2019-07-23 EPDP- Phase 2 - Legal subteam call #2

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 last week)

                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.”

       b) Revisit previous week’s questions if edited versions are available and time allows

       c )Agree on next steps

    3. Wrap and confirm next meeting to be scheduled

         a) Confirm action items

         b) The next LC Meeting will take place on Tuesday, 6 August at 14:00 UTC.

BACKGROUND DOCUMENTS

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