Gnso-ppsai3

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gnso-ppsai3@icann.org

September 2015

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PROPOSAL: Sub Team 3 call this Friday? (Re: Follow up from WG call yesterday)
by Mary Wong Nov. 3, 2015

Nov. 3, 2015

Hello everyone can we do a call this Friday 25 September at 1900 UTC? 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: Mary Wong <mary.wong(a)icann.org> Date: Tuesday, September 22, 2015 at 23:12 Cc: "gnso-ppsai3(a)icann.org" <gnso-ppsai3(a)icann.org> Subject: Re: Sub Team call? (Re: Follow up from WG call yesterday) > Thanks very much, Todd! Everyone can we ask that you let us know your > availability for a Sub Team call at any of the times indicated by Todd, below? > Thank you all! > > 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: "Williams, Todd" <Todd.Williams(a)turner.com> > Date: Tuesday, September 22, 2015 at 23:00 > To: Mary Wong <mary.wong(a)icann.org> > Cc: "gnso-ppsai3(a)icann.org" <gnso-ppsai3(a)icann.org> > Subject: RE: Sub Team call? (Re: Follow up from WG call yesterday) > >> Thank you Mary. I think a call is a good idea. Friday at or after 1900 UTC >> is better for me. Though if we want to do tomorrow, I could do 1400-1500 UTC >> or 1600-1800 UTC. >> >> Todd. >> >> >> From: gnso-ppsai3-bounces(a)icann.org [mailto:gnso-ppsai3-bounces@icann.org] On >> Behalf Of Mary Wong >> Sent: Tuesday, September 22, 2015 5:05 AM >> Cc: gnso-ppsai3(a)icann.org >> Subject: [Gnso-ppsai3] Sub Team call? (Re: Follow up from WG call yesterday) >> Importance: High >> >> >> Hello again everyone, >> >> >> >> Following a discussion with the WG co-chairs yesterday, we would like to >> suggest that the Sub Team consider doing a call this week to review the notes >> from the last WG call (see below), with the goal of presenting >> recommendations and/or alternative proposals to the full WG for discussion >> next week (i.e. Tuesday 29 September). >> >> >> >> If you are able to do a call this week, would either Wednesday (at or after >> 1400 UTC) or Friday (at or after 1900 UTC) work for you? >> >> >> >> 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: Mary Wong <mary.wong(a)icann.org> >> Date: Wednesday, September 16, 2015 at 16:27 >> Cc: "gnso-ppsai3(a)icann.org" <gnso-ppsai3(a)icann.org> >> Subject: Follow up from WG call yesterday >> >> >>> >>> Hello everybody, >>> >>> >>> >>> Here are the notes I captured from the WG discussion yesterday; we should >>> have the full transcript and MP3 recording uploaded by tomorrow at the >>> latest but I thought these notes might be helpful, at least as an initial >>> framework for the next Sub Team discussion: >>> >>> >>> >>> Section I.B.(iii): >>> >>> - Need to discuss retaining it in some form; costs are real for providers >>> >>> >>> >>> Section II: >>> >>> - Should there be provision for indemnification to provider against misuse >>> of data? (NOTE: unlikely to gain support, so possibly no need to add) >>> >>> - A(6)(b)(ii): can a requester under the new wording keep/use the data to >>> assocate with other information about the registrant e.g. for future or >>> other requests? Does reverse apply to registrar/provider ie do they keep >>> data that's sent to them? >>> >>> >>> >>> Section III: >>> >>> - III.B: Secure communications may not be as easily or readily done as might >>> be desired (so revision is well-intended but maybe not entirely practical) >>> >>> - 5 calendar days rather than 3 is more reasonable from providers' >>> perspective >>> >>> - saying "encouraged" but not mandating action would nullify need for this >>> section B (NOTE: many people on the call agree with this, one objected) >>> >>> - III.C.: use some other word than ³surrender², and one that makes clear >>> this does not mean a transfer; in any event, clarify that it's a deletion at >>> the option of a customer (NOTE: there was some discussion over whether >>> providers must be required to offer this option; reminder that previous WG >>> discussions had led to agreement to NOT make it mandatory due to varying >>> provider practices) >>> >>> - III.C.(v) & (vi): do they overlap? Should they be merged? >>> >>> >>> >>> Annex I: >>> >>> - Keep both options to clarify they are two possible ways of dealing with >>> the issues? >>> >>> >>> >>> Would you like to do a Sub Team call to walk through these suggestions, or >>> should we continue to discuss first by email? I will check with the WG >>> co-chairs when they would like a revised, more finalized, set of >>> recommendations to be presented to the WG (if possible). >>> >>> >>> >>> 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: "Williams, Todd" <Todd.Williams(a)turner.com> >>> Date: Tuesday, September 15, 2015 at 21:19 >>> To: Holly Raiche <h.raiche(a)internode.on.net>, Mary Wong >>> <mary.wong(a)icann.org> >>> Cc: "gnso-ppsai3(a)icann.org" <gnso-ppsai3(a)icann.org> >>> Subject: RE: [Gnso-ppsai3] Additional Comments for Sub Team Consideration >>> >>> >>>> >>>> Thanks Holly. As I mentioned when I circulated the draft (see attached >>>> email): >>>> >>>> ³for Sara, Kathy, and the others on our sub-team who have argued that >>>> ³verifiable evidence² means something higher let us know how you would >>>> further edit Sections II(A), (B), and (C) to meet whatever ³higher² >>>> standard you have in mind.