March 2015 - Gnso-ppsai-pdp-wg

MP3 PPSAI WG - Tuesday 10 March 2015 at 1500 UTC
by Terri Agnew March 15, 2015

March 15, 2015

Dear All, Please find the MP3 recording for the Privacy and Proxy Services Accreditation Issues PDP Working group call held on Tuesday 10 March 2015 at 15:00 UTC at: http://audio.icann.org/gnso/gnso-ppsa-10mar15-en.mp3 On page: http://gnso.icann.org/en/group-activities/calendar#m<http://gnso.icann.org/en/group-activities/calendar#mar>ar<http://gnso.icann.org/en/group-activities/calendar#mar> The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: http://gnso.icann.org/calendar/ Attendees: Frank Michlick - Individual Justin Macy - BC Val Sherman - IPC Griffin Barnett - IPC Kathy Kleiman - NCSG Darcy Southwell - RrSG Todd Williams - IPC David Heasley - IPC Steve Metalitz - IPC Graeme Bunton - RrSG Jim Bikoff - IPC Holly Raiche - ALAC Vicky Scheckler - IPC Kiran Malancharuvil - IPC Volker Greimann - RrSG Alex Deacon -IPC Sarah Wyld - RrSG Carlton Samuels - ALAC Stephanie Perrin - NCSG James Bladel - RrSG Tatiana Khramtsova - RrSG Richard Leaning - no soi Susan Kawaguchi - BC Terri Stumme - BC Phil Corwin - BC Luc Seufer - RrSG Osvaldo Novoa - ISPCP David Hughes - IPC Chris Pelling - RrSG Apologies : Don Blumenthal - RySG Michele Neylon- RrSG Lindsay Hamilton-Reid - RrSG Paul McGrady - IPC ICANN staff: Marika Konings 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 March 2015 Terri Agnew:Welcome to the PPSAI WG Meeting of 10 March 2015 Graeme Bunton:Good morning all Holly Raiche:Morning all Kathy:Hi All! Bladel:Morning everyone. Welcome to DST, for those who believe in such things. :) Luc Seufer:Good afternoon to those one the civilised part of the world! :-P Holly Raiche:So what is the 'civililsed' part of the world? Darcy Southwell:Good morning! Terri Agnew:Jim Bikoff, David Heasley, Kiran Malancharuvil Philip Corwin:Good morning. because of the time shift for those of us in the USA I am going to have to leave this call for another in 30 minutes. Luc Seufer:Up to you Holly, I am just trolling Terri Agnew:have all joined Terri Agnew:Welcome Darcy Southwell Philip Corwin:When will we have an update on the possible F2F in BA? I would like to make my travel arrangements soon and it's difficult to do so absent that information. Thanks Mary Wong:If anyone has any comments on the new edits, please just let us know soonest. Marika Konings:For those that did not provide their input to the doodle poll yet, please see http://doodle.com/782mf9fgfrwyrszp Kathy: @Mary, probably edits when big picture issues out of the way... Luc Seufer:reg. II A. (2) could we modify it so that a copy of the complaint be provided to Provider and not only the proof of use of the relay function. Mary Wong:@Kathy, thanks! In the meantime, if there are comments on what was updated based on last week's call, just let us know. Holly Raiche:@ Kathy - Happy to join in steve metalitz:Because of the time zone shifts, the second half of this call conflicts with a previously scheduled IPC meeting. Apologies that I will have to drop off then. Terri Agnew:Welcome Stephanie Perrin Graeme Bunton:Are we also losing other members of IPC? Terri Agnew:Welcome Osvaldo Novoa Osvaldo Novoa:Hello all, sorry I am late Stephanie Perrin:Sorry to be late, no internet connection so life is complicated this morning. Terri Agnew:David Hughes has joined audio Holly Raiche:@KLathy - good summary Terri Agnew:Welcome Carlton Samuels Carlton Samuels:Howdy everybody Carlton Samuels:Apologies for late arrival Carlton Samuels:@Stephanie: +1 Carlton Samuels:The issue is not to absolve but to help a provider if they think they do need it Carlton Samuels:Call this an abundance of caution Volker A. Greimann:did Kathy drop? Stephanie Perrin:Howdy Carlton! Graeme Bunton:i can hear her Stephanie Perrin:Stephanie dropped....on a rickety phone blaster which goes in and out... Stephanie Perrin:You dont have to say yes to every group that pops up. Mary Wong:@Stephanie, that is true - and we understand this is an early stage fleshing out of the possibility. Nonetheless, when we start to think about setting up "advisory groups" for "non-legal disputes" it's hard to see how to draw the line. Mary Wong:Also, as Steve noted, this may be something that would be more acceptable if it's industry-led ... sort of like "self regulation" in other realms. Carlton Samuels:@Mary: Point well taken. The objective is to help providers deal with that registrant in that knotty fringe group for - and I hate to use this term 'fair and balanced' response. It allows the provider to second guess when they are conflicted Stephanie Perrin:I understand that Mary. I think the problem as we see it is that fundamental human rights issues are not getting the adivice and policy treatment that they merit....they are being treated like all the other economic issues. Volker A. Greimann:+1 graeme Bladel:That was exactly what I was intending to raise, Graeme. Mary Wong:@Stephanie, all - wouldn't the so-called "bad actor" providers either just punt to the panel all the time, or have no incentive to use one at all on the other hand? Carlton Samuels:This