November 2015 - Gnso-ppsai-pdp-wg

MP3 PPSAI WG - Tuesday 10 November 2015 at 14:30 UTC
by Terri Agnew Nov. 10, 2015

Nov. 10, 2015

Dear All, Please find the MP3 recording for the Privacy and Proxy Services Accreditation Issues PDP Working group call held on Tuesday 10 November 2015 at 14:30 UTC at: http://audio.icann.org/gnso/gnso-ppsa-10nov15-en.mp3<http://mailer.samanage.com/wf/click?upn=NrFWbrBstcrPWP369qgbqlXiSKeL20xnUXz…> On page: http://gnso.icann.org/en/group-activities/calendar#nov The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: http://gnso.icann.org/calendar/ Attendees: Alex Deacon - IPC Chris Pelling - RrSG Darcy Southwell - RrSG David Hughes - IPC Frank Michlick - Individual Graeme Bunton - RrSG Griffin Barnett - IPC Holly Raiche - ALAC James Bladel - RrSG Kathy Kleiman - NCSG Lindsay Hamilton-Reid - RrSG Michele Neylon - RrSG Paul McGrady - IPC Phil Corwin - BC Roger Carney-RrSG Sara Bockey - RrSG Sarah Wyld - RrSG Stephanie Perrin - NCSG Steve Metalitz - IPC Susan Kawaguchi - BC Terri Stumme - BC Todd Williams - IPC Vicky Sheckler - IPC Volker Greimann - RrSG Apologies: Don Blumenthal - RySG James Gannon - NCUC Osvaldo Novoa - ISPCP Christian Dawson - ISPCP Carlton Samuels - At-Large ICANN staff: Aysegul Tekce Amy Bivins Marika Konings Mike Zupke Mary Wong Terri Agnew ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-ppsai-pdp-wg/ Wiki page: https://community.icann.org/x/9iCfAg Thank you. Kind regards, Terri Agnew ------------------------------- Adobe Connect chat transcript for Tuesday 10 November 2015 Terri Agnew:Welcome to the PPSAI WG call on Tuesday 10 November 2015 at 14:30 UTC for 90 minutes. James Bladel::) Chris Pelling:Ello all on chat :) Chris Pelling:Earl Grey please Graeme, no milk nor sugar :) James Bladel:Having tea here as well. In the form of a Monster Rehab energy tea. Graeme Bunton:James: Gross. Terri Agnew:Welcome Lindsay Hamilton-Reid Terri Agnew:Welcome Vicky Sheckler Terri Agnew:Alex Deacon and Susan Kawaguchi are on audio Lindsay Hamilton-Reid:Afternoon all Terri Agnew:Welcome Philip Corwin Terri Agnew:Paul McGrady has joined audio steve metalitz:@Amy can you define FOAs? Terri Agnew:Welcome Roger Carney James Bladel:Registrant or Admin Contact. Mary Wong:Form of Authorization, I think Chris Pelling:Sorry who is htis ? Amy Bivins:Paul McGrady, i think Chris Pelling:ok :) Mary Wong:Please mute your mics if you're not speaking - thank you! Terri Agnew:Welcome Volker Greimann James Bladel:Paul is correct. This is a question of whether or not the transfer authorization was legitimate. Holly Raiche:Agree with James - from memory, the issue was maintaining the privacy of he beneficial registrant in the process Holly Raiche:@ James- agree - the issue is verification of the request of the beneficial registrant in accprdance with the RAA Chris Pelling:YEs I do please @_ Chris Pelling:* :) Chris Pelling:Ill answer that :) Mary Wong:Perhaps we can also clarify in the Final Report what we mean by "transfers" - distinguish between a domain name being transferred to another registrar, and transfer of a P/P registration to another P/P provider (esp in the course of de-accreditation). We can note this in the new part where we mention the additional concerns/problems that may arise with un-Affiliated P/P providers. James Bladel:If typing please mute. Thanks! :) Terri Agnew:Welcome Frank Michlick Holly Raiche:@ Mary - are you suggesting that a transfer between p/p providers should not include verification of the benefical registrant? We still have to be sure that it is the actual beneficial registrant that wants the transfer Mary Wong:@Holly, not at all - just a general suggestion that we make it clear what type of "transfer" we mean when we use that term. Frank Michlick:sorry for being late, I was in another call Chris Pelling:whoever is typing please mute :) Holly Raiche:@ Mary - I thinkwe sill have an issue of ensuring that the beieficial registrant actually wants the transfer Mary Wong:Thanks, Holly. All, FYI, here is the current language in the report regarding transfers. Per WG discussion, these are classified as best practices (I believe due to differing practices as well as not wanting to create a mandatory single standard as a result). Mary Wong:"* P/P service providers should facilitate and not obstruct the transfer, renewal or restoration of a domain name by their customers, including without limitation a renewal during a Redemption Grace Period under the Expired Registration Recovery Policy and transfers to another registrar.* P/P service providers should use commercially reasonable efforts to avoid the need to disclose underlying customer data in the process of renewing, transferring or restoring a domain name." steve metalitz:@Amy have any of the "what if" problems you list occurred in the registrar de-accreditation context? steve metalitz:@Kathy, isn't that an issue of notification to the customer that the service is being de-accredited? The customer can then cancel her registration with the registrar. Terri Agnew:Welcome Michele Neylon James Bladel:I think we're going to need to put togther a team to work with staff, go through this deck, and come up with some high-level proposals for the WG. Some of these loose ends shouldn't be left for the implmenetation team. James Bladel:just a suggestion. steve metalitz:@James, good suggestion. Darcy Southwell:Agree with James' proposal. Holly Raiche:Agree with James on that issue Kathy:tx Chris, good points. Could you kindly write that down because it sounds like important details the WG and ICANN implementation should know... tx! James Bladel:Suggest we change "Account Holder" to "Privacy Customer Data" Mary Wong:@James, presumably the problem is with the phrase "underlying P/P customer data", which is the language we are using in the recommendation in question. Mary Wong:Rec 5 as currently phrased: "5. P/P customer data is to be validated and verified in a manner consistent with the requirements outlined in the WHOIS Accuracy Program Specification of the 2013 RAA (as may be updated from time to time). " Kathy:I don't think that looks like my language any more... Mike Zupke:The recommendations refer to using the RAA's whois validation & verification requirements. Our goal is to make sure we all have the same thinking: our interpretation is that the PP verification would work like "Account Holder" verification (which doesn't mandatorily lead to suspension upon failure), not registrant verification, which would lead to mandatory suspension upon failure of both automated and manual reviews. Mary Wong:@Kathy, the co-chairs dropped the phrase "through their website" for registrars accepting registrations, and amended the words about "process created by this WG" to refer to ICANN instead. Graeme Bunton:Thanks Mary steve metalitz:Kathy's language propsosed 10/20: Why don't define much more precisely what we mean and have discussed throughout our 2 years of work: that Registrars will not take registrations on their websites (using their DN registration systems) using proxy/privacy service providers who are not accredited through the process we have created. Mary Wong:Thanks for further clarifying, Steve - my note was from memory :( Kathy:I was offering a concept -- what is include vs. what is excluded. language to be worked out :-) steve metalitz:Agree re "knowingly" Volker A. Greimann:We regulare all or we regulate none Volker A. Greimann:otherwise, no deal Chris Pelling:+1 Volker Volker