² >>>> >>>> >>>> From:gnso-ppsai3-bounces@icann.org [mailto:gnso-ppsai3-bounces@icann.org] >>>> On Behalf Of Holly Raiche >>>> Sent: Tuesday, September 15, 2015 8:43 AM >>>> To: Mary Wong <mary.wong(a)icann.org> >>>> Cc: gnso-ppsai3(a)icann.org >>>> Subject: Re: [Gnso-ppsai3] Additional Comments for Sub Team Consideration >>>> >>>> Yes, it does help - particularly since I recognise my words in the extract. >>>> What it suggests, however, is acceptance that the elements a requested >>>> gives to a provider amounts to the standard of evidence that is >>>> verifiable¹ - as described below. My question to the group, therefore, is >>>> whether the addition of those words has been agreed upon by the group. If >>>> not, the words should not be there; their mere presence suggests agreement, >>>> and puts the onus on those of us who don¹t agree to argue for the removal >>>> of words that were not agreed to. >>>> >>>> >>>> >>>> Sorry to be pedantic, folks, but the presence of those words suggests a >>>> level of agreement that I am not aware of. >>>> >>>> >>>> >>>> Holly >>>> >>>> On 15 Sep 2015, at 10:27 pm, Mary Wong <mary.wong(a)icann.org> wrote: >>>> >>>> >>>> >>>>> Hi Holly and everyone, >>>>> >>>>> >>>>> >>>>> As Todd noted in his report to the full WG last week on behalf of the Sub >>>>> Team, the document doesn¹t represent the finished consensus product of the >>>>> Sub Team but rather is being presented as a tool for further WG >>>>> discussion. The document includes certain revisions that were added to >>>>> more fully reflect the comments that were received, and as such could be >>>>> one form of a revised Annex E however, as Todd mentioned, it isn¹t the >>>>> agreed result of the Sub Team¹s substantive analysis. >>>>> >>>>> >>>>> >>>>> Similarly, in the summary document that was also sent out in tandem, here >>>>> is how the Sub Team¹s discussion on the question of ³verifiable evidence² >>>>> was presented: >>>>> >>>>> >>>>> >>>>> "Further, the Save Domain Privacy petition, which had 10,042 signatories >>>>> and also included [x] number of additional statements, argued that >>>>> ³privacy providers should not be forced to reveal my private information >>>>> without verifiable evidence of wrongdoing.² We as a sub-team could not >>>>> agree on how to interpret ³verifiable evidence,² and will leave that >>>>> discussion to the larger WG. Some on the sub-team viewed these comments >>>>> as supporting Annex E because the requirements in Annex E as currently >>>>> formulated can be interpreted as constituting verifiable evidence, while >>>>> others on the sub-team interpret verifiable evidence¹ as requiring a >>>>> court order and therefore not in support of Annex E. However, some also >>>>> noted that the word ³verifiable² does not imply that the evidence has been >>>>> tested through a legal process; rather, it simply points toward requiring >>>>> that evidence provided must be credible/provable enough so that, in a >>>>> legal proceeding, it would withstand legal scrutiny, but does not >>>>> necessarily imply that there must have been a court process in all cases." >>>>> >>>>> >>>>> >>>>> Does this help? >>>>> >>>>> >>>>> >>>>> 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: Holly Raiche <h.raiche(a)internode.on.net> >>>>> Date: Tuesday, September 15, 2015 at 20:18 >>>>> To: Mary Wong <mary.wong(a)icann.org>, "gnso-ppsai3(a)icann.org" >>>>> <gnso-ppsai3(a)icann.org> >>>>> Cc: "Williams, Todd" <Todd.Williams(a)turner.com>, Sara Bockey >>>>> <sbockey(a)godaddy.com> >>>>> Subject: Re: [Gnso-ppsai3] Additional Comments for Sub Team Consideration >>>>> >>>>> >>>>>> >>>>>> Folks >>>>>> >>>>>> >>>>>> >>>>>> I apologise for not participating over the past week - I¹ve been away. >>>>>> >>>>>> >>>>>> >>>>>> My question is, next to the headings on request for templates, the words >>>>>> after requester provides to the service provider, the words verifiable >>>>>> evidence of wrong doing, including¹. >>>>>> >>>>>> >>>>>> >>>>>> What that implies is that the following text lists what would constitute >>>>>> verifiable evidence¹ and indeed, the word including¹ suggests that >>>>>> other elements can also constitute verifiable evidence¹. Has the group >>>>>> agreed on this? >>>>>> >>>>>> >>>>>> >>>>>> My impression was that we had not yet agreed what the term meant, but >>>>>> that it must be evidence of a very high standard - impliedly something >>>>>> that could be used in court processes. I am not convinced that the >>>>>> elements listed under Heading II meet that test. >>>>>> >>>>>> >>>>>> >>>>>> So Mary, others, was this agreed? >>>>>> >>>>>> >>>>>> >>>>>> Thanks >>>>>> >>>>>> >>>>>> >>>>>> Holly >>>>>> >>>>>> On 15 Sep 2015, at 7:11 am, Sara Bockey <sbockey(a)godaddy.com> wrote: >>>>>> >>>>>> >>>>>> >>>>>>> Thanks, Todd. >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: "Williams, Todd" >>>>>>> Date: Monday, September 14, 2015 at 1:18 PM >>>>>>> To: Sara Bockey, Mary Wong, "gnso-ppsai3(a)icann.org >>>>>>> <mailto:gnso-ppsai3@icann.org> " >>>>>>> Subject: RE: [Gnso-ppsai3] Additional Comments for Sub Team >>>>>>> Consideration >>>>>>> >>>>>>> >>>>>>> >>>>>>> Thanks Sara. I¹m still confused. In order: >>>>>>> >>>>>>> >>>>>>> >>>>>>> · I still don¹t see any mention in the CDT comment re: removal of >>>>>>> alleged infringing materials in lieu of disclosure. I do see support >>>>>>> for the additional language that the attached draft adds to III(C)(vii) >>>>>>> about ³specific information, facts and/or circumstances showing that >>>>>>> disclosure to the Requester will endanger the safety of the Customer² >>>>>>> (in fact, that language was added specifically to capture the point of >>>>>>> the paragraph from the CDT comment that you¹ve quoted below). But that >>>>>>> is completely different from what you¹ve added, for which I cannot find >>>>>>> any support in any of the public comments. I also don¹t understand your >>>>>>> claim that ³rights and actions available to the registrant are sorely >>>>>>> lacking in Annex E² given that Annex E explicitly contemplates notice >>>>>>> to the registrant and contemplates input from the registrant in Sections >>>>>>> III(A), III(C)(ii), III(C)(iii), III(C)(iv), III(C)(vi), and >>>>>>> III(C)(vii). >>>>>>> >>>>>>> · The portion of the NCSG comment that you¹ve cited addressed the >>>>>>> appeals mechanism of Section III(F), not the reconsideration mechanism >>>>>>> of III(E). In fact, the attached draft removes the appeal mechanism of >>>>>>> III(F) precisely because of the language that you quoted below from the >>>>>>> NCSG comment (among others). But that language has nothing to do with >>>>>>> III(E). >>>>>>> >>>>>>> · I don¹t understand what the comments from Key Systems, Ralf >>>>>>> Haring, or Adam Creighton have to do with III(E) which again, is only >>>>>>> talking about a request for reconsideration. Moreover, the Key Systems >>>>>>> comment is simply inaccurate: the Disclosure Framework never ³assume[d] >>>>>>> disclosure if certain process steps are followed regardless of the >>>>>>> merits of the complaint² a point that the attached revised draft now >>>>>>> makes explicit in the preamble (³by not requiring that disclosure >>>>>>> automatically follow any given request²). >>>>>>> >>>>>>> >>>>>>> >>>>>>> Just to reiterate: I¹ve always viewed our job in the two documents that >>>>>>> our sub-team has drafted as being to accurately report to the larger WG >>>>>>> what the comments that we¹ve reviewed say. Which means two things: 1) >>>>>>> we have to be true to the comments, and not reinterpret them to say >>>>>>> something they don¹t; and 2) we have to reserve our advocacy for or >>>>>>> against certain points from those comments for the larger WG discussion. >>>>>>> That¹s what I tried to do in the attached. So if you want to argue >>>>>>> against Annex E, that¹s fine do so on the call tomorrow. In fact, I¹m >>>>>>> planning to argue against several of the proposed changes that are >>>>>>> included in the attached. But I still included those proposed changes >>>>>>> in the attached draft, and accurately noted which comments they were >>>>>>> based on because to do otherwise would be misleading to the larger WG. >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: Sara Bockey [mailto:sbockey@godaddy.com >>>>>>> <mailto:sbockey@godaddy.com> ] >>>>>>> Sent: Monday, September 14, 2015 3:50 PM >>>>>>> To: Williams, Todd <Todd.Williams(a)turner.com >>>>>>> <mailto:Todd.Williams@turner.com> >; Mary Wong <mary.wong(a)icann.org >>>>>>> <mailto:mary.wong@icann.org> >; gnso-ppsai3(a)icann.org >>>>>>> <mailto:gnso-ppsai3@icann.org> >>>>>>> Cc: Sara Bockey <sbockey(a)godaddy.com <mailto:sbockey@godaddy.com> > >>>>>>> Subject: Re: [Gnso-ppsai3] Additional Comments for Sub Team >>>>>>> Consideration >>>>>>> >>>>>>> >>>>>>> >>>>>>> Todd, >>>>>>> >>>>>>> >>>>>>> >>>>>>> Please see my comments inline below. >>>>>>> >>>>>>> >>>>>>> >>>>>>> Disclaimer: I do not support Annex E. >>>>>>> >>>>>>> >>>>>>> >>>>>>> Sara >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: "Williams, Todd" >>>>>>> Date: Monday, September 14, 2015 at 11:57 AM >>>>>>> To: Sara Bockey, Mary Wong, "gnso-ppsai3(a)icann.org >>>>>>> <mailto:gnso-ppsai3@icann.org> " >>>>>>> Subject: RE: [Gnso-ppsai3] Additional Comments for Sub Team >>>>>>> Consideration >>>>>>> >>>>>>> >>>>>>> >>>>>>> Sara: >>>>>>> >>>>>>> >>>>>>> >>>>>>> Two quick questions on this as I was getting ready for our call >>>>>>> tomorrow: >>>>>>> >>>>>>> >>>>>>> >>>>>>> 1) Your addition of a new III(C)(v) stating ³the Customer has >>>>>>> removed the infringing trademark and/or copyright material in lieu of >>>>>>> disclosure² what public comment that we reviewed was that change based >>>>>>> on? >>>>>>> >>>>>>> >>>>>>> >>>>>>> Based on CDT¹s comment re registrant¹s ability to respond to allegations >>>>>>> removal of alleged infringing materials in lieu of disclosure would >>>>>>> fall into this category. Rights and actions available to the registrant >>>>>>> are sorely lacking in Annex E. >>>>>>> >>>>>>> >>>>>>> Mere allegation of infringement or illegality is insufficient cause for >>>>>>> a provider to disclose a customer¹s data to a third party; it is >>>>>>> frequently trivially easy for a party abusing the system to allege >>>>>>> frivolous or nonexistent civil claims to justify a demand for personal >>>>>>> information. Registrants should have the ability and opportunity to >>>>>>> respond to the allegations and to the dangers to which they, their >>>>>>> families, and their organizations might be subjected, and to obtain >>>>>>> counsel on these matters. >>>>>>> Revealing a customer¹s registration data should only occur when there >>>>>>> has been a substantial >>>>>>> showing of likelihood of abuse and only after due process. >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> 2)Can you show me where in the NCSG comment (here: >>>>>>> >>>>>>> http://forum.icann.org/lists/comments-ppsai-initial-05may15/pdfBoyWzlMS3 >>>>>>> q.pdf >>>>>>> <http://forum.icann.org/lists/comments-ppsai-initial-05may15/pdfBoyWzlMS >>>>>>> 3q.pdf> >>>>>>> >>>>>>> ) the NCSG argued for the addition of the clause ³in instances where >>>>>>> Requester has discovered and submitted additional evidence or >>>>>>> information which warrants consideration² to III(E)? You noted that >>>>>>> this change was based on the NCSG comment, but I can¹t find anything in >>>>>>> that comment that mentions III(E) though admittedly I could have >>>>>>> missed it. >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> Based on NCSG comment re unlimited appeals . >>>>>>> >>>>>>> Under no circumstances should Intellectual Property Interests, Law >>>>>>> Enforcement or any other Requestors have unlimited appeals to third >>>>>>> party dispute resolution providers. It will be far more than an >>>>>>> implementation detail to define this appellate procedure but a whole >>>>>>> new arbitration forum of its own will need to be created and a UDRP >>>>>>> process undiscussed and unplanned by this Working Group. All >>>>>>> deliberation about appeal mechanisms should be set aside at this time. >>>>>>> Any Intellectual Property owner or group that feels a Provider is >>>>>>> routinely denying appropriate requests will have full access to the >>>>>>> growing and increasingly responsive ICANN Compliance Team which will >>>>>>> be accessible to Complainers through the accreditation process now being >>>>>>> created. >>>>>>> >>>>>>> Key Systems¹ comment would also support this addition: >>>>>>> >>>>>>> We do not support the proposed Disclosure Framework as it assumes >>>>>>> disclosure if certain process steps are followed regardless of the >>>>>>> merits of the complaint. >>>>>>> >>>>>>> As well as Ralf Haring¹s comment: >>>>>>> >>>>>>> [Disagree with proposal that] Providers can be forced to give your >>>>>>> private contact details to anyone complaining that your site violates >>>>>>> their copyright or trademark. >>>>>>> >>>>>>> And Adam Creighton¹s comment: >>>>>>> >>>>>>> I think the language is too loose, and opens individuals up to frivolous >>>>>>> litigation from IP rights owners and third-party agencies whose >>>>>>> contracted relationship is to expand IP brand presence. >>>>>>> >>>>>>> >>>>>>> Thanks. >>>>>>> >>>>>>> >>>>>>> Todd. >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: Sara Bockey [mailto:sbockey@godaddy.com >>>>>>> <mailto:sbockey@godaddy.com> ] >>>>>>> Sent: Friday, September 04, 2015 4:40 PM >>>>>>> To: Williams, Todd <Todd.Williams(a)turner.com >>>>>>> <mailto:Todd.Williams@turner.com> >; Mary Wong <mary.wong(a)icann.org >>>>>>> <mailto:mary.wong@icann.org> >; gnso-ppsai3(a)icann.org >>>>>>> <mailto:gnso-ppsai3@icann.org> >>>>>>> Cc: Sara Bockey <sbockey(a)godaddy.com <mailto:sbockey@godaddy.com> > >>>>>>> Subject: Re: [Gnso-ppsai3] Additional Comments for Sub Team >>>>>>> Consideration >>>>>>> >>>>>>> >>>>>>> >>>>>>> Hi all, >>>>>>> >>>>>>> >>>>>>> >>>>>>> As promised, attached is a redline of my input to the proposed changes >>>>>>> Todd drafted. Todd was pretty thorough and had included several >>>>>>> revisions I had in mind based on the comments so my edits are limited to >>>>>>> a few comments and additions. >>>>>>> >>>>>>> >>>>>>> >>>>>>> Best regards, >>>>>>> >>>>>>> >>>>>>> >>>>>>> Sara >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: <gnso-ppsai3-bounces(a)icann.org >>>>>>> <mailto:gnso-ppsai3-bounces@icann.org> > on behalf of "Williams, Todd" >>>>>>> Date: Wednesday, September 2, 2015 at 2:58 PM >>>>>>> To: Mary Wong, "gnso-ppsai3(a)icann.org <mailto:gnso-ppsai3@icann.org> " >>>>>>> Subject: Re: [Gnso-ppsai3] Additional Comments for Sub Team >>>>>>> Consideration >>>>>>> >>>>>>> >>>>>>> >>>>>>> All: >>>>>>> >>>>>>> >>>>>>> >>>>>>> As promised on our call, attached is a redline of the Draft Disclosure >>>>>>> Framework, with annotations noting the source of each proposed change. >>>>>>> Several notes as you review: >>>>>>> >>>>>>> >>>>>>> >>>>>>> · I know that we¹ve debated whether ³verifiable evidence² means >>>>>>> more than what is currently in Sections II(A), (B), and (C). You¹ll see >>>>>>> that I¹ve added the exact wording from the savedomainprivacy.org >>>>>>> <http://savedomainprivacy.org/> petition ³verifiable evidence of >>>>>>> wrongdoing² to those sections. I think that is a good fit, as of >>>>>>> right now. But for Sara, Kathy, and the others on our sub-team who have >>>>>>> argued that ³verifiable evidence² means something higher let us know >>>>>>> how you would further edit Sections II(A), (B), and (C) to meet whatever >>>>>>> ³higher² standard you have in mind. >>>>>>> >>>>>>> · You¹ll note that I briefly added a reference to the comment from >>>>>>> Com Laude (which I think we had omitted from our summary). And that I >>>>>>> did not reference the comment from Aaron Myers (which we¹ve referenced >>>>>>> in our summary, but which doesn¹t really offer any edits to the >>>>>>> Disclosure Framework). Otherwise I think I¹ve covered everything that >>>>>>> we reviewed in terms of edits to the Disclosure Framework though let >>>>>>> me know if anybody sees anything I¹ve missed. >>>>>>> >>>>>>> · Just to be clear for the record: the attached is a revised >>>>>>> Disclosure Framework that illustrates and attempts to account for all of >>>>>>> the proposed edits that we received from the public comments, for the >>>>>>> larger Working Group¹s reference. But it is not how I would have edited >>>>>>> the Disclosure Framework. In fact, I¹ll reserve the right to argue >>>>>>> against some of these proposed edits, once we get into the larger WG >>>>>>> discussion. Just wanted to make that clear so that nobody thinks these >>>>>>> edits are mine (since I¹m the one who drafted the document). >>>>>>> >>>>>>> >>>>>>> >>>>>>> Thanks. >>>>>>> >>>>>>> >>>>>>> >>>>>>> Todd. >>>>>>> >>>>>>> >>>>>>> >>>>>>> From:gnso-ppsai3-bounces@icann.org >>>>>>> <mailto:gnso-ppsai3-bounces@icann.org> >>>>>>> [mailto:gnso-ppsai3-bounces@icann.org >>>>>>> <mailto:gnso-ppsai3-bounces@icann.org> ] On Behalf Of Mary Wong >>>>>>> Sent: Wednesday, September 02, 2015 6:59 AM >>>>>>> To: gnso-ppsai3(a)icann.org <mailto:gnso-ppsai3@icann.org> >>>>>>> Subject: [Gnso-ppsai3] Additional Comments for Sub Team Consideration >>>>>>> >>>>>>> >>>>>>> >>>>>>> Hello again everyone, >>>>>>> >>>>>>> >>>>>>> >>>>>>> As you look through the proposed revised summary document (below), you >>>>>>> may also wish to consider whether some of the additional comments that >>>>>>> were included in Part 4 of the overall WG Public Comment Review Tool >>>>>>> might be useful such that additional notes or recommendations can be >>>>>>> made, or existing language amended. For your convenience I¹ve extracted >>>>>>> ten such comments which, while not sent in as specific responses to the >>>>>>> Preliminary Recommendations and Annex E that this Sub Team is analysing, >>>>>>> nonetheless seem relevant generally. >>>>>>> >>>>>>> >>>>>>> >>>>>>> I attach these ten comments in tabular form to this email, and welcome >>>>>>> the Sub Team¹s discussion and comments on whether any of them ought to >>>>>>> be considered as well as your thoughts on the summary document. >>>>>>> >>>>>>> >>>>>>> >>>>>>> As the Sub Team is due to report back to the full WG next Tuesday, >>>>>>> please let me know also if you think a call before then amongst the Sub >>>>>>> Team members might be needed. >>>>>>> >>>>>>> >>>>>>> >>>>>>> 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 <mailto:mary.wong@icann.org> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: Mary Wong <mary.wong(a)icann.org <mailto:mary.wong@icann.org> > >>>>>>> Date: Monday, August 31, 2015 at 15:46 >>>>>>> To: "gnso-ppsai3(a)icann.org <mailto:gnso-ppsai3@icann.org> " >>>>>>> <gnso-ppsai3(a)icann.org <mailto:gnso-ppsai3@icann.org> > >>>>>>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview >>>>>>> >>>>>>> >>>>>>> >>>>>>> Hello everyone, in an attempt to facilitate further dialogue and, >>>>>>> hopefully, consensus on a way forward on this issue, I¹ve taken the >>>>>>> liberty of amending Kathy¹s document to take into account Holly¹s >>>>>>> comments as well as to attempt to place certain comments (e.g. the >>>>>>> ICA¹s, EasyDNS¹) more specifically within a particular category. I >>>>>>> attach both a redlined and clean copy of this latest updated version >>>>>>> (with the clean copy including yellow highlighted portions where the >>>>>>> most significant language changes are suggested). I have not yet broken >>>>>>> the comments down further into the registrant/provider distinction that >>>>>>> Todd noted, but can of course do so if this is viewed as useful. >>>>>>> >>>>>>> >>>>>>> >>>>>>> Please note that this is not a staff position that is being suggested, >>>>>>> but merely an attempt to document where the Sub Team¹s discussion seems >>>>>>> to be at the moment. I hope this is helpful. >>>>>>> >>>>>>> >>>>>>> >>>>>>> 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 <mailto:mary.wong@icann.org> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: <gnso-ppsai3-bounces(a)icann.org >>>>>>> <mailto:gnso-ppsai3-bounces@icann.org> > on behalf of "Williams, Todd" >>>>>>> <Todd.Williams(a)turner.com <mailto:Todd.Williams@turner.com> > >>>>>>> Date: Friday, August 28, 2015 at 22:40 >>>>>>> To: Kathy Kleiman <kathy(a)kathykleiman.com >>>>>>> <mailto:kathy@kathykleiman.com> >, "gnso-ppsai3(a)icann.org >>>>>>> <mailto:gnso-ppsai3@icann.org> " <gnso-ppsai3(a)icann.org >>>>>>> <mailto:gnso-ppsai3@icann.org> > >>>>>>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview >>>>>>> >>>>>>> >>>>>>> >>>>>>> Thanks Kathy. I both agree and disagree with what you¹ve said below. >>>>>>> >>>>>>> >>>>>>> >>>>>>> I strongly agree that ³the key is the quotes that have come out of the >>>>>>> comments.² I¹ve said repeatedly that our job as a sub-team is not to >>>>>>> advocate, but to simply present the comments to the WG in as accurate >>>>>>> and objective a way as possible. To the extent that we then want to >>>>>>> advocate for our own positions as part of the larger WG, we can do so. >>>>>>> Moreover, part of the reason why I feel so strongly that ³the key is the >>>>>>> quotes² is that I think we have to take the comments at face value, and >>>>>>> then debate as WG whether we can reach consensus on what they actually >>>>>>> say not on what we want them to say. That¹s why I felt so strongly >>>>>>> that ³verifiable evidence² should not be reinterpreted to mean a court >>>>>>> order. It is also what animated my email exchange with Stephanie in the >>>>>>> larger WG (attached). >>>>>>> >>>>>>> >>>>>>> >>>>>>> And if we are in fact faithful to what the comments actually say, then >>>>>>> it is a mistake to lump all of the ³court order² comments into one >>>>>>> monolithic group. I¹ve given some examples of substantive differences >>>>>>> below. But let me give another one: if we look at what they actually >>>>>>> say, the ³court order² comments are very much divided based on whether >>>>>>> the comment came from an individual registrant or from a >>>>>>> registrar/provider. Which of course makes sense: a registrant will tend >>>>>>> to look at these issues very differently than a provider. Specifically, >>>>>>> as you correctly note in our draft, the vast majority of comments >>>>>>> (11,000+) from individuals/registrants said that ³Everyone deserves the >>>>>>> right to privacy² and that ³No one¹s personal information should be >>>>>>> revealed without a court order, regardless of whether the request comes >>>>>>> from a private individual or law enforcement agency.² And of course, we >>>>>>> can understand why registrants would argue that their right to privacy >>>>>>> is inviolate, and that it should never be abrogated unless a court >>>>>>> blesses it. >>>>>>> >>>>>>> >>>>>>> >>>>>>> But note that the registrar/provider comments in the ³court order² group >>>>>>> do NOT say the same thing. Rather, they are focused on retaining their >>>>>>> discretion as to when to disclose or publish, and do not want an >>>>>>> accreditation standard that requires them to do so absent a court order. >>>>>>> Hence my point about the word ³require² in the Blacknight comment. See >>>>>>> also the Key Systems comment: ³Disclosure or publication should never be >>>>>>> the automatic result of a process, but rather remain an option of the >>>>>>> provider.² And others. So one key distinction b/w the >>>>>>> registrant/individual comments and the registrar/provider comments is >>>>>>> that the registrant comments do not want disclosure or publication EVER >>>>>>> unless following a court order, while the provider comments want a court >>>>>>> order first if SOMEBODY ELSE wants them to disclose or publish, but not >>>>>>> if THEY want to disclose or publish. And we can understand why, given >>>>>>> how many provider Terms of Service include language that gives them >>>>>>> discretion to basically turn off a P/P Service whenever they want (for >>>>>>> example, if the registrant stops paying them), without any kind of >>>>>>> process beforehand (due process or otherwise). See below (among many >>>>>>> others): >>>>>>> >>>>>>> >>>>>>> >>>>>>> · Blacknight: https://www.blacknight.com/acceptable-usage.html >>>>>>> <https://www.blacknight.com/acceptable-usage.html> . >>>>>>> >>>>>>> · Whoisprivacy.com <http://whoisprivacy.com/> , Ltd.: >>>>>>> http://www.whoisprivacyservices.com.au/terms.htm >>>>>>> <http://www.whoisprivacyservices.com.au/terms.htm> . >>>>>>> >>>>>>> · EuroDNS S.A.: >>>>>>> https://www.eurodns.com/terms-and-conditions/whois-privacy >>>>>>> <https://www.eurodns.com/terms-and-conditions/whois-privacy> . >>>>>>> >>>>>>> · 1&1 Internet, Inc.: http://www.1and1.com/TcPdr?__lf=Static >>>>>>> <http://www.1and1.com/TcPdr?