2019-07-16 EPDP- Phase 2 - Legal subteam call #1

PROPOSED AGENDA

1. Roll Call & SOI Updates

Confirmed EPDP-Legal Team members

• Board – Leon Sanchez*
• ALAC – Hadia Elminiawi
• BC – Margie Milam
• GAC – Laureen Kapin
• IPC – Brian King
• ISPCP – Thomas Rickert
• NCSG – Tatiana Tropina
• RrSG – Volker Greimann
• RySG – Kristina Rosette
• SSAC – Tara Whalen
• Staff – Dan Halloran, Caitlin Tubergen
• EPDP Leadership – Janis Karklins, Rafik Dammak (ex officio participants with permission to intervene if appropriate and mostly on procedural issues)

*During ICANN65, Janis proposed Leon to chair the Phase 2 Legal Committee calls. Leon agreed to serve as the chair, and no EPDP Team Members registered their objection.

2. Review Legal Committee Process and Working Methods

     a) Similar to the Phase 1 Legal Committee, if the EPDP Team identifies questions it believes are legal in nature, the Phase 2 Legal Committee will vet the questions to determine:

• the questions are truly legal in nature, as opposed to a policy or policy implementation question;
• the questions are phrased in a neutral manner, avoiding both presumed outcomes as well as constituency positioning;
• the questions are both apposite and timely to the EPDP Team’s work; and
• the limited budget for external legal counsel is being used responsibly.

   b) Meetings of the Phase 2 Legal Committee will be open to all EPDP Team members, but only appointed members will be invited to speak. Appointed members unable to attend meetings may appoint an alternate to speak during the meeting.

   c) Ultimate determinations of the Phase 2 Legal Committee will be shared and signed off with the EPDP Team before questions are sent to Bird & Bird.

   d) Questions/Concerns?

3. Substantive Review of Priority 1 Legal Questions Submitted to Date

   a) The Phase 2 Legal Committee will begin its review of questions submitted for Priority 1 items, i.e., questions submitted for SSAD.

• All draft questions previously submitted re: SSAD can be found on p. 10-11 of the SSAD worksheet.
• All Legal Committee members are asked to review this list of questions in advance of the meeting to determine if the questions meet the vetting requirements.
• The Chair will outline the questions received to quickly triage if members believe the question is legal in nature and relevant to the Team’s work/would move the Team forward. If no members believe the question meets these criteria, the question will not be discussed further.
• When reviewing the questions, the Legal Committee should also consider potential interlinkage with the Strawberry Group questions to avoid any kind of overlap and/or determine which questions are better shared with DPAs instead of outside counsel.

   b) Substantive review of SSAD questions

4. Wrap and confirm next meeting to be scheduled

   a)Confirm action items

For ease of reference, please find the SSAD questions submitted to date below:

1. There is a need to confirm that disclosure for legitimate purposes is not incompatible with the purposes for which such data has been collected.
2. Answer the controllership and legal basis question for a system for Standardized Access to Non-Public Registration Data, assuming a technical framework consistent with the TSG, and in a way that sufficiently addresses issues related to liability and risk mitigation with the goal of decreasing liability risks to Contracted Parties through the adoption of a system for Standardized Access (Suggested by IPC)
3. Legal guidance should be sought on the possibility of an accreditation-based disclosure system as such. (Suggested by ISPCP)
4. The question of disclosure to non-EU law enforcement based on Art 6 I f GDPR should be presented to legal counsel. (Suggested by ISPCP)
5. Can a centralized access/disclosure model (one in which a single entity is responsible for receiving disclosure requests, conducting the balancing test, checking accreditation, responding to requests, etc.) be designed in such a way as to limit the liability for the contracted parties to the greatest extent possible? IE - can it be opined that the centralized entity can be largely (if not entirely) responsible for the liability associated with disclosure (including the accreditation and authorization) and could the contracted parties’ liability be limited to activities strictly associated with other processing not related to disclosure, such as the collection and secure transfer of data? If so, what needs to be considered/articulated in policy to accommodate this? (Suggested by GAC)
6. Within the context of an SSAD, in addition to determining its own lawful basis for disclosing data, does the requestee (entity that houses the requested data) need to assess the lawful basis of the third party requestor? (Question from ICANN65 from GAC/IPC)
7. To what extent, if any, are contracted parties accountable when a third party misrepresents their intended processing, and how can this accountability be reduced? (BC)
8. BC Proposes that the EPDP split Purpose 2 into two separate purposes:

• Enabling ICANN to maintain the security, stability, and resiliency of the Domain Name System in accordance with ICANN’s mission and Bylaws though the controlling and processing of gTLD registration data.
• Enabling third parties to address consumer protection, cybersecurity, intellectual property, cybercrime, and DNS abuse involving the use or registration of domain names. counsel be consulted to determine if the restated purpose 2 (as stated above)

Can legal counsel be consulted to determine if the restated purpose 2 (as stated above) is possible under GDPR?   If the above language is not possible, are there suggestions that counsel can make to improve this language? (BC)

    9. Can legal analysis be provided on how the balancing test under 6(1)(f) is to be conducted, and under which circumstances 6(1)(f) might require a manual review of a request? (BC)

    10. If not all requests benefit from manual review, is there a legal methodology to define categories of requests (e.g. rapid response to a malware attack or contacting a non-responsive IP infringer) which can be structured to reduce the need for manual review? (BC).

    11.Can legal counsel be consulted to determine whether GDPR prevents higher volume access for properly credentialed cybersecurity professionals, who have agreed on appropriate safeguards? If such access is not prohibited, can counsel provide examples of safeguards (such as pseudonymization) that should be considered? (BC)

   12. To identify 6(1)(b) as purpose for processing registration data, we should follow up on the B & B advice that- “it will be necessary to require that the specific third party or at least the processing by the third party is, at least abstractly, already known to the data subject at the time the contract is concluded and that the controller, as the contractual partner, informs the data subject of this prior to the transfer to the third party”

  B&B should clarify why it believes that the only basis for providing WHOIS is for the prevention of DNS abuse.  Its conclusion in Paragraph 10 does not consider the other purposes identified by the EPDP in Rec 1, and, in any event should consider the recent EC recognition that ICANN has a broad purpose to:

  ‘contribute to the maintenance of the security, stability, and resiliency of the Domain Name System in accordance with ICANN's mission’, which is at the core of the role of ICANN as the “guardian” of the Domain Name System.”

   13. B&B should advise on the extent to which GDPR’s public interest basis 6(1)e is applicable, 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.”

BACKGROUND DOCUMENTS

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