I agree fully with Stephanie here, and note the more experienced the Requestor/attorney, the less work the Provider has to do.  As Law Enforcement officers are bound by law to requirements in their representations in warrants, subpoenas and these upcoming Reveal Requests, so too are Attorneys bound by duties in representing the clients, being honest in their representations, and frankly being expert in the area of law in which they are working (e.g., you would not want me making representations/attorney as an attorney for clients with employment health and safety concerns -- as this is far outside my area of practice under US laws; IP infringement claims are another matter... ). 

A legal commentator wrote on legal ethics: "The principle of honesty governs the attorney in all forms of representation."

It will help all of our work if the Reveal Request is not made through a consultant, a secretary, clerk or computer-generated-letter. The Request as we have now proposed it will come from someone charged with knowing the facts, law and limitations of the alleged infringement and reveal request rules-- and that someone will be charged and entrusted with the information Revealed, if at the end of the review, it is appropriate to do so.

This should make life easier for the Provider - not harder -- reduce the need for parity and increase the speed of evaluation. It raises the level of trust all round - and with personal/sensitive data, and that's key.

Looking forward to our call on Tuesday!
Best,
Kathy

:
I don't believe there really is a requirement for parity here Susan.  The onus is on the requestor, who is seeking to avoid a more formal legal process, to prove that the claim is legitimate, and that it is being advanced by someone with legal authority.  If I may once again compare to revealing personal information in a government setting....if we release information for a lawful investigation, the investigating party has to be a police officer.  The persons who process the request do not have to be equivalent levels, they have to ensure that the form is filled in and signed by a legitimate investigating authority, they have to get a badge number, name, signature and the nature of the investigation.  For "slam dunk" cases, there is probably no need to have a legal authority on the registrars side authorize release, but I would hope for complex cases that the matter would be elevated to a senior level.  If not, a customer might have a good argument in a lawsuit.
I think we need to remember that this is the first time this matter has been dealt with in policy (ie regulated).  Just because it is not required now, does not mean that the situation should persist, any more than ignoring requests should be permitted any more. Of course if I am in error here, and it has been dealt with in policy prior to our current efforts, I would be delighted to hear about it. 
Stephanie Perrin
On 2015-03-24 2:38, Susan Kawaguchi wrote:
Well if we are going to raise the level of the requester to attorney or VP, principal etc.  then we should also require that anyone reviewing the request on behalf of the proxy service provider be of the same level.  This doesn’t make any sense to me and it is not scalable in my opinion but let’s at least give it equal weight.  IF the service providers agree to only let a principal, VP or attorney review the requests then I may be fine with the requirement. 



I did not understand Kathy’s proposal to include a “trusted requestor” status.  

Susan Kawaguchi

Domain Name Manager

Facebook Legal Dept.

 

Phone - 650 485-6064

From: Stephanie Perrin <stephanie.perrin@mail.utoronto.ca>
Date: Monday, March 23, 2015 at 8:10 PM
To: "gnso-ppsai-pdp-wg@icann.org" <gnso-ppsai-pdp-wg@icann.org>, Susan Kawaguchi <susank@fb.com>
Subject: Re: [Gnso-ppsai-pdp-wg] Revised Reveal Doc

Susan, you do represent one of the biggest Internet companies in the world, so surely you are not typical :-) I am sure you would be identified as a "trusted requestor" very quickly. ...but is it not possible for other less distinguishable requestors to get a letter of delegated authority that authorizes them to act for the company?  These are indeed serious allegations that are being made, it is reasonable to ask who is making them and under what authority.
For what it is worth, in government where I have worked, the authority to release personal information to law enforcement under a request without a warrant is managed by a delegated authority from the Minister....and it is held at a high level.  It does seem only logical that a request to a service provider to forsake their obligations to their customer in favour of an outside requestor, based on unproven allegations,  should be at a senior level.
Just my 2cents worth, I don't work in this area but I would certainly expect us to be setting in place a process that could stand up to the closest scrutiny.
Cheers Stephanie
On 2015-03-23 19:40, Susan Kawaguchi wrote:
Hi Kathy, 

I am not comfortable with this language.  I can¹t even imagine asking a
VP, General Partner or Principal to make this request.   I am not an
attorney so it would leave me out of the process completely and I
understand the current process.  This is to limiting and as most companies
do we rely on third parties to assist in the enforcement which doesn¹t
always include attorneys.  But they rely on clear instructions from the
trademark owner to make a claim.  Looking forward to the robust discussion
tomorrow. 

