• Domain names based on identical contact information: If a requestor obtains contact information for a domain name engaged in bad activity, is accessing contact information from other domain names with identical contact information permissible? (topic introduced by Brian K. during 6 September plenary meeting)

• ccTLD operators offering reverse WHOIS look-up services (topic introduced by Margie during F2F – requested legal advice)

Status: Thomas, Volker, Brian and Margie to consider these items in their review of Q11.

• BALANCING, AND RIGHT TO OBJECT: The defense of networks, the prevention of fraud, resisting cybercrime, and indicating possible criminal acts or threats to public security to a competent authority are tasks performed by third parties who are not law enforcement or government agencies. Such parties have legitimate interests in making data requests under GDPR, notably under Article 6(1)f; see also Recitals 47, 49, and 50. We are considering balancing where the data subject may be infringing upon the rights of others, and the safety of third-party requestors who deal with cybercrime.  The third-party purposes above also require timely responses to data requests.

Assume that registrars notify their registrants up-front of the purposes of data collection, under what circumstances the data may be released, the right to object, etc. 

     a. When a data controller receives a legitimate third-party data request, under what circumstances is the controller required under GDPR to explicitly notify the data subject that a request has occurred, and/or that it has provided data to a third party?

     b. Under what circumstances do data subjects have the right to object under GDPR  to the release of their data to third parties?  Per Bird & Bird's Question 3 memo, ICANN's use cases do not involve profiling or highly sensitive data categories (race, political affiliation, etc.), and "a decision to release information via the SSAD is would not in itself have legal effect on the data subject."

     c. Are data controllers ever required to notify the data subject of theidentity of a third-party requestor?

     d. Please confirm: when a data subject objects to processing, the decision to release the data resides with the data controller?

     e. If a registrant must be notified of a request and then be given the opportunity to object, please explain how this process can be reconciled with or integrated into a SSAD that is designed to provide timely data exchange when possible and does not involve "a decision based solely on automated processing". (See Bird & Bird's Question 3 memo, paragraph 1.12.) 

• Google Right to be Forgotten: (Proposed by Margie) In light of last week’s landmark Right to Be Forgotten Case regarding the reach of GDPR:

https://curia.europa.eu/jcms/upload/docs/application/pdf/2019-09/cp190112en.pdf , where the Court clarified the applicability of GDPR outside of the EU, and stated:

“However, it states that numerous third States do not recognise the right to dereferencing or have a different approach to that right. The Court adds that the right to the protection of personal data is not an absolute right, but must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality. In addition, the balance between the right to privacy and the protection of personal data, on the one hand, and the freedom of information of internet users, on the other, is likely to vary significantly around the world.”

Does this ruling affect:

1. The advice given inPhase 1 Regarding Territorial Scope?
2. The advice given in Q1-2 with respect to liability (Section 4 of the memo)?

In light of this ECJ decision, using the same assumptions identified for Q1 and Q2, would there be less risk under GDPR to contracted parties if:

              a. the SSAD allowed automated disclosure responses to requests submitted by accredited entities for redacted data of registrants and/or controllers located outside of the EU, for legitimate purposes (such as cybersecurity investigations and mitigation)and/or other fundamental rights such as intellectual property infringement investigations (See Article 17, Section 2 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012P/TXT); and/or   

              b. ICANN served as the sole entity making disclosure decisions for the SSAD, and directly provided access to the redacted data from a processing center outside of the EU (such as from ICANN’s Los Angeles Headquarters)?

         b) Agree on next steps

   4. Presentation of high-level summaries of legal memos

    5. Wrap and confirm next meeting to be scheduled

        a) Confirm action items

BACKGROUND DOCUMENTS

Audio Recording

Zoom Recording

Chat Transcript

Attendance 

Apologies:  none

Alternates:  none

Notes/ Action Items

Action Items

1. Brian, Margie, Thomas, and Volker to work together on reformulating Q11 based on today’s discussion. In redrafting the question, small group to consider the previous Bird & Bird advice re: safeguards.
2. EPDP Legal Committee to notify the Strawberry Team of the 6(1)(e) example.
3. Margie to draft new question based on reverse WHOIS look-up services.
4. Margie to update the question on the right to be forgotten with specific text that may conflict with the previous territorial scope memo.
5. ICANN org staff to assist with formatting the legal memo summaries.

Notes

These high-level notes are designed to help the EPDP Team navigate through the content of the call and are not meant as a substitute for the transcript and/or recording. 

1. Roll Call & SOI Updates

       2. Continued Substantive Review of Priority 1 (SSAD) Legal Questions Submitted to Date

         a) Substantive review of SSAD questions (beginning where LC left off during last LC meeting)

Updated Question 11    

• Margie is generally OK with Volker’s approach, but the assumptions should match the assumptions in other questions
• By listing the safeguards, the balancing test became baked into the facts. This is predetermining the outcome of a balancing test based on the safeguards put in place.
• This use case is unique, and the text should emphasize this is not about IP rights or wanting to see who is behind a domain name – this class of requestor has a legal obligation under law (like a 6(1((c) basis) – could this predetermine the outcome of the 6(1)(f) test?
• The balancing test cannot be preempted by preloading the requestor’s side with interests
• Would the team like to take another shot at resolving the issues, or is the small group deadlocked?
• Can the team ask for the information needed without categorizing the balancing test as being abandoned? For example – the interests of the registrant are considered in a general way as are the interests of the party seeking access to the data.
• Should the question be iterative? Since we have advice on additional safeguards, it may be worth working that into the question.