would not be a free for all. There must be some determination by the provider that the case elicited an 'Um.....' and it would be useful to get a second opinion Mary Wong:@Carlton, hence my latest question about why would providers use the panel. Stephanie Perrin:That is why you have a screening process....a relatively junior employee, when trained, can screen these kinds of calls. Data protection offices do it all the time, and I can tell you what grade level of employee does it, and what the job description and required skills/knowledge are. Philip Corwin:Bye Holly Raiche:@ Mary - the proposed panel or whatever would have the resources that may not be available to the provider - to stave off a provider just saying yes because they are unsure Mary Wong:@Stephanie, so this is envisaged as someone on ICANN staff who does the screening? Terri Agnew:Welcome Chris Pelling Holly Raiche:If we could be confident tha, when in doubt, just say no, we'd be happy. The wworry if it is all too hard, someone just says yes Chris Pelling:Hi all, sorry for lateness - dentist :/ Carlton Samuels:To my mind the knotty ones come in view when there are competing 'rights' and to figure out which gets the benefit of doubt for the "no, I shan't reveal'. vicky sheckler:note that proposal requires full contant info of complainant, plus penalty of perjury language on allegation. then, the service provider has some discretion on when to reveal w/in certain parameters vicky sheckler:what about the human rights of the creators of the content whose livelihood is being taken away b/c their content is blatently stolen? This is trying to find a practical solution with checks / safety valves. Holly Raiche:@ Vicky - we are also trying to find a practical solution for both sides of this issue Chris Pelling:ringing noise ? Terri Agnew:@all, we are locating the line Stephanie Perrin:@Vicki exactly...the reveal request provides for only one side of the human rights issue, the content holder, in your example. Stephanie Perrin:Mary if we do that, then we have to punt on the reveal request issue as well. vicky sheckler:stephanie - your proposal discounts creators human rights. teh category F proposal provides to provide checks and balances consisten with some mechanims that have worked in other contects in the past while not significantly increasing p/p proivder costs Holly Raiche:@ Mary - I'd be very sad if an ICANN WG can not at lease recognise and ry to deal with the larger issues Mary Wong:@holly, I didn't mean that we wouldn't recognize it. I meant that we DO recognize it but that possibly full resolution needs to be part of a broader discussion. Holly Raiche:@ Mary - maybe this is one of he places we need to have a larger discussion Holly Raiche:Maybe part of the solution is REQUIRING and p/P provider to spell out exactly when they will reveal Mary Wong:@Holly, again, not discounting importance - but the larger ramifications are beyond the remit of this WG on our specific issue. That's why I thought it might be helpful for us to explicitly recognize the problem in our report, but that we also recgnize that the best solution needs more discussion/broader input/time. Stephanie Perrin:Vicki I dont think you are quite understanding our position....if a creator is not getting a reveal, or is decided against in an expert panel, they can always take their case with the privacy case. He, in other words, has rights. If the end user (domain user/owner) does not have this option, his rights are being decided by those with an extremely strong financial interest in not defending his rights . Stephanie Perrin:Privacy proxy service provider, i meant (instead of privacy case in line 4) Stephanie Perrin:What we are looking for is maintaining an equilibrium in rights here. Mary Wong:@Holly - that is already in the WG agreed recs, ie Providers must spell out the circumstances under which they reveal, in the customer agreement. vicky sheckler:agree w/ graeme re: way to move forward Stephanie Perrin:@mary, as was pointed out a few calls ago....by Michele, I believe....if providers are hit with too many costs, they will simply change their terms of service and dump the cliient. Mary Wong:Stephanie, understood - hence question about why providers would use this advisory group if it doesn't absolve them from liability (which we cannot do). Kathy:We also have a precedent of the Independent Obector taking on a very narrow type of important protections... very narrow! Stephanie Perrin:It saves them money. Stephanie Perrin:I think if you check the EWG report, we put some examples of edge cases in there. Holly Raiche:Maybe weall look at the EWG to see if we can bring some of that thinking here Stephanie Perrin:I have longer versions Holly, I will forward to our little subgroup. Holly Raiche:@ Stephanie - Tks Kathy:Any easy questions, Graeme? Stephanie Perrin:What about the face to face meeting in BA Stephanie Perrin:thanks! dick leaning:bye all need to go to next meeting Kathy:Tx All for the discussion of these important issues. Holly Raiche:Thanks you GRaeme Frank Michlick:Thank you Luc Seufer:merci Darcy Southwell:Thank you