Signatory¹s name and legal relationship to the trademark
owner. Signatories shall be limited to those with ³first-hand² knowledge
of the
alleged infringement: ³Owner² (if trademark owned by individual),
³President,²
³Vice President,² ³General Partner² or ³Principal² (if trademark owned by
legal
entity)  or ³Attorney² with country and
state/provice/region of attorney¹s bar membership (if legal representative
appointed by trademark owner)




Susan Kawaguchi
Domain Name Manager
Facebook Legal Dept.
 
Phone - 650 485-6064






On 3/23/15, 3:08 PM, "Kathy Kleiman" <kathy@kathykleiman.com> wrote:


Hi Kiran,
Thank you for your comments. The agency issue worries some of us
greatly.  By what authority is the "agency" established; what actual
knowledge of the a) trademark or copyright owner's rights are there, b)
by what expertise can he/she make an assessment of infringement and c)
by what right, ability or authority can the signatory bind the trademark
or copyright owner to the allegations being made.

I should note that the proposed changes follow the DMCA: for a Reveal
Subpoena, the request must be done by an attorney for the Requester or
by the Requester himself/herself/itself (in the US we call it "pro se").

Best,
Kathy
:

Hi Kathy,

Thanks for forwarding this to the group, and special thanks for
forwarding with enough time to review before the call!

We can certainly discuss in more depth on the call tomorrow, but I am
not a fan of the changes in Section II.  I'm concerned about the level
of minutiae in the language, and I'm wondering how and why that level of
micromanagement will be helpful/probative information to the Service
Provider.  In very large companies, the trademark
owner/president/VP/partner, etc. isn't actually involved directly in the
enforcement activity.  It should be enough to demonstrate agency, as the
previous language did.

Perhaps I will have more later, but I wanted to float that to the group
before the call.

Thanks,

Kiran

Kiran Malancharuvil
Policy Counselor
MarkMonitor
415.222.8318 (t)
415.419.9138 (m)
www.markmonitor.com



-----Original Message-----
From: gnso-ppsai-pdp-wg-bounces@icann.org
[mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman
Sent: Sunday, March 22, 2015 11:19 AM
To: gnso-ppsai-pdp-wg@icann.org; Metalitz, Steven; Graeme Bunton
Subject: [Gnso-ppsai-pdp-wg] Revised Reveal Doc

Hi All,
Steve and I talked on Friday, and he asked me to circulate a Revised
Reveal document -- which is attached.  This document has three types of
changes based on our discussion last Tuesday and subsequent research:

1. To the title (reset pending further discussion) 2. To Section II,
the Request Templates to clarify the requester and his/her direct
knowledge of the alleged infringement and legal authority to represent
the Requester, and 3. Annex (reset to original pending discussion with
drafters over the narrow goals and intents of this section)

All other edits remain - to continue our excellent discussion of high
standards for disclosure, human rights issues, etc. There is also much
to discuss regarding follow-up processes (after the Request) including
a) when are appeals allowed and for whom, and b) how does a Provider
challenge an alleged "wrongful disclosure" of its Customer's information?

Best and have a good rest of weekend,
Kathy

_______________________________________________
Gnso-ppsai-pdp-wg mailing list
Gnso-ppsai-pdp-wg@icann.orghttps://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg


_______________________________________________
Gnso-ppsai-pdp-wg mailing list
Gnso-ppsai-pdp-wg@icann.orghttps://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg

 



_______________________________________________
Gnso-ppsai-pdp-wg mailing list
Gnso-ppsai-pdp-wg@icann.org
https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg