Statement of Kathy Kleiman, James Gannon and Stephanie Perrin, Members of the Noncommercial Stakeholders Group

We respectfully submit that Section 1.3.3, 1.3.3, Specific Topics on which there is currently no consensus within the WG, of this PPSAI Executive Summary and Interim Report is incomplete.  There are a number of topics on which there is currently no consensus within the WG and which need considerable work. These are issues well known and deeply discussed.

For the purposes of clarity and to lend depth to the comments and discussion to come, we submit this statement of how we would like to see Section 1.3.3 written.

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1.3.3, Specific Topics on which there is currently no consensus within the WG 

1.3.3.1 REVEAL

The WG’s has not yet reached final preliminary conclusions on key details of its “Reveal” recommendations (See Annex E of the Interim Report). There are many details still under discussion and for which the WG has not reached consensus. These include:

-          What remedies should a Customer be allowed in the event that a Reveal Request was falsely made or the data was improperly used (current recommendations provide mechanism only for Provider action)?

-          Should Requestors be allowed to escalate each and every rejection of a Reveal Request to a 3^rd party forum, or should the WG seek to adopt reasonable standards and thresholds for such appeals to avoid unnecessary and time-consuming appeals?  (Note: a Request for Reconsideration is already a part of the recommended process the WG has agreed to by consensus.)

-          What rights and protections should a Customer be allowed and encouraged to forth in her/his/its own defense to provide a reasonable defense for maintaining her/his/its privacy, even in the face of a copyright or trademark infringement allegation?

-          How can Customers be protected from extraterritorial requests from Law Enforcement from outside their country, when the use of their domain name is for legal purposes in their own country, but perhaps purposes deemed illegal in other countries [Note: even Interpol refuses to act across national lines in matters of political, military, religious and racial issues because of the enormous differences of law. Article 3, Interpol Constitution]

 Input and comments would be helpful on these issues.

1.3.3.2 THE COMPLEXITIES OF INTRUDING INTO NATIONAL LAW

Although the WG agreed that the mere fact that a domain name is registered by a commercial entity or by anyone conducting commercial activity should not preclude the use of P/P services[1][1], there was disagreement over whether domain names that are actively used for commercial transactions (e.g. the sale or exchange of goods or services) should be prohibited from using P/P services.

While most WG members did not believe such a prohibition is necessary or practical, some members believed that registrants of such domain names should not be able to use or continue using proxy or privacy services. [1]

Other members of the WG noted that fundraising and membership drives are often performed by the very groups and organizations seeking privacy/proxy registration for protection, including minority political groups, minority religious organizations, ethnic groups, organizations committed to change of racial policies, gender orientation groups, and publications engaged in freedom of expression. These groups and their representatives note that, in the laws of their countries, the mere collection of a donation or membership fee does not change their status from “non-commercial” to commercial. Others noted that “non-profit” status is limited to only a few countries.

Further, many of organizations, small businesses, home-based businesses (including those run by mothers and seniors) conduct their financial transactions through 3^rd party e-commerce companies, such as PayPal, and thus are not processing the financial transactions directly. Accordingly, many members in the WG submit there is no reason to breach the proxy/privacy of organizations and businesses purely and solely for this reason.  

Many members many in the WG submit that content regulation is far beyond the scope of ICANN and properly the scope of national laws – some of which has taken initiatives in this area which are clearly defined and properly limited in scope and application (e.g., Germany). 

For those that argued that it is necessary and practical to limit access to P/P services to exclude commercial entities, the following text was proposed to clarify and define their position: “domains used for online financial transactions for commercial purpose should be ineligible for privacy and proxy registrations.”

This suggestion has been debated strongly by the members of the WG and has not reached consensus as others submitted that:

"Attempting to distinguish the end purposes of a domain registration is not practicable for the purposes of determining eligibility for privacy/proxy services, and will unfairly discriminate against vulnerable groups, entrepreneurs, small businesses and organizations who wish to exercise their rights of freedom of expression rights on the Internet.

Input requested on the full issues, including questions below:

·        Should registrants of domain names associated with commercial activities and which are used for online financial transactions be prohibited from using, or continuing to use, privacy and proxy services?

·        Is this type of content regulation outside of ICANN's scope and mandate and the proper province of national law?