A. Greimann:sorry for all the work Volker A. Greimann:then there is no way that we will achieve consensus Lindsay Hamilton-Reid:Surely this is not about client confidentiality - if the law firm wants to act as a privacy and proxy provider then they must become accredited. This then is not about protecting your clients but providing a privacy and proxy service which is regulated by ICANN. Volker A. Greimann:a lawyer acting as a gun dealer also falls under gun dealership regulation Volker A. Greimann:right? Holly Raiche:I think the larger question is whether/the extent to which the provision of a domain name is necessarily covered by the lawyer/client priviledge Mary Wong:Per James' comments, the obligations of a RNH vis-a-vis a Registrar (and vice versa) are spelled out in Section 3.7.7 of the RAA. Volker A. Greimann:indeed Mary Wong:For example: "3.7.7.3 Any Registered Name Holder that intends to license use of a domain name to a third party is nonetheless the Registered Name Holder of record and is responsible for providing its own full contact information and for providing and updating accurate technical and administrative contact information adequate to facilitate timely resolution of any problems that arise in connection with the Registered Name. A Registered Name Holder licensing use of a Registered Name according to this provision shall accept liability for harm caused by wrongful use of the Registered Name, unless it discloses the current contact information provided by the licensee and the identity of the licensee within seven (7) days to a party providing the Registered Name Holder reasonable evidence of actionable harm." Chris Pelling:it is still in the law firms company name, and thus they are "liable" for it James Bladel:@Phil - I presume that someone would report such a law firm to a Registrar, who would be obligated to investigate. James Bladel:@Susan - thanks for the plug. :) Volker A. Greimann:in that case, they could agree to the terms of the accreditation policy, and you would be aware, right Susan? Kathy:@Susan: I am not sure that most people pay their lawyers for responsiveness. Some pay them Not to be responsive. Phiip Corwin:@James--yes, that might happen for a "law firm" that holds itself out to the general poublic as providing P/P services -- but should thesde rules apply to a legitimate law firm that occasionally registers names for clients as an accommodation? Would any domain registration by a law firm automatically be presumed to be for P/P purposes? Volker A. Greimann:either we regulate everyone who offers this service, or no one? Chris Pelling:so hang on Susan, you mention you might use Domain by Proxy, and use as the underlying the information as your lawyers, but, they are still not hte registrant Volker A. Greimann:otherwise, would doctors, journalists and priests also benefit from this excemption? Susan Kawaguchi:@Chris the law firm would be the registrant and respond appropriately Susan Kawaguchi:@ volker do not follow you. Volker A. Greimann:no one is regulating lawyers, we are regulating privacy proxy service providers who happen to be lawyers Chris Pelling:BUt they are still not the the "actual owner" or controlling person of the domain name Susan Chris Pelling:as you requested them to register it Susan Kawaguchi:sure the law firm has control of the domain name Chris Pelling:Mary - how is the owner of a doamin name specified in the RAA ? I thought is was the requester of that domain name Stephanie Perrin:Paul, you are a US attorney. We cannot assume the same standards globally. steve metalitz:Note our recomendation 4: Domain name registrations involving p/p service providers should be clearly labeled as such. So in the scenario we are discussing is the registration by law firm (whether 1 or 1000) so labeled? Susan Kawaguchi:and they can take any action they feel they need to with the registration including tranferring into Facebook's name Stephanie Perrin:Good point Steve...that would be very helpful if they were labelled Stephanie Perrin:Problem being how do you enforce if not accredited Michele Neylon:you can't Mary Wong:@Chris: "Account Holder" means the person or entity that is paying for the Registered Name or otherwise controls the management of the registered name, when that person or entity is not the Registered Name Holder. Also, ""Registered Name Holder" means the holder of a Registered Name." Phiip Corwin:@Steve--would your law firm label itself aP/P service provider and voluntarily submit to ICANN regulation vis-a-vis entering into an accreditation agreement if a client asked you to register a domain name for a still-secret product or service? Kathy:Creating exemptions is a dangerous process Phiip Corwin:And, BTW, how would we even make sure that every lawyer and law firm in the world knows of this P/P accreditation framework. Lots of folks are still ignorant of new gTLDs. James Bladel:So much for Graeme's optimism. :) steve metalitz:@Phil: No, my law firm is not a privacy/proxy service provider Kathy:@Graeme: this is not my language either Chris Pelling:So Mary, in that instance, as Susan would be paying her lawyer for the domain name, Susan would be classed (Facebook) as the registered name holder ? Volker A. Greimann:we worked with lawyers who offer similar services in ccTLDs, trustee services and many of these create a separate entity for this Phiip Corwin:Thx Steve. I expected that asnwer -- and have no quarrel with it. Todd Williams:I have to say: if my doctor or priest is running a side business as a P/P Provider, I've got bigger worries than whether they're accredited or not. James Bladel:Still think the simplest approach is to put some teeth around 3.7.7 for unaccredited providers. Law firms wouldn't have an issue, since they already represent their client. Would provide an incentive for service providers to come under the "Accrediation Umbrella" Chris Pelling:** That should have been acount holder in my point there Mary Wong:@Kathy, sorry if I misspoke but this is the language that was sent to the Sub Team yesterday for your consideration. You are right that this is not what was discussed on the WG call last week, but is the follow up from that call based on Steve's suggestions then. Mary Wong:That's why I felt it necessary to note that this is not language that the Sub Team has agreed on. Kathy:Someone changed the langauge in numerous ways, including changing an AND to an OR - now the Requester is agreeing to nothing. Stephanie Perrin:As it seems unlikely we will get to my hand being up, I would liketo note that this does not correct the power imbalance. between requestor and beneficial registrant. we need the ability to request a bond be placed, managed by ICANN compliance. Phiip Corwin:Support kathy on changing or to and. Agree with james that we shouldn't reference registrant's domicile because that is unknown at time of request. Michele Neylon:+1 James Volker A. Greimann:also, why worry? this would only hurt complainants abusing the system James Bladel:Let's just move everything to California. It's the ICANN way. :) Phiip Corwin:@James. the CA Bar Assn thanks you! ;-) James Bladel:I'll volunteer fo rthat team Graeme. Mary Wong:Thanks, James - noted. Susan Kawaguchi:I will volunteer alos Mary Wong:And thanks too, Susan. Kathy:I think we have two very difficult issues left Sara Bockey:thank you all! Darcy Southwell:Thanks, all! Kathy:Tx Graeme and All Lindsay Hamilton-Reid:Thanks Phiip Corwin:Bye all Chris Pelling:Thanks all