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Today's Meeting in 47 Mins
by Graeme Bunton March 10, 2015

March 10, 2015

Just in case others in daylight savings time are also confused, today's meeting is scheduled for 11am EST, or in about 47 minutes from now. -- _________________________ Graeme Bunton Manager, Management Information Systems Manager, Public Policy Tucows Inc. PH: 416 535 0123 ext 1634

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Updated document re disclosure standards
by Metalitz, Steven March 9, 2015

March 9, 2015

PPSAI WG members, Attached please find an updated version of the document Graeme and I circulated prior to last week's meeting. This updated version includes three or four wording tweaks, intended to reflect the discussion on last week's call. Looking forward to further discussion on tomorrow's call. Steve Metalitz From: <Metalitz>, Steven <met(a)msk.com<mailto:met@msk.com>> Date: Monday, February 23, 2015 at 11:57 To: "'PPSAI (gnso-ppsai-pdp-wg(a)icann.org<mailto:gnso-ppsai-pdp-wg@icann.org>)'" <gnso-ppsai-pdp-wg(a)icann.org<mailto:gnso-ppsai-pdp-wg@icann.org>> Subject: Re: [Gnso-ppsai-pdp-wg] Category F -- updated status report and text for discussion PPSAI WG members, This follows up on our note of Feb. 3 providing a status report on subgroup discussions among some IP interests and p/p service providers regarding p/p disclosure standards. To reiterate, the group's work is not meant to obviate or displace the work of the larger PPSAI WG on this issue - rather, it is meant to constructively contribute to the discussion by producing one proposal on this issue for the larger group's consideration. In light of further consideration and of the need to move forward the WG discussion on Category F, we present the attached document that we hope will help provide a framework for discussion of the disclosure issue in the WG. We emphasize that this is not a proposal from IPC, the Registrar Stakeholder Group, or any subset of either, and that we fully anticipate the text to be modified and improved through further discussion at the WG level. (We also acknowledge that the WG may find the proposal wholly unsatisfactory but hope that it will at least help advance debate.) The attached is put forward as a starting point, to use intellectual property infringement complaints as one illustrative example of minimum disclosure standards, in a framework that addresses (1) a service provider process for intake of requests; (2) general templates that requests would have to meet in order to trigger service provider action; and (3) principles governing service provider action in response to a conforming request. We look forward to the discussion of this document among WG members. Graeme Bunton Steve Metalitz From: Metalitz, Steven Sent: Tuesday, February 03, 2015 3:57 PM To: PPSAI (gnso-ppsai-pdp-wg(a)icann.org<mailto:gnso-ppsai-pdp-wg@icann.org>) Subject: Category F -- status report Dear WG colleagues, As you know, several PPSAI Working Group members, including representatives of the IPC and privacy and proxy service providers, have endeavored to develop a collaborative proposal on the minimum standards for disclosure (Category F). The group's work is not meant to obviate or displace the work of the larger group on this issue - rather, it is meant to constructively contribute to the discussion by producing one proposal on this issue for the larger group's consideration. This is an update on this sub-group's progress. But first, a little background: At the face-to-face meeting of the PPSAI Working Group in Los Angeles on October 10, 2014, one important topic was minimum standards for disclosure of contact information of customers of privacy/proxy services who may or may not be using their private domain name registrations to carry out infringing or other abusive activities. Prior to the face-to-face meeting, IPC participants in the Working Group circulated a proposal on this topic. A responsive redline was circulated to the WG by Volker Greimann. Following extensive discussion of these proposals and of the topic in general at the face-to-face meeting, a sub-group of WG participants have continued this discussion. The sub-group includes participants from the IPC and privacy/proxy service providers. Meeting by teleconference and working over e-mail, the sub-group has sought to develop a text that could be jointly presented to the PPSAI Working Group as a framework for further discussion on the issue of standards for disclosure. Some progress has been made, and the sub-group is continuing its efforts with the goal of producing a document for presentation to the PPSAI Working Group as soon after the Singapore ICANN meeting as feasible. If such a document is completed, it is hoped that it would be a constructive contribution to eventual WG approval of a set of recommendations on "Category F" for inclusion in the Draft Report of the WG. Unlike the documents discussed by the full WG last October, the framework under discussion does not purport to establish a single general policy for when disclosure of contact information in cases of alleged abusive activities would be available. Instead, it seeks to focus more narrowly on intellectual property infringement complaints as one illustrative example of minimum disclosure standards. The framework would describe (1) a service provider process for intake of requests; (2) general templates that requests would have to meet in order to trigger service provider action; and (3) principles governing service provider action in response to a conforming request. While considerable progress has been made in the first two areas, a number of critical issues remain to be resolved in the third area, and discussion has not been concluded on any of the areas. The expressed common goal of the discussion group participants is a framework that would give requestors a higher degree of certainty and predictability as to if, when and how they could obtain what level of disclosure; that would preserve for service providers a sufficient degree of flexibility and discretion in acting upon requests for disclosure; and that would include reasonable safeguards and procedures to protect the legitimate interests of customers of accredited proxy/privacy service providers. Of course, balancing these interests is the difficult task before our working group. As stated, participants in the discussion group hope to be able to make a constructive contribution to the WG's efforts to do so. Graeme Bunton Steve Metalitz