__lf=Static> . >>>>>>> >>>>>>> · Domain.com <http://domain.com/> , LLC: >>>>>>> http://www.domain.com/legal/legal_domain.bml#domain-privacy-service >>>>>>> <http://www.domain.com/legal/legal_domain.bml#domain-privacy-service> . >>>>>>> >>>>>>> · DomainIt, Inc.: https://www.domainit.com/terms.html >>>>>>> <https://www.domainit.com/terms.html> . >>>>>>> >>>>>>> · Moniker Privacy Services, LLC: >>>>>>> http://www.moniker.com/legal/registration-agreement >>>>>>> <http://www.moniker.com/legal/registration-agreement> . >>>>>>> >>>>>>> >>>>>>> >>>>>>> So we can understand why providers would not want an accreditation >>>>>>> regime that requires them to get a court order before they turn off a >>>>>>> registrant¹s privacy service (and to rewrite their Terms of Service >>>>>>> accordingly). In fact, Volker has already admitted both on the email >>>>>>> list (see attached) and on our weekly calls (see transcript of 8-11-15 >>>>>>> call) that such an accreditation requirement would have such a ³severe >>>>>>> impact² on the economic realities of providers (in other words, would >>>>>>> cost them so much money), that they could never agree to such a >>>>>>> requirement. But of course, if I¹m an individual registrant concerned >>>>>>> about my privacy and due process, then I could care less about the >>>>>>> ³economic realities² of providers. >>>>>>> >>>>>>> >>>>>>> >>>>>>> My point is only that we can¹t gloss over that important distinction >>>>>>> (and others) by lumping all of the ³court order² comments together as if >>>>>>> they were coming from the same place and advocating for the same thing. >>>>>>> They¹re not. >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: Kathy Kleiman [mailto:kathy@kathykleiman.com >>>>>>> <mailto:kathy@kathykleiman.com> ] >>>>>>> Sent: Friday, August 28, 2015 8:44 AM >>>>>>> To: Williams, Todd <Todd.Williams(a)turner.com >>>>>>> <mailto:Todd.Williams@turner.com> >; gnso-ppsai3(a)icann.org >>>>>>> <mailto:gnso-ppsai3@icann.org> >>>>>>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview >>>>>>> >>>>>>> >>>>>>> >>>>>>> Hi Todd, >>>>>>> The entire WG is now looking to our comments to show what supports Annex >>>>>>> E (deemed generally to be a lower standard than court order) and Court >>>>>>> Order (deemed to be a much higher standard than Annex E). What we are >>>>>>> talking about is the floor, not the ceiling, right, for accreditation? >>>>>>> Namely, what is the minimum requirement for disclosure of proxied data? >>>>>>> I see it as really quite binary - up or down (Annex E or court order for >>>>>>> private requests to p/p providers) - but I can understand if the subteam >>>>>>> thinks differently. >>>>>>> >>>>>>> What I think is key is the quotes that have come out of the comments. >>>>>>> Provided we keep the quotes, I'm good.I can rework, but not until end of >>>>>>> weekend or early next week. >>>>>>> >>>>>>> Best, >>>>>>> Kathy >>>>>>> : >>>>>>> >>>>>>> Thanks Kathy. >>>>>>> >>>>>>> >>>>>>> >>>>>>> · When you say that ³in the weeks since the original draft, I >>>>>>> think the discussion has evolved from a multipart one . . . to a binary >>>>>>> one² what are you basing that on? Can you point to any transcripts or >>>>>>> emails? I certainly don¹t remember being part of those discussions. >>>>>>> >>>>>>> · Moreover, had I been involved in those discussions, I would have >>>>>>> objected, because I think that lumping the comments together in the way >>>>>>> that you have, and ignoring the categories that our sub-team had already >>>>>>> agreed upon, does a disservice to the nuance of the comments from >>>>>>> Google, ICA, EasyDNS, and the like. For example, a UDRP panel is not a >>>>>>> court. I think that is an important distinction between Categories 2 >>>>>>> and 3. And the fact that the ICA and EasyDNS comments would allow for >>>>>>> ³some exceptions for cases of abuse² is another important distinction >>>>>>> that the broader WG ought to know about. I¹m fine if we want to include >>>>>>> some sort of introductory sentence saying that __ comments opposed the >>>>>>> basic premise of Annex E (which we do). But to then argue that those >>>>>>> comments are monolithic, or that they all oppose the premise of Annex E >>>>>>> in the same way, is not accurate. >>>>>>> >>>>>>> · I simply understood the ISPCP comment to mean that allegations >>>>>>> of infringement should not always be automatically taken as true (³not >>>>>>> indisputably wronged parties²), and that some independent adjudicator >>>>>>> (meaning, somebody other than the IP owner who is making the allegation) >>>>>>> should evaluate the merits of those claims. Annex E as currently >>>>>>> drafted provides for that. But I also don¹t think that you or I should >>>>>>> necessarily be the ones to decide this argument. Why can¹t we just say >>>>>>> that we weren¹t quite sure what to do with this one (as was true with >>>>>>> some others), and take it to the larger WG for their consideration. >>>>>>> >>>>>>> · I think you¹re missing my point on Blacknight. My point is that >>>>>>> the key word is ³require.