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Agenda and documents for WG meeting on 10 November 2015
by Mary Wong Nov. 10, 2015

Nov. 10, 2015

Dear WG members, The proposed agenda for the next WG meeting on Tuesday 10 November is as follows; please note that this meeting is scheduled for NINETY (90) minutes and will commence at 1430 UTC. > 1. Roll call/updates to SOI > 2. Discussion of policy-related operational concerns regarding (a) data > escrow; and (b) de-accreditation (with Amy Bivins and Mike Zupke, ICANN > Registrar Services Team) > 3. Discussion of proposed language concerning definition of privacy and proxy > service providers (see below) > 4. Finalize Illustrative Disclosure Framework, particularly the two options > for arbitration or jurisdiction > 5. Last call for substantive questions/concerns with draft Final Report > (circulated on 8 October) > 6. Next steps / deadlines Agenda item #3 is a follow up to the WG¹s discussion as to whether and how to deal with questions concerning the accreditation of service providers such as lawyers. Following from the most recent email discussions, the WG co-chairs would like to propose that the WG¹s existing definitions be supplemented by this additional language, to be further discussed on the call tomorrow: ³Registrars will not accept registrations from P/P service providers who are not accredited through the process developed by ICANN². For agenda item #5, please feel free to share your comments to the list before the call as well as we will be giving the October 8 document a final ³scrub² and proof read following further changes based on subsequent WG discussions (including in Dublin), please focus on any substantive omissions or issues that have arisen since the May issuance of the Initial Report (on which much of the draft Final Report has been based, e.g. In the sections dealing with the WG¹s deliberations and processes). A copy of the document as at 8 October which was what was circulated before Dublin - is attached for your easy reference. Thank you! Cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong(a)icann.org

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EC Communique on EU-US Data Transfers Following on Schrems
by Carlton Samuels Nov. 7, 2015

Nov. 7, 2015

Here's a reflection from the European Commission coming on the Schrems ruling that declared Safe Harbour invalid under EU Personal Data Privacy law [Directive 95/46/EC]. The EC seems to be looking for ways to annul the ruling, at least to reduce its disruptive impact on cross-border commerce. Here's a excerpt to contextualize the matter: *'The functioning of the Safe Harbour arrangement relied on commitments and self-certification of adhering companies. While signing up to Safe Harbour Privacy Principles and FAQs is voluntary, these rules are binding under U.S. law for those entities that have signed up to them and enforceable by the U.S. Federal Trade Commission."* They says they will conclude a new agreement to comply with the court ruling within 3 months but what's of heightened interest to me - and maybe those of us who been working at the WHOIS/RDDS/PPSAI kerfuffle - are the alternate mechanisms for cross-border transfers the EC is promoting as good and proper for annulment or reducing the impact of the court ruling. This aside, not the 'get-out-of-jail-card' they gave themselves: *"The present Communication is without prejudice to the powers and duty of the DPAs to examine the lawfulness of such transfers in full independence. It does not lay down any binding rules and fully respects the powers of national courts to interpret the applicable law and, where necessary, to make a reference to the Court of Justice for a preliminary ruling. Nor can this Communication form the basis for any individual or collective legal entitlement or claim. " * We certainly have jawed about these alternatives extensively in EWG discussions. Best, -Carlton ============================== Carlton A Samuels Mobile: 876-818-1799 *Strategy, Planning, Governance, Assessment & Turnaround* =============================