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Agenda and documents for PPSAI WG call on 10 March 2015
by Mary Wong March 9, 2015

March 9, 2015

Dear all, The proposed agenda for the next WG meeting on 10 March 2015 is as follows: 1. Roll call/updates to SOI 2. Conclude discussions on Category F, including finalization of the draft disclosure text pertaining to IP requestors (attached) 3. Next steps/next meeting Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4892 Email: mary.wong(a)icann.org

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Face to face?
by Michele Neylon - Blacknight March 9, 2015

March 9, 2015

All While I am in favour of a face to face meeting like we had in LA, I would be opposed to holding it after the main ICANN meeting for a variety of reasons. After a full week of meetings (many of us have activities scheduled over the weekend prior to the official opening) most of us are exhausted by Thursday and probably wouldn't be mentally or physically at our best for a productive meeting on the Friday. Regards Michele -- Mr Michele Neylon Blacknight Solutions Hosting, Colocation & Domains http://www.blacknight.host/ http://blog.blacknight.com/ http://www.blacknight.press - get our latest news & media coverage http://www.technology.ie Intl. +353 (0) 59 9183072 Direct Dial: +353 (0)59 9183090 Social: http://mneylon.social ------------------------------- Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty Road,Graiguecullen,Carlow,Ireland Company No.: 370845

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Three additional considerations
by Kathy Kleiman March 9, 2015

March 9, 2015

Dear All, We deeply appreciate the discussion of this past week and look forward to the discussion this week. It looks like good progress has been made on the issues of default and communications with Providers. Tx you! There are, however, a few additional issues that need to be addressed, some gaps in this important Reveal text. The purpose of this email is to highlight the gaps and some solutions to them. 1) The tough questions. We are deeply concerned about the most difficult questions that will pass through this Reveal process - the ones in which copyright and trademark allegations are being used to stifle criticism and speech. The ones in which hard standards are being taken against political corruption, in favor of persecuted and minority political, religious, ethic and sexual expression, and in which news ideas, concepts and concerns are being shared that threatened the establishment, the incumbents, the powerful. These cases to not happen everyday, but when they do, these cases work with vital freedom of expression, free speech & competition issues. Revealing the identity of such speakers could not only suppress the speech to which they are entitled, but expose protected addresses and locations of political, religious, ethnic and sexual minorities to harassment or worse. Several in our WG have used the Church of Scientology example because anyone who posts their materials (however small the snippet) faces criticism as a "copyright infringer" and the wrath of a well-funded entity. Many large business seek to squelch young competitors with "trademark infringement" allegations even in the countries where competition allows the direct naming and critiquing of your competitor's products and services. Wendy Seltzer set up the "Chilling Effects" database years ago expressly for these letters and this concern... What we gather from Providers is that these Reveal Requests are difficult and expensive to process -- that there is significant cost in time and money to evaluate these questions closely. What we expect is that even the best corporate counsel does not necessarily have a specialty in areas of international Freedom of Expression rights, Free Speech evaluations and international competition laws (and that's fair!) So these cases take a lot of time to research (and $$$). Yet, these are the questions in which minority speech, political expression, and controversial ideas -- protected classes worldwide -- rests. We respectfully request that it is not fair to ask Providers to incur the costs of a Freedom of Expression investigation - but neither is it fair to allow the rights of minority speakers, "fringe groups" and other protected groups and individuals to go under-assessed or under-evaluated. So for these tough and questions, and to make Providers' lives easier and cheaper, we propose a safety valve: the creation of a group of Freedom of Expression/Free Speech/Competition Attorneys (at least 1 from each Region) to sit on a "Complex Case Advisory Group." Solely at the Provider's discretion, a matter could be sent to this group for rapid review -- and a response shared for the Provider's consideration. Nothing binding. An outsourcing of the most difficult (and expensive) problems for evaluation and input. We are certain ICANN has the funds for this and should be willing to support this advisory-only group. This would be an addition to Section III, Service Provider Action on Request. 2) Appeals What's good for the goose is good for the gander. Both groups should be allowed to file appeals - both the Requestor whose request is turned down and the Customer whose Reveal is granted over his/her/its objections. In order to stop the floodgates of too many appeals, we propose a "loser pays" system with a clear and specified deference (by the decision-maker) to the Provider. We also propose that the body to which this goes to be a neutral one with - with clear history and expertise in Freedom of Expression, Intellectual Property and Competition Law. Of course, this proceeding should, of course, be completely online. (Additions to III.F) 3) Sanctions We would like to see more discussion of this - what might be done to prevent the frivolous or unfounded Requestors from continuing abusive patterns within and across Providers. Frivolous requests are an undue cost to the Provider and ones that put Customer into real frenzies of work and response. While we continue to think hard about this matter, we propose at this time a small addition to Section I(B) that would expressly allow Providers to share among themselves information about Requestors they feel are/have misused the system (such as vi: Nothing shall prevent providers from sharing data...). We look forward to the discussions this week. As the draft before us took many weeks in its formation, we appreciate the time and opportunity to evaluate it now -- with the full WG! Best, Kathy

