Amy and colleagues,

In advance of tomorrow’s call, some suggestions on a few of the items listed below:

(1) Monthly reporting specification

I agree with some of the registrars that some of the data fields proposed could be eliminated; however, some others should be added.

(a) The recommendation in the WG report goes to “Publication and Disclosure requests” generally, and is not restricted to those received pursuant to the IP and LE disclosure frameworks. Furthermore, those two are DISCLOSURE frameworks and contain no provisions for Publication requests. Accordingly, the following 32 data fields, which refer to publication requests under these two frameworks, can be eliminated:

Under the per-registrar report: 8,9,12,13,16,17,20,21, 24, 25,28,29,32,33, 36, 37.

Under the per TLD report: 7,8, 11, 12, 15, 16, 19, 20, 23, 24, 27, 28, 31, 32, 35, 36.

However, data fields need to be added both for Publication and Disclosure requests received other than from IP right holders or Law Enforcement. These could take the form of “publication-requests” (in lieu of current data fields 8 and 9 ) and “disclosure-requests-other” (after current data field 11). Corresponding data fields are needed for such requests that are “fulfilled” or “declined” or “pending”. Because the policy does not require providers to offer a reconsideration procedure for publication requests (or for disclosure requests outside the IP and LE frameworks), it may be possible to omit the corresponding data fields for reconsideration. Thus, in all, 16 fields need to be added (8 in each report).

(b) Because the LE and IP frameworks contain both timeframes and lists of reasons for denial, it would be beneficial to include subfields capturing information about time lapses between receipt and fulfilment/denial, and of reasons for denials.

(c) I am not really clear on the reason for asking for the totals of various types of contacts for the domain names for which p/p services are being provided (fields 4-7 under the first report, 3-6 under the second report). I’d be interested to hear the staff’s justification for including these fields, which seem a bit tangential to collecting information about the operation of the publication and disclosure functions.

(2) LE disclosure framework

(a) Thanks for noting the apparent inconsistency between 4.3 and 6.3 re customer notification. It seems as though 4.3 should be the operative provision. The one point in 6.3 that should probably be brought into 4.3 regards compliance with applicable law or court order. This could be done by appending to the end of paragraph 4.3.1, “,unless otherwise required by applicable law or court order.”

(b) Regarding the recommendations listed in Amy’s 2/13 e-mail (summarizing our last call – pasted below for ready reference), I support Recommendation 3, and think the second formulation in that recommendation is preferable: to add, after the word “action,” “in accordance with subsection 4.2.” Let me note that this is already the case in section 4.1.1, which says “Provider will action, in accordance with section 4.2 and 4.3 of this Specification …”, so it may not even be necessary to repeat this reference to 4.2.

Looking forward to our call tomorrow and welcome reactions to the above before or during the call.

Excerpt from 2/13 e-mail from Amy:

Recommendation 1: Where a disclosure request has been categorized as High Priority, Provider shall use its best efforts towards actioning the request within 24 hours on business days or as close as possible to this, or “actioning the request within 24 hours for up to 90% (or some other level determined acceptable by Providers) of incidences.”
Recommendation 2: Add “without limitations” back to section 4.2.2. What’s listed under 4.2.2 should be non-limiting examples for when disclosure can be reasonably refused.
Recommendation 3: Define the word “Action” as follows (or similar): “As used in this subsection, “action” means (i) to disclose to the LEA requestor, or (ii) to refuse to disclose to the LEA requestor, citing one or more of the reasons listed in 4.2.2”?; or to add, after “action,” “in accordance with subsection 4.2,” which includes both the options listed (as well as the option of extending the deadline, “in exceptional circumstances,” see 4.2.4).
Recommendation 4: Where a disclosure request is categorized as High Priority, LEA will make every effort to contact the Provider directly to discuss the matter, and should it be determined that Provider has useful information, Provider shall use its best efforts to action the request within 24 hours, noting that a court order/subpoena may still be required prior to release of any information. Registrar will not be required to take any action in contravention of applicable law.
Recommendation 5: Edit to state that “Provider shall use reasonable efforts to respond to the request as soon as possible” as opposed to Provider shall use its best efforts to action the request within 24 hours.

Steven J. Metalitz | Partner, through his professional corporation

T: 202.355.7902 | met@msk.com

Mitchell Silberberg & Knupp LLP | www.msk.com

1818 N Street NW, 8th Floor, Washington, DC 20036

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From: Gdd-gnso-ppsai-impl [mailto:gdd-gnso-ppsai-impl-bounces@icann.org] On Behalf Of Amy Bivins
Sent: Friday, February 16, 2018 1:05 PM
To: gdd-gnso-ppsai-impl@icann.org
Subject: [Gdd-gnso-ppsai-impl] Agenda, materials for Tuesday's PP IRT call

Hello, All,

At our next PP IRT meeting, we will discuss the following:

LEA Framework Specification:
- Remaining issue re: time period for actioning high priority requests. If no agreement is reached this will be flagged for the public comment period. We will discuss most recent suggestions made on the list and determine whether there is an IRT consensus to adopt any of these proposed changes.
- Question from ICANN about Section 6.3’s application to Section 4.3: Do you view these sections to be in conflict?
  - Section 6.3 states that Customer Notification should take place at the earliest opportunity, unless such disclosure would pose a risk to operational sensitivity; safety of individuals; or is prohibited by law or court order. Such circumstances must be detailed in the disclosure request.
  - Text of 6.3 was included in PSWG’s initial proposal.
  - Section 4.3 (in summary, also included in PSWG initial proposal) states that the provider will notify the customer of a disclosure request in accordance with its terms of service and the timeframe identified by LEA. The provider may voluntarily set a generic timeframe for this notice, such as 90 days, which can be extended at LEA’s request.
IRT feedback on draft Monthly Reporting Specification, distributed earlier this week (also attached)
IRT feedback on updated draft Applicant Guide (attached). Please note that the proposed application process has been substantially updated since the IRT’s last review of this document, and that the proposed fee schedule has been updated.

Please review these items prior to our meeting and come prepared to discuss each of these topics.

Amy E. Bivins

Registrar Services and Engagement Senior Manager

Registrar Services and Industry Relations

Internet Corporation for Assigned Names and Numbers (ICANN)

Direct: +1 (202) 249-7551

Fax: +1 (202) 789-0104

Email: amy.bivins@icann.org