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Re: [Gnso-ppsai-pdp-wg] Feedback on Illustrative Disclosure Framework
by Mary Wong Nov. 5, 2015

Nov. 5, 2015

Thanks for the detailed follow up, Phil staff will in turn follow up with Sub Team 3 as they finalize their recommendations on the Framework for the WG this week. As requested by Steve on the WG call yesterday, we¹d like to remind everyone to please raise any further questions or comments you may have on: (1) the latest proposed edits to the Framework as presented by Todd and Kathy on the call; and (2) the proposed new language on recommendations concerning de-accreditation, to the mailing list by the end of your respective working days tomorrow (Thursday 5 November). If no further issues are raised with the few post-Dublin changes made to the Framework language (except for the annex, which is still being worked on by the Sub Team) or the de-accreditation text, we¹ll proceed to insert those into the next iteration of the draft Final Report. Staff will also follow up on the proposed discussion with our operational colleagues of implementation issues that may require refinement or reconsideration of the current language of the WG's policy recommendations please look out for a separate email on that topic. Thank you. Cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong(a)icann.org From: Phil Corwin <psc(a)vlaw-dc.com> Date: Wednesday, November 4, 2015 at 11:49 To: Mary Wong <mary.wong(a)icann.org>, "gnso-ppsai-pdp-wg(a)icann.org" <gnso-ppsai-pdp-wg(a)icann.org> Subject: RE: [Gnso-ppsai-pdp-wg] Agenda and documents for review on 3 November 2015 > Following up on yesterday¹s call, and amplifying/further explaining my oral > comments in regard to the ³Revised Illustrative Draft Disclosure Framework for > Intellectual Property Rights-holders² --- > · Section IIA, starting on page 2, addresses situations where ³Where a > domain name allegedly infringes a trademark² and thus coincides with scenarios > where a rights holder could employ the URS (at new gTLDs) or the UDRP (at all > gTLDs; and noting that most ccTLDs have adopted similar arbitration > procedures) as well as initiate litigation under applicable national laws. > The ICANN-adopted RPMs allow an action to be initiated even when the identity > of the registrant is not known, and many national laws provide for In Rem > filings to address such circumstances. > > · Subsection 6a requires the rights holder (or its representative) > seeking registrant disclosure to provide a good faith statement that ³provides > a basis for reasonably believing that the use of the trademark in the domain > name -i. allegedly infringes the trademark holder¹s rights; and ii. is not > defensible². Some questions that may require clarifying modifications : 1) > Does the phrase ³use of the trademark in the domain name² mean that this > process is only available where the actual trademark, and not an allegedly > confusingly similar variant, constitutes the domain name or is wholly > incorporated within it? 2) Given that the rights holder is seeking a lifting > of privacy protection chosen by the registrant, is it sufficient that its > statement merely recite a basis for believing that the domain name ³allegedly > infringes² its trademark or should there be a higher threshold that is, a > requirement that the statement allege that the use of the TM in the domain > actually infringes its rights? 3) Does the phrase ³is not defensible² mean > that disclosure should only occur (or at least be seriously considered) when > the domain name presents a black-and-white, know-it-when-you-see-it scenario > such as that for which the URS is designed? (Noting that in many UDRP cases a > defense is raised, and where it is raised it is often successful.)(Further > noting that Section III.C.ii and iii allows the provider to refuse disclosure > where it has a basis for reasonably believing that ³use of the claimed > intellectual property is > > defensible².) > > · Subsection 6b requires the rights holder or representative thereof to > use the Customer¹s contact details only for certain purposes, one of which is > ³in a legal proceeding concerning the issue². Is it intended that a URS or > UDRP filing fall within the meaning of ³a legal proceeding²? If so, can that > be clarified as some may assume it only references court proceedings? > > · Subsection 6c requires the Requestor¹s statement that it ³c) agrees > that the Requestor will submit, without prejudice to other potentially > applicable > > jurisdictions, to the jurisdiction of the courts (1) where the trademark > holder is incorporated and (2) where Provider is located for purposes of any > disputes arising from alleged improper disclosures caused by knowingly false > statements made by the Requester, or from Requester¹s knowing misuse of > information disclosed to it in response to its request². Given that the > allegation of an infringing domain name may also be subject to a > contemporaneous or subsequent URS or UDRP action, for the sake of completeness > should this agreement be expanded to include submitting to the jurisdiction of > an accredited dispute resolution provider (DRP) based upon the applicable > jurisdiction rules so that such bad conduct could be taken into account to > find either abuse of the URS or attempted reverse domain name hijacking under > the UDRP? > > · Noting that, while the UDRP and URS are not always directly > applicable, many of these same questions and requests for clarification arise > in regard to Section II.C (Domain name resolves to website where trademark is > allegedly infringed). > > · Section III.D states, ³Disclosure cannot be refused solely for lack > of any of the following: (i) a court order; (ii) a subpoena; (iii) a pending > civil action; or (iv) a UDRP or URS proceeding; nor can refusal to disclose be > solely based on the fact that the Request is founded on alleged intellectual > property infringement in content on a website associated with the domain > name². I take issue with the notion that the provider should still continue to > determine whether to disclose the customer¹s contact information where a > related civil action for trademark infringement, or a URS or UDRP, have been > initiated (presumably by the rights holder, since it is unlikely that the > customer would do so and thereby make its identity known, in which event > further consideration of disclosure would be moot). The request for > disclosure is based upon allegations of trademark infringement and a court > and/or accredited DRP have far greater expertise than a P/P provider to > determine whether actual infringement exists. Given that disparity of > expertise, my view is that the filing of such action by the rights holder > should stay the disclosure request and relieve the provider from any further > obligation to decide on it. Allowing the process to continue could result in a > situation where privacy is violated and the court or DRP subsequently finds no > actual infringement. > > > Thank you for considering these questions and views as the WG moves toward a > final version of this document. > > Best to all, > Philip > > > > Philip S. Corwin, Founding Principal > Virtualaw LLC > 1155 F Street, NW > Suite 1050 > Washington, DC 20004 > 202-559-8597/Direct > 202-559-8750/Fax > 202-255-6172/cell > > Twitter: @VlawDC > > "Luck is the residue of design" -- Branch Rickey > > > From: gnso-ppsai-pdp-wg-bounces(a)icann.org > [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Mary Wong > Sent: Monday, November 02, 2015 5:13 PM > To: gnso-ppsai-pdp-wg(a)icann.org > Subject: [Gnso-ppsai-pdp-wg] Agenda and documents for review on 3 November > 2015 > > > Dear WG members, > > > > The agenda for our next meeting, on Tuesday 3 November, is as follows. PLEASE > NOTE THE UTC TIME CHANGE due to daylight savings time in a number of countries > the call will be at 1500 UTC (07:00 PST, 10:00 EST, 15:00 London, 16:00 > CET). > 1. Roll call/updates to SOI > 2. Continued discussion of Illustrative Disclosure Framework (latest version > attached please also see the note below) > 3. Discussion of proposed revised text for de-accreditation (see attached > draft text) and possible data escrow recommendation > 4. Next steps > For agenda item #2, please note that the draft being circulated is still under > discussion by Sub Team 3 and is subject to further revision and > recommendations by the group. As such, the ³redlined² edits that were > presented during the Dublin F2F meeting have been retained rather than > ³accepted² as changes. For your easier review, please note that the main > changes since Dublin that incorporate the WG¹s discussion points and agreement > in Dublin include: (1) clarification in Section III.A regarding an exception > to disclosure in cases where personal safety is endangered; and (2) an > addition to Section III.C (as sub-section (vii)) to clarify that providers > will not need to disclose if the verifiable evidence spelled out in Section II > is not fully produced by the requester. > > > > In addition, this current draft includes new language on dispute resolution > (see, e.g., Section II.A(6)(c)). The new language was inserted to cover what > has been termed ³Option 2² in the annex, concerning dispute resolution in the > event of disclosure due to improper requests. The Sub Team acknowledges that > while this topic was discussed briefly in Dublin, there was no WG agreement on > a specific recommendation. The new language in the current draft document as > well as specific edits to the ³annex² containing Options One and Two > reflects a suggestion by some Sub Team members to adopt Option Two. This > suggestion, which may not reflect the view of all Sub Team members as it is > still being discussed, is nevertheless being presented to the full WG for > further consideration. > > > > Thanks and cheers > > Mary > > > > Mary Wong > > Senior Policy Director > > Internet Corporation for Assigned Names & Numbers (ICANN) > > Telephone: +1 603 574 4889 > > Email: mary.wong(a)icann.org > > > > > > > > > > > > No virus found in this message. > Checked by AVG - www.avg.com <http://www.avg.com> > Version: 2015.0.6140 / Virus Database: 4450/10889 - Release Date: 10/25/15 > Internal Virus Database is out of date.