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Re: [Gnso-ppsai-pdp-wg] Updated document re disclosure standards - some comments and concerns
by Sherman, Valeriya March 6, 2015

March 6, 2015

Dear all: In addition to Todd’s suggestion below, to further clarify Section III’s provisions regarding private communications between Providers and Customers, we may also want to modify III(A) to remove the language that implies that Customer reasons against disclosure will be passed on to the Requestor verbatim. For example, III(A) could read: “Promptly notify the Customer about the complaint and disclosure request and request that the Customer respond to Service Provider within x calendar days, providing any compelling reason(s) Customer may have against disclosure. Provider shall advise the Customer that if the Customer has compelling reason(s) to object to disclosure, Customer must authorize the Provider to communicate disclose such reason(s) to the Requestor and therefore must state such reason(s) to Provider in precisely the terms to be shared with the Requestor; and” This wording encourages private communications between Providers and Customers, enabling some degree of discretion by the Provider on how to communicate any reasons provided by the Customer against disclosure, while still putting the Customer on notice that if disclosure is denied, the Requestor will need to know why. Thanks! Val Valeriya Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law 202-973-2611 phone 202-263-4326 fax www.sgrlaw.com<http://www.sgrlaw.com> vsherman(a)sgrlaw.com<mailto:vsherman@sgrlaw.com> 1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007 Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office. She is not admitted in the District of Columbia. [cid:image044769.JPG@a888362c.41a461c7]<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP From: gnso-ppsai-pdp-wg-bounces(a)icann.org [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Williams, Todd Sent: Friday, March 06, 2015 7:58 AM To: Phil Corwin; Carlton Samuels; Kathy Kleiman Cc: PPSAI Subject: Re: [Gnso-ppsai-pdp-wg] Updated document re disclosure standards - some comments and concerns Let me add my thanks Kathy for circulating your thoughts, which I thought stimulated a good discussion on Tuesday. As I mentioned on that call, I think most if not all of what you’ve outlined goes to basic drafting revisions/clarifications, rather than to substantive disagreements. So with the goal of moving the process forward in anticipation of next Tuesday’s call, perhaps we as a WG can go through some of your substantive comments (I don’t have an issue with your general comments) point-by-point. I’ll start: · Misrepresentations. Both FN1 and the Annex address possible methods of resolving Provider claims of false statements/misrepresentations. Certainly we as a WG should discuss the various options in the Annex further. But that discussion would presumably relate to the method, not to the actual sanctions. I’m not sure that it’s within our ambit as a WG (or ICANN’s?) to proscribe what the sanctions would be. · “Higher bar.” In terms of the “much higher bar” – what would you propose? You mentioned using the DMCA § 512(h) as a go-by, but I think that’s actually a lower standard, not a higher one. Not to get too into the weeds of the DMCA (which we’re only really referencing here as a go-by), but my basic understanding is that § 512(h)(4) says that as long as the notice, subpoena, and declaration are in proper form, the clerk “shall expeditiously issue” the subpoena, and that § 512(h)(5) says that the provider must then “expeditiously disclose” the information required by the subpoena. So the whole process is automatic: there’s no discretion or substantive review by either the clerk or by the provider. Conversely, the process outlined in III(B) of the proposal that we’re considering gives the P/P Provider discretion to either: 1) disclose; 2) refuse to disclose (and provide it’s reasons why); or 3) ask for more time. · Default. As I mentioned on the call, I don’t read III(B) as requiring disclosure in cases of default. Rather, if there is a default (“after the time for Customer’s response has passed”), the P/P Provider can either: 1) disclose; 2) refuse to disclose (and provide it’s reasons why); or 3) ask for more time. If the Provider chooses Option (2) and the Requestor doesn’t like the reasons the Provider gives as to why, the Requestor can then request reconsideration under III(F). And if the Provider still refuses, the matter can go to the ICANN-approved dispute resolution process referenced in FN4. But nowhere does Section III contemplate automatic disclosure after default. I think that’s relatively clear from the way that Section III is drafted and structured, but if you want to propose clarifying language to make that point more clear, please do. · Third-party independent review. Section III(F) and FN4 already contemplate this. So I don’t think the question on the table is whether the proposal should allow for this (it does), but under what circumstances. As Michele noted on the call on Tuesday, requiring third-party independent review too often, or otherwise making the process too convoluted, isn’t going to help, because P/P Providers (who, as Michele noted, typically don’t charge very much for the service) are just going to draft their Terms of Service to say “if we get a complaint about X then we’re going to terminate the service” rather than going through the independent review. In light of that, I think the proposal strikes the right balance on the third-party independent review (basically, it’s available, but only for the tough cases in which the Provider has twice refused to disclose). But if you think there is a way to adjust that balance, while still accounting for Michele’s cost concern, let us know. · Privacy of communication b/w Providers and Customers. As I mentioned on the call, I don’t read III(E) as requiring Providers to pass on communications from Customers to Requestors verbatim; it just says that the Requestor must be informed of the reasons for the objection by the Customer. But if you want to add a clause to III(E) to make that more clear, that’s fine. Would this tweak do it: “If refusal to disclose is based on objection to disclosure by the Customer, Provider must inform Requestor of the reasons for objection, though Provider need not do so by relaying Customer’s objection verbatim.”