Action item: Brian, Margie, Thomas, and Volker to work together on reformulating the question based on today’s discussion. In redrafting the question, small group to consider the previous Bird & Bird advice re: safeguards.

Updated Question 12 and 13

Notes:

• There are two conditions required to use 6(1)(e) – the processing has to be necessary to carry out a public interest AND has to have a basis in union law.
• GDPR assumes that these types of registers will be provided for under national law. It seems to be established that domain name registers would be provided for in national law. It may be helpful to reach out to DPAs in this regard.
• Does not make sense to ask this question – however, it may be worth asking the Strawberry Team to explore this concept.
• Just b/c there is a regulation for one specific case does not mean it can be applied to all similar cases
• ccTLDs have a different relationship to gTLDs – this case cannot be relied on as an analogy – do not understand how the strawberry team can deal with this concept
• There may not be a public interest concept to rely on in this particular case
• Conclusion – this question will not be forwarded to Bird & Bird. However, this can be pointed out to the Strawberry Team.

     3. Questions previously put on hold pending further legal advice and/or EPDP Team discussion

        a) Additional topics noted in plenary sessions, where an EPDP Member requested the topic be considered by the Legal Committee

• Domain names based on identical contact information: If a requestor obtains contact information for a domain name engaged in bad activity, is accessing contact information from other domain names with identical contact information permissible? (topic introduced by Brian K. during 6 September plenary meeting)

• ccTLD operators offering reverse WHOIS look-up services (topic introduced by Margie during F2F – requested legal advice)

Status: Thomas, Volker, Brian and Margie to consider these items in their review of Q11.

Notes:

• Small team has not thoroughly considered the above points.
• Does it make sense to take reverse look-ups into a separate question?
• Yes – Margie to reformulate reverse WHOIS look-up services into a separate question.

• BALANCING, AND RIGHT TO OBJECT: The defense of networks, the prevention of fraud, resisting cybercrime, and indicating possible criminal acts or threats to public security to a competent authority are tasks performed by third parties who are not law enforcement or government agencies. Such parties have legitimate interests in making data requests under GDPR, notably under Article 6(1)f; see also Recitals 47, 49, and 50. We are considering balancing where the data subject may be infringing upon the rights of others, and the safety of third-party requestors who deal with cybercrime.  The third-party purposes above also require timely responses to data requests.

Assume that registrars notify their registrants up-front of the purposes of data collection, under what circumstances the data may be released, the right to object, etc. 

                a. When a data controller receives a legitimate third-party data request, under what circumstances is the controller required under GDPR to explicitly notify the data subject that a request has occurred, and/or that it has provided data to a third party? 

                b. Under what circumstances do data subjects have the right to object under GDPR to the release of their data to third parties?  Per Bird & Bird's Question 3 memo, ICANN's use cases do not involve profiling or highly sensitive data categories (race, political affiliation, etc.), and "a decision to release information via the SSAD is would not in itself have legal effect on the data subject."

                c. Are data controllers ever required to notify the data subject of the identity of a third-party requestor?

                d. Please confirm: when a data subject objects to processing, the decision to release the data resides with the data controller?

                e. If a registrant must be notified of a request and then be given the opportunity to object, please explain how this process can be reconciled with or integrated into a SSAD that is designed to provide timely data exchange when possible and does not involve "a decision based solely on automated processing". (See Bird & Bird's Question 3 memo, paragraph 1.12.) 

Notes:

• Does the Team want to ask this question, and if so, should the text be revised?
• Should not take on more than the law requires. Data subject is required to be informed at the time the data is collected. The rest of this question appears to go above and beyond what is required.
• This appears to be interpreting the GDPR too broadly. Registrars likely do not notify data subjects after each disclosure.
• Conclusion: this question will be removed from further consideration by the legal committee.

• Google Right to be Forgotten:

Notes:

• There was another right to be forgotten case that took seems to have taken a different path – perhaps both cases should be included
• This question could be answered without asking the legal consultants. Reading the GDPR helps in this context – it defines the scope of the right to be forgotten
• The cited case applies to GDPR, and it would be useful to hear from B&B on this.
• It may be helpful to pull out items in the case that may conflict with the territorial scope memo

       b) Agree on next steps

     4. Presentation of high-level summaries of legal memos

• Questions 1/2: https://docs.google.com/document/d/1wqEn6-PvvIOjcK5BxrVFi2HND4na2H-vE4jbKt00oCk/edit
• Question 3: https://docs.google.com/document/d/1SJu0Znem6fOybAKb19nB6cSSgaO6ZRfM3BpViX-wZA4/edit
• Question 4: https://docs.google.com/document/d/1blfcicgJu_NBV9L3dtF9aRU28W5hjaXdVzCeVNwcoXA/edit

Notes:

• Formatting should be uniform.
• It would be helpful to cite back to the text of the memos in the summaries
• Include an executive summary on the top of the memo – these are likely to be the pieces that are most helpful and informative to the EPDP Team
• Helpful to have until the end of the week to finalize the action items.

     5. Wrap and confirm next meeting to be scheduled

       a) Confirm action items

       b) The next Legal Committee meeting is scheduled for Tuesday, 19 November at 14:00 UTC.