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Proposed Text for De-accreditation
by Kathy Kleiman Nov. 5, 2015

Nov. 5, 2015

Hi All, Our deadline for edits to the Proposed Text for De-accreditation fast approaches, so let me add a few items to the mix: Principle 1: I would recommend adding: "to the extent possible, ICANN should work with the provider to notify each customer directly of the upcoming de-accreditation." We hint at it, but I think we should say so directly. To Principle 2, after "Each step in the de-accreditation process should be designed so as to minimize the risk that a customer’s personally identifiable information is made publicly. " I would recommend adding: ==> "Customers whose privacy cannot be protected should be ensured the ability to cancel their domain name registration in lieu of disclosure or publication." We say it in the general opening paragraph, so it makes sense to add it to the specifics... Do we have final definitions of accreditation and affiliation? They seem to be key to this section. Tx, Kathy **

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Re: [Gnso-ppsai-pdp-wg] Feedback on Illustrative Disclosure Framework
by Mary Wong Nov. 4, 2015

Nov. 4, 2015

Hello Phil and everyone, I went back and looked at the various iterations and evolution of the draft framework since it was first presented for discussion. I hope that my notes (below, in blue and bolded) are helpful to you and the rest of the WG in resolving the questions you raised. Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong(a)icann.org From: Phil Corwin <psc(a)vlaw-dc.com> Date: Wednesday, November 4, 2015 at 11:49 To: Mary Wong <mary.wong(a)icann.org>, "gnso-ppsai-pdp-wg(a)icann.org" <gnso-ppsai-pdp-wg(a)icann.org> Subject: RE: [Gnso-ppsai-pdp-wg] Agenda and documents for review on 3 November 2015 > Following up on yesterday¹s call, and amplifying/further explaining my oral > comments in regard to the ³Revised Illustrative Draft Disclosure Framework for > Intellectual Property Rights-holders² --- > · Section IIA, starting on page 2, addresses situations where ³Where a > domain name allegedly infringes a trademark² and thus coincides with scenarios > where a rights holder could employ the URS (at new gTLDs) or the UDRP (at all > gTLDs; and noting that most ccTLDs have adopted similar arbitration > procedures) as well as initiate litigation under applicable national laws. > The ICANN-adopted RPMs allow an action to be initiated even when the identity > of the registrant is not known, and many national laws provide for In Rem > filings to address such circumstances. > > · Subsection 6a requires the rights holder (or its representative) > seeking registrant disclosure to provide a good faith statement that ³provides > a basis for reasonably believing that the use of the trademark in the domain > name -i. allegedly infringes the trademark holder¹s rights; and ii. is not > defensible². Some questions that may require clarifying modifications : 1) > Does the phrase ³use of the trademark in the domain name² mean that this > process is only available where the actual trademark, and not an allegedly > confusingly similar variant, constitutes the domain name or is wholly > incorporated within it? 2) Given that the rights holder is seeking a lifting > of privacy protection chosen by the registrant, is it sufficient that its > statement merely recite a basis for believing that the domain name ³allegedly > infringes² its trademark or should there be a higher threshold that is, a > requirement that the statement allege that the use of the TM in the domain > actually infringes its rights? 3) Does the phrase ³is not defensible² mean > that disclosure should only occur (or at least be seriously considered) when > the domain name presents a black-and-white, know-it-when-you-see-it scenario > such as that for which the URS is designed? (Noting that in many UDRP cases a > defense is raised, and where it is raised it is often successful.)(Further > noting that Section III.C.ii and iii allows the provider to refuse disclosure > where it has a basis for reasonably believing that ³use of the claimed > intellectual property is > > defensible².) MW: The phrase ³in the domain name² in Section IIA subsection 6(a) was inserted, to parallel the requirements for Sections IIB & IIC (where the infringement is not in the domain name but use of a copyright or trademark on a website) - in both the latter instances the alleged infringement is specifically tied to that use, whereas the original language in 6(a) merely said ³use of a trademark² without a specific limitation. All three situations now require the same showing by the requester and the same good faith statement, including the reasonable belief that the customer¹s use of the copyright or trademark in question ³is not defensible². The phrase ³is not defensible² was in the original draft Framework document and has not changed since but any change now will have to be made to all three sections/situations. > · Subsection 6b requires the rights holder or representative thereof to > use the Customer¹s contact details only for certain purposes, one of which is > ³in a legal proceeding concerning the issue². Is it intended that a URS or > UDRP filing fall within the meaning of ³a legal proceeding²? If so, can that > be clarified as some may assume it only references court proceedings? MW: This phrase has also been present since the original draft should we add the clarification (again to apply to all three requester situations) that this ³including a UDRP or URS filing²? > · Subsection 6c requires the Requestor¹s statement that it ³c) agrees > that the Requestor will submit, without prejudice to other potentially > applicable > > jurisdictions, to the jurisdiction of the courts (1) where the trademark > holder is incorporated and (2) where Provider is located for purposes of any > disputes arising from alleged improper disclosures caused by knowingly false > statements made by the Requester, or from Requester¹s knowing misuse of > information disclosed to it in response to its request². Given that the > allegation of an infringing