? Looking forward to the call on Tuesday. Thanks. Todd. From: gnso-ppsai-pdp-wg-bounces(a)icann.org<mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org]<mailto:[mailto:gnso-ppsai-pdp-wg-bounces@icann.org]> On Behalf Of Phil Corwin Sent: Tuesday, March 03, 2015 9:53 AM To: Carlton Samuels; Kathy Kleiman Cc: PPSAI Subject: Re: [Gnso-ppsai-pdp-wg] Updated document re disclosure standards - some comments and concerns Good observations, Kathy. Worthy of discussion. 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> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org]<mailto:[mailto:gnso-ppsai-pdp-wg-bounces@icann.org]> On Behalf Of Carlton Samuels Sent: Tuesday, March 03, 2015 9:35 AM To: Kathy Kleiman Cc: PPSAI Subject: Re: [Gnso-ppsai-pdp-wg] Updated document re disclosure standards - some comments and concerns Thanks for the heavy lifting here Kathy. I belatedly read the document and I can tell you now your arguments are compelling. -Carlton ============================== Carlton A Samuels Mobile: 876-818-1799 Strategy, Planning, Governance, Assessment & Turnaround ============================= On Mon, Mar 2, 2015 at 5:59 PM, Kathy Kleiman <kathy(a)kathykleiman.com<mailto:kathy@kathykleiman.com>> wrote: Hi All, First, thank you, Steve, Graeme and All. I know a lot of people have spent a lot of time in the IP and Registrar Communities working on this draft. Tx you – and appreciate your invitation to comments and concerns! I have reviewed the Draft carefully and have some initial comments to share. Although I spoke with people in the WG while preparing them, these comments are my own.(If there is problem with the formatting below, please let me know.) 1. General Comments a. `Let’s make the wording more neutral. Let’s add “alleged” or “claimed” in all references of infringement (e.g., trademarks, copyrights of domain names/websites. Another good term would be “claimed infringement” -- which is the one used in similar sections of the Digital Millennium Copyright Act to the sections we are working on here. 2. More substantive comments a. Are we missing levels of protections for the Customer/Registrant? In the Digital Millennium Copyright Act (DMCA), there were two levels of protections for the “users.” i. The first was sanctions for misrepresentation. Basically, any company which knowingly materially misrepresents that material or activity is infringing is liable for damages, including costs and attorney fees caused from injury resulting from the misrepresentation. Don’t we need similar sanctions here? ii. A much higher bar for revealing the identity of the alleged infringer. The DMCA allows rapid takedown based on statements very similar to the one we proposing, but Reveal is a whole different story. The standard is much higher and goes through Court. Thus US Copyright Code, Sec 512(h), requires a subpoena to reveal data: a. [Section 512] “(h) SUBPOENA TO IDENTIFY INFRINGER- `(1) REQUEST- A copyright owner or a person authorized to act on the owner's behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection… Shouldn’t we have a higher standard too? It seems important to balance the rights of both sides, including whether the Allegation of Illegality sufficiently outweighs the Privacy Interests and Rights of the Battered Women’s Shelter, Online Magazine or Bloggers posting unpopular views of corruption. iii. A deep concern about default. As I read the rules, if you don’t respond, you lose and your data is revealed. But this is a problem because we can think of many reasons why Customers/Registrants would not respond. For example: a. Request came at the beginning of August, b. Request disappeared into spam; c. Registrant/Customer is unable to respond (perhaps language barriers); and/or d. Registrant/Customer is scared to respond. 2. I would submit that in something as important as revealing identity and physical locations, there should be no automatic default. It is completely possible that a) the allegations are incorrect on their face (no jurisdictional overlap, for example), or b) that there are clear defenses on “its face,” e.g., on the website. Thus, an anti-bullying group may post the copyrighted logo of a gang engaging in bullying (or worse) in a local school or neighborhood; is so, the gang’s allegation of copyright infringement could be clearly weighed against the “safe neighborhoods for all” activity taking place on the website. Similarly, an online publication in Europe may have every right to use the logo and trademark of a large multinational it is criticizing, or the image of Mohammed, without having its identity and address revealed without due process. Ditto for a battered women’s shelter posting a copyright logo, motto or design and urging women to watch for it and those bearing it. Due process is not automatic default, but a full and fair review of the website and other reachable information, even if the Customer/Registrant is unable to respond for herself or himself. 3. Option: we might consider Third Party or Independent Review. This is something that Steve and Graeme’s draft have already suggested for rejections of IP Owner Requests. It could serve Customers too by creating a review of default situations – or perhaps an independent forum for Service Providers who choose to outsource this difficult evaluation. iv. Privacy of communication between Customers and their Providers . The rules of Section III(A) seem to bar private communication with your Provider. Everything a Customer/Registrant might write to their Provider must be passed on verbatim (if I read this correctly). But that’s a problem for those with English as a second language (or third) or those without lawyers, and those simply trying to explain in clear and informal language to explain this situation. 0What will happen, I am concerned, is that whatever informal response a Customer provides to its Provider will operate (unintended) as an Admission Against Interest or an unintended Waiver. Further, the Customer/Registrant might inadvertently reveal a bit about their identity or even location – trying to explain their position clearly to the Provider – and this should not be passed on to the Requester automatically either. I am not sure of th answer here as IP Owners should know something about the response, but not necessarily the full communication of the Customer (e.g., he is stalking me). Thanks for reading! Best, Kathy On 3/2/2015 9:54 AM, Metalitz, Steven wrote: PPSAI WG members, Attached please find an updated version of the document Graeme and I circulated prior to last week’s meeting. This updated version includes three or four wording tweaks, intended to reflect the discussion on last week’s call. Looking forward to further discussion on tomorrow’s call. Steve Metalitz From: <Metalitz>, Steven <met(a)msk.com<mailto:met@msk.com>> Date: Monday, February 23, 2015 at 11:57 To: "'PPSAI (gnso-ppsai-pdp-wg(a)icann.org<mailto:gnso-ppsai-pdp-wg@icann.org>)'" <gnso-ppsai-pdp-wg(a)icann.org<mailto:gnso-ppsai-pdp-wg@icann.org>> Subject: Re: [Gnso-ppsai-pdp-wg] Category F -- updated status report and text for discussion PPSAI WG members, This follows up on our note of Feb. 3 providing a status report on subgroup discussions among some IP interests and p/p service providers regarding p/p disclosure standards. To reiterate, the group’s work is not meant to obviate or displace the work of the larger PPSAI WG on this issue – rather, it is meant to constructively contribute to the discussion by producing one proposal on this issue for the larger group’s consideration. In light of further consideration and of the need to move forward the WG discussion on Category F, we present the attached document that we hope will help provide a framework for discussion of the disclosure issue in the WG. We emphasize that this is not a proposal from IPC, the Registrar Stakeholder Group, or any subset of either, and that we fully anticipate the text to be modified and improved through further discussion at the WG level. (We also acknowledge that the WG may find the proposal wholly unsatisfactory but hope that it will at least help advance debate.) The attached is put forward as a starting point, to use intellectual property infringement complaints as one illustrative example of minimum disclosure standards, in a framework that addresses (1) a service provider process for intake of requests; (2) general templates that requests would have to meet in order to trigger service provider action; and (3) principles governing service provider action in response to a conforming request. We look forward to the discussion of this document among WG members. Graeme Bunton Steve Metalitz From: Metalitz, Steven Sent: Tuesday, February 03, 2015 3:57 PM To: PPSAI (gnso-ppsai-pdp-wg(a)icann.org<mailto:gnso-ppsai-pdp-wg@icann.org>) Subject: Category F -- status report Dear WG colleagues, As you know, several PPSAI Working Group members, including representatives of the IPC and privacy and proxy service providers, have endeavored to develop a collaborative proposal on the minimum standards for disclosure (Category F). The group’s work is not meant to obviate or displace the work of the larger group on this issue – rather, it is meant to constructively contribute to the discussion by producing one proposal on this issue for the larger group’s consideration. This is an update on this sub-group’s progress. But first, a little background: At the face-to-face meeting of the PPSAI Working Group in Los Angeles on October 10, 2014, one important topic was minimum standards for disclosure of contact information of customers of privacy/proxy services who may or may not be using their private domain name registrations to carry out infringing or other abusive activities. Prior to the face-to-face meeting, IPC participants in the Working Group circulated a proposal on this topic. A responsive redline was circulated to the WG by Volker Greimann. Following extensive discussion of these proposals and of the topic in general at the face-to-face meeting, a sub-group of WG participants have continued this discussion. The sub-group includes participants from the IPC and privacy/proxy service providers. Meeting by teleconference and working over e-mail, the sub-group has sought to develop a text that could be jointly presented to the PPSAI Working Group as a framework for further discussion on the issue of standards for disclosure. Some progress has been made, and the sub-group is continuing its efforts with the goal of producing a document for presentation to the PPSAI Working Group as soon after the Singapore ICANN meeting as feasible. If such a document is completed, it is hoped that it would be a constructive contribution to eventual WG approval of a set of recommendations on “Category F” for inclusion in the Draft Report of the WG. Unlike the documents discussed by the full WG last October, the framework under discussion does not purport to establish a single general policy for when disclosure of contact information in cases of alleged abusive activities would be available. Instead, it seeks to focus more narrowly on intellectual property infringement complaints as one illustrative example of minimum disclosure standards. The framework would describe (1) a service provider process for intake of requests; (2) general templates that requests would have to meet in order to trigger service provider action; and (3) principles governing service provider action in response to a conforming request. While considerable progress has been made in the first two areas, a number of critical issues remain to be resolved in the third area, and discussion has not been concluded on any of the areas. The expressed common goal of the discussion group participants is a framework that would give requestors a higher degree of certainty and predictability as to if, when and how they could obtain what level of disclosure; that would preserve for service providers a sufficient degree of flexibility and discretion in acting upon requests for disclosure; and that would include reasonable safeguards and procedures to protect the legitimate interests of customers of accredited proxy/privacy service providers. Of course, balancing these interests is the difficult task before our working group. As stated, participants in the discussion group hope to be able to make a constructive contribution to the WG’s efforts to do so. Graeme Bunton Steve Metalitz _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg(a)icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg _______________________________________________ Gnso-ppsai-pdp-wg mailing list Gnso-ppsai-pdp-wg(a)icann.org<mailto:Gnso-ppsai-pdp-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5646 / Virus Database: 4299/9172 - Release Date: 02/24/15 Internal Virus Database is out of date. ________________________________ Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. 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PPSAI WG F2F Meeting at ICANN53
by Mary Wong (via Doodle) March 4, 2015

March 4, 2015

Hi there, Mary Wong (mary.wong(a)icann.org) invites you to participate in the Doodle poll "PPSAI WG F2F Meeting at ICANN53." Mary Wong says: Hello everyone, please indicate which one of the four poll options (as discussed on the WG call this past Tuesday) is your most preferred option for the proposed F2F meeting in Buenos Aires. Feel free to use the comments section e.g. to indicate your second-best option as well. Thank you! Cheers Mary Participate now https://doodle.com/7mxu8qqnz9i2kgs8zxqbe5gn/private?tmail=poll_invitecontac… What is Doodle? Doodle is a web service that helps Mary Wong to find a suitable date for meeting with a group of people. Learn more about how Doodle works. (https://doodle.com/main.html?tlink=checkOutLink&tmail=poll_invitecontact_pa…) ---------------------------------------------------------------------- You have received this e-mail because "Mary Wong" has invited you to participate in the Doodle poll "PPSAI WG F2F Meeting at ICANN53." Please note that this is a personal invitation that cannot be shared with other poll participants. ---- Doodle AG, Werdstrasse 21, 8021 Zürich

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Re: [Gnso-ppsai-pdp-wg] [GNSO-ppsai-pdp-wg] Openness of WHOIS
by Stephanie Perrin March 4, 2015

March 4, 2015

Further to our discussion this morning about the openness (or otherwise) of WHOIS, here is the quote I was referring to from the SSAC document 003, from 2003: In order for Whois data to be readily available it must be both accessible and usable by automatic tools. To be accessible the Whois protocol must be updated to support the recent shift in the architecture to separate the functions of the registry and the registrar. This shift has made it impractical to support searching and frequently makes it difficult to find Whois services. To be usable the data returned by Whois services must in be a common format. *However, being accessible and usable must also protect a registrant's privacy. Many * *countries require that personal information is protected but in addition registrants may * *wish to discourage the unintended, undesirable, and otherwise unwanted uses of their * *Whois data. In particular, it is widely believed that Whois data is a source of email * *addresses for the distribution of spam. Methods must be developed to discourage the * *harvesting or mining of Whois information*. I interpret this as support for the notion that there have been reservations from parties other than civil society, with respect to the concept of all WHOIS data being freely available, from the early days of ICANN. Stephanie Perrin

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Consumer Privacy Bill of Rights 2015
by Carlton Samuels March 3, 2015

March 3, 2015

For those with an interest and apropos our discussion earlier today, the White House released a discussion draft of the long-awaited consolidated Consumer Privacy Bill of Rights; see attached. >From my quick scan, it seems to cover all the expected rights......and corresponding obligations. But the devil may yet be lurking in the details. It has a very broad definition of personal data - “*any data … under the control of a covered entity, not otherwise generally available to the public through lawful means, and … linked, or as a practical matter linkable by the covered entity, to a specific individual, or linked to a device that is associated with or routinely used by an individual.*” The exceptions to this definition are also instructive; cybersecurity and anonymised data included. You may also wish to pay special attention to Sections 403 and 404. It makes for a great interpretation of a saying from my part of the world; giving with the right hand even as you take back with the left. -Carlton ============================== Carlton A Samuels Mobile: 876-818-1799 *Strategy, Planning, Governance, Assessment & Turnaround* =============================

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