domain name may also be subject to a > contemporaneous or subsequent URS or UDRP action, for the sake of completeness > should this agreement be expanded to include submitting to the jurisdiction of > an accredited dispute resolution provider (DRP) based upon the applicable > jurisdiction rules so that such bad conduct could be taken into account to > find either abuse of the URS or attempted reverse domain name hijacking under > the UDRP? MW: This new paragraph was added in the event that the WG agrees to adopt Option Two from the annex as such, the final language (if any) of this paragraph will have to mirror the WG¹s final agreement on the language for Option Two. Presumably this will be discussed and hopefully confirmed by the next call. > · Noting that, while the UDRP and URS are not always directly > applicable, many of these same questions and requests for clarification arise > in regard to Section II.C (Domain name resolves to website where trademark is > allegedly infringed). > > · Section III.D states, ³Disclosure cannot be refused solely for lack > of any of the following: (i) a court order; (ii) a subpoena; (iii) a pending > civil action; or (iv) a UDRP or URS proceeding; nor can refusal to disclose be > solely based on the fact that the Request is founded on alleged intellectual > property infringement in content on a website associated with the domain > name². I take issue with the notion that the provider should still continue to > determine whether to disclose the customer¹s contact information where a > related civil action for trademark infringement, or a URS or UDRP, have been > initiated (presumably by the rights holder, since it is unlikely that the > customer would do so and thereby make its identity known, in which event > further consideration of disclosure would be moot). The request for > disclosure is based upon allegations of trademark infringement and a court > and/or accredited DRP have far greater expertise than a P/P provider to > determine whether actual infringement exists. Given that disparity of > expertise, my view is that the filing of such action by the rights holder > should stay the disclosure request and relieve the provider from any further > obligation to decide on it. Allowing the process to continue could result in a > situation where privacy is violated and the court or DRP subsequently finds no > actual infringement. MW: The primary reason for the language in this section is to clarify what grounds cannot be used by a provider as a reason to refuse disclosure (e.g. there¹s not been a UDRP filed so there is no reason for me to disclose that information). It doesn¹t address the situation where there IS a UDRP (or other action) filed already though perhaps in these situations there will likely be few situations where a requester would still need the customer¹s details. Should we clarify this? > > Thank you for considering these questions and views as the WG moves toward a > final version of this document. > > Best to all, > Philip > > > > Philip S. Corwin, Founding Principal > Virtualaw LLC > 1155 F Street, NW > Suite 1050 > Washington, DC 20004 > 202-559-8597/Direct > 202-559-8750/Fax > 202-255-6172/cell > > Twitter: @VlawDC > > "Luck is the residue of design" -- Branch Rickey > > > From: gnso-ppsai-pdp-wg-bounces(a)icann.org > [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Mary Wong > Sent: Monday, November 02, 2015 5:13 PM > To: gnso-ppsai-pdp-wg(a)icann.org > Subject: [Gnso-ppsai-pdp-wg] Agenda and documents for review on 3 November > 2015 > > > Dear WG members, > > > > The agenda for our next meeting, on Tuesday 3 November, is as follows. PLEASE > NOTE THE UTC TIME CHANGE due to daylight savings time in a number of countries > the call will be at 1500 UTC (07:00 PST, 10:00 EST, 15:00 London, 16:00 > CET). > 1. Roll call/updates to SOI > 2. Continued discussion of Illustrative Disclosure Framework (latest version > attached please also see the note below) > 3. Discussion of proposed revised text for de-accreditation (see attached > draft text) and possible data escrow recommendation > 4. Next steps > For agenda item #2, please note that the draft being circulated is still under > discussion by Sub Team 3 and is subject to further revision and > recommendations by the group. As such, the ³redlined² edits that were > presented during the Dublin F2F meeting have been retained rather than > ³accepted² as changes. For your easier review, please note that the main > changes since Dublin that incorporate the WG¹s discussion points and agreement > in Dublin include: (1) clarification in Section III.A regarding an exception > to disclosure in cases where personal safety is endangered; and (2) an > addition to Section III.C (as sub-section (vii)) to clarify that providers > will not need to disclose if the verifiable evidence spelled out in Section II > is not fully produced by the requester. > > > > In addition, this current draft includes new language on dispute resolution > (see, e.g., Section II.A(6)(c)). The new language was inserted to cover what > has been termed ³Option 2² in the annex, concerning dispute resolution in the > event of disclosure due to improper requests. The Sub Team acknowledges that > while this topic was discussed briefly in Dublin, there was no WG agreement on > a specific recommendation. The new language in the current draft document as > well as specific edits to the ³annex² containing Options One and Two > reflects a suggestion by some Sub Team members to adopt Option Two. This > suggestion, which may not reflect the view of all Sub Team members as it is > still being discussed, is nevertheless being presented to the full WG for > further consideration. > > > > Thanks and cheers > > Mary > > > > Mary Wong > > Senior Policy Director > > Internet Corporation for Assigned Names & Numbers (ICANN) > > Telephone: +1 603 574 4889 > > Email: mary.wong(a)icann.org > > > > > > > > > > > > No virus found in this message. > Checked by AVG - www.avg.com <http://www.avg.com> > Version: 2015.0.6140 / Virus Database: 4450/10889 - Release Date: 10/25/15 > Internal Virus Database is out of date.

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PLEASE READ: EXTENDED WG calls and additional notes
by Mary Wong Nov. 4, 2015

Nov. 4, 2015

Dear WG members, In accordance with previous WG discussions, the co-chairs would like to extend the next WG call and possibly the ones following to ninety (90) minutes from their present sixty (60) minute duration. This means that the call on Tuesday 10 November will begin at 1430 UTC (06:30 PST, 09:30 EST, 14:30 London, 15:30 CET) and end at 1600 UTC. The co-chairs have also invited members of the Registrar Services Team to attend this next call, to provide a description of processes concerning the following two topics: (1) Data escrow, especially if the escrow (versus the registrar or reseller) model is used for accreditation this model was first presented to the WG last year; and (2) How to safeguard privacy during the de-accreditation process, including handling of bulk transfers (if this is possible) In relation to the implementation feedback that the Registrar Services and Compliance Teams provided to the WG on the Initial Report, policy staff has annotated the document that was circulated previously to indicate what might be considered issues more appropriately dealt with in implementation, and what other issues have been or will be addressed by new language in the Final Report. The annotated document is attached for your review. It has also been sent to our colleagues on the Registrar Services Team, as has the draft Final Report, to see if they believe there are any remaining policy-related topics that would require additional policy guidance at this stage. Please remember also to provide any comments you may have on the proposed de-accreditation language and the Illustrative Disclosure Framework to the mailing list by tomorrow, Thursday 5 November. Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong(a)icann.org

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Agenda and documents for review on 3 November 2015
by Mary Wong Nov. 4, 2015

Nov. 4, 2015

Dear WG members, The agenda for our next meeting, on Tuesday 3 November, is as follows. PLEASE NOTE THE UTC TIME CHANGE due to daylight savings time in a number of countries the call will be at 1500 UTC (07:00 PST, 10:00 EST, 15:00 London, 16:00 CET). 1. Roll call/updates to SOI 2. Continued discussion of Illustrative Disclosure Framework (latest version attached please also see the note below) 3. Discussion of proposed revised text for de-accreditation (see attached draft text) and possible data escrow recommendation 4. Next steps For agenda item #2, please note that the draft being circulated is still under discussion by Sub Team 3 and is subject to further revision and recommendations by the group. As such, the ³redlined² edits that were presented during the Dublin F2F meeting have been retained rather than ³accepted² as changes. For your easier review, please note that the main changes since Dublin that incorporate the WG¹s discussion points and agreement in Dublin include: (1) clarification in Section III.A regarding an exception to disclosure in cases where personal safety is endangered; and (2) an addition to Section III.C (as sub-section (vii)) to clarify that providers will not need to disclose if the verifiable evidence spelled out in Section II is not fully produced by the requester. In addition, this current draft includes new language on dispute resolution (see, e.g., Section II.A(6)(c)). The new language was inserted to cover what has been termed ³Option 2² in the annex, concerning dispute resolution in the event of disclosure due to improper requests. The Sub Team acknowledges that while this topic was discussed briefly in Dublin, there was no WG agreement on a specific recommendation. The new language in the current draft document as well as specific edits to the ³annex² containing Options One and Two reflects a suggestion by some Sub Team members to adopt Option Two. This suggestion, which may not reflect the view of all Sub Team members as it is still being discussed, is nevertheless being presented to the full WG for further consideration. Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889 Email: mary.wong(a)icann.org

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MP3 PPSAI WG - Tuesday 3 November 2015 at 15:00 UTC
by Gisella Gruber Nov. 3, 2015

Nov. 3, 2015

Dear All, Please find the MP3 recording for the Privacy and Proxy Services Accreditation Issues PDP Working group call held on Tuesday 3 November 2015 at 15:00 UTC at: http://audio.icann.org/gnso/gnso-ppsa-03nov15-en.mp3<http://mailer.samanage.com/wf/click?upn=NrFWbrBstcrPWP369qgbqlXiSKeL20xnUXz…> On page: http://gnso.icann.org/en/group-activities/calendar#nov The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: http://gnso.icann.org/calendar/ Attendees: Alex Deacon - IPC Darcy Southwell - RrSG David Hughes - IPC Don Blumenthal - RySG Frank Michlick - Individual Graeme Bunton - RrSG Griffin Barnett - IPC James Bladel - RrSG James Gannon - NCUC Kathy Kleiman - NCSG Lindsay Hamilton-Reid - RrSG Paul McGrady - IPC Phil Corwin - BC Sara Bockey - RrSG Sarah Wyld - RrSG Stephanie Perrin - NCSG Steve Metalitz - IPC Susan Kawaguchi - BC Terri Stumme - BC Todd Williams - IPC Vicky Sheckler - IPC Volker Greimann - RrSG Apologies: Holly Raiche - ALAC Michele Neylon - RrSG Kiran Malancharuvil - IPC ICANN staff: Mary Wong Gisella Gruber ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-ppsai-pdp-wg/ Wiki page: https://community.icann.org/x/9iCfAg Thank you. Kind regards, Gisella ------------------------------- Adobe Connect chat transcript for Tuesday 3 November 2015 Gisella Gruber:Welcome to the PPSAI WG call on the 3rd November 2015 at 1500 UTC Graeme Bunton:Meeting room is muted, and computer audio is yet to be enabled. Mary Wong:@Graeme, is audio/mic not working for you? Gisella Gruber:Good morning/afternoon to all Gisella Gruber:Audio has been enabled James Bladel:Awesome thanks. That was my cheerful mic-check. :) Graeme Bunton:I'm hearing some rustley typing sounds Kathy:Gisella should be a Hollywood announcer Gisella Gruber:Darcy Southwell has joined the call James Bladel:Steve is a bit faint for me. Anyone else? Mary Wong:@Steve, the revised agenda is in the right hand side notes pod. Gisella Gruber:@ James - good audio for me James Bladel:ok. if it persists, I'll reconnect. Stephanie Perrin:Was faint for me as well James. ok now. James Bladel:Agree, better now. Gisella Gruber:Paul McGrady has joined the call Kathy:Is an unaffiliated provider also an unaccredited provider? Graeme Bunton:My understanding is no, Kathy. Accredited but unaffiliated Kathy:tx! Kathy:I think this addresses very important issues - just want to check it more closely. Tx to drafters! Mary Wong:"Affiliated" per the 2013 RAA is defined as ""Affiliate" means a person or entity that, directly or indirectly, through one or more intermediaries, Controls, is controlled by, or is under common control with, the person or entity specified." Kathy:Tx Mary, can we include that in the document? Mary Wong:@Kathy, I'll check but I believe that is (or at least was) in the Initial Report and so should have been retained in the draft Final Report. Kathy:sure steve metalitz:Section III is on page 7 of the document on your screen Gisella Gruber:Bruce McDonald has joined the call Gisella Gruber:Welcome Don! James Bladel:Ok thanks, Todd. Gisella Gruber:James Gannon joined the call Mary Wong:@Kathy, does "your domicile" in Option 2 mean the place of incorporation for corporate entities? Also, should it be "or" rather than "and" for the jurisdiction? James Bladel:Good point, Steve. Our sevice agreements use AZ jurisdiction, but we have since reincorporated in Delaware. Graeme Bunton:Tucows, the Registrar, is Canadian and located in Toronto. Mary Wong:For clarity, UDRP rules indicate either "principal office" of registrar or RNH's address as shown in WHOIS - does that help? Graeme Bunton:That seems sensible, James Vicky Sheckler:agree w/ todd Vicky Sheckler:disagree w/ kathy. James Gannon:Agree with Kathy here Mary Wong:This raises conflict of laws issues - in Steve's example, would the Panama courts accept jurisdiction, and what law (choice of law) would apply to the dispute? James Gannon:I share James's concerns and would like to see something similar. Gisella Gruber:Alex Deacon has joined the call Stephanie Perrin:I agree with the need to see it all put together.... James Gannon:And before its noted I think we need to assess this prior to the irt stage Kathy:agreed James Bladel:Maybe one question would be: Does anyone have any objections to asking Staff to conduct this analysis now or in the very near future? James Gannon:No objcetion from me Kathy:Steve: can you recirculate this document? Kathy:on the list/ Graeme Bunton:Of course, Kathy Kathy:Tx Graeme! Mary Wong:Per Steve's comment - yes, we have only addressed those points that seem policy-related; some feedback concern specific implementation details that probably don't fit in a policy document. Paul McGrady:Thanks!! James Bladel:Thanks.

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