² As I mentioned below, nothing in Annex E >>>>>>> ³requires² Blacknight to disclose (merely to give reasons if they refuse >>>>>>> to disclose). So I don¹t see anything in their comment that is >>>>>>> inconsistent with Annex E. >>>>>>> >>>>>>> · On the APC comment: I don¹t disagree with you that the comment >>>>>>> has important value for the WG. But that¹s not the same thing as saying >>>>>>> that it advocates for disclosure only following a court order. It >>>>>>> doesn¹t. >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: Kathy Kleiman [mailto:kathy@kathykleiman.com >>>>>>> <mailto:kathy@kathykleiman.com> ] >>>>>>> Sent: Wednesday, August 26, 2015 10:59 PM >>>>>>> To: Williams, Todd <Todd.Williams(a)turner.com> >>>>>>> <mailto:Todd.Williams@turner.com> ; gnso-ppsai3(a)icann.org >>>>>>> <mailto:gnso-ppsai3@icann.org> >>>>>>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview >>>>>>> >>>>>>> >>>>>>> >>>>>>> Hi Todd, >>>>>>> Tx you for the close read. In the weeks since the original draft, I >>>>>>> think the discussion has evolved from a multipart one - such as the 5 >>>>>>> categories originally created in Section III -- to a more binary one: do >>>>>>> commenters support a system such as Annex E or do they want court order >>>>>>> prior to the reveal of the data? >>>>>>> >>>>>>> With apologies, I don't understand the differentiation into Categories >>>>>>> 2, 3 and 4 in Section III. Some parties may have mentioned UDRP, and >>>>>>> others not, but that does not take away from the totality of the >>>>>>> commenters who want court orders -- or want court orders for certain >>>>>>> categories of requests such as privacy requests to p/p providers from >>>>>>> third parties, such as intellectual property requests. To divide up >>>>>>> these comments really dilutes the argument, I think, as these commenters >>>>>>> favor court order for the key issue we are evaluating. >>>>>>> >>>>>>> So I would recommend keeping Google, Endurance, Wheelhouse, ICA and Easy >>>>>>> DNS together in Category 2. >>>>>>> >>>>>>> The ISPCP Constituency Comments call for an "independent adjudicator" to >>>>>>> "determine the merits of their ("intellectual property rights holders") >>>>>>> claims. I thought that was pretty clear reference to a judge or >>>>>>> magistrate, but if you see it differently, please let me know. >>>>>>> >>>>>>> Re Blacknight, on the issue of Annex E or court order, the comments >>>>>>> appear to come down squarely for court orders. For LEA, it recommends a >>>>>>> different approach, but there is no reference to Annex E, only "a >>>>>>> request from law enforcement, Irish consumer protection agencies or a >>>>>>> court order with jurisdiction over us." The intellectual property >>>>>>> requests falls into the final category -- court order -- and as such, >>>>>>> this comment would be properly listed here. >>>>>>> >>>>>>> Re: APC, Alliance for Progressive Communications, you are right that I >>>>>>> missed a step in putting this comment forward. The question this quote >>>>>>> addresses, and it is a valuable one, is court orders and jurisdiction -- >>>>>>> from which jurisdiction are court orders are valid? Here APC provides >>>>>>> us with unique insight, very worth passing onto the WG: that release of >>>>>>> domain name data in some countries has and will continue to result in >>>>>>> arrest, prosecution, conviction, etc. of "domain owners" who are >>>>>>> "exercising activism" online. This is a very tough issue that we >>>>>>> discussed in the WG, and APC is on the ground in Africa and near the >>>>>>> Middle East to see abuses first hand. >>>>>>> >>>>>>> As the WG explores the issue of court orders, the next question is: from >>>>>>> what jurisdiction should/must p/p provider accept a court order? The APC >>>>>>> comment reminds us that what is clearly legal in one country is >>>>>>> punishable in another -- and that jurisdictional issues for court orders >>>>>>> are a key part of what we (the WG) have to keep in mind. If you would >>>>>>> like to create a introductory paragraph, or new section, for this type >>>>>>> of discussion, I would certainly welcome it! >>>>>>> >>>>>>> Best, >>>>>>> Kathy >>>>>>> : >>>>>>> >>>>>>> Thanks Kathy. One minor formatting suggestion: >>>>>>> >>>>>>> >>>>>>> >>>>>>> I think the spectrum that we outline on page 5 (Categories 1-4) is >>>>>>> useful, because not all of these comments are advocating for the same >>>>>>> thing. Yet the quotes that we¹ve added from the comments are all >>>>>>> included under Category 2, which is somewhat confusing. I would suggest >>>>>>> that we move: >>>>>>> >>>>>>> >>>>>>> >>>>>>> · The quotes from the comments from Google, Endurance >>>>>>> International Group, and Jeff Wheelhouse to the paragraph on Category 3. >>>>>>> >>>>>>> · The quotes from the comments from ICA and Easy DNS to the >>>>>>> paragraph on Category 4. >>>>>>> >>>>>>> >>>>>>> >>>>>>> Also, I saw that you added quotes from the comments from ISPCPC, >>>>>>> Blacknight, and the Association for Progressive Communications, even >>>>>>> though those weren¹t in our initial summary and don¹t specifically >>>>>>> mention Annex E. My thoughts on each: >>>>>>> >>>>>>> >>>>>>> >>>>>>> · Here¹s the full ISPCPC quote, from a section titled ³Regarding >>>>>>> LEA definitions & differentiations²: ³While we respect the desire to >>>>>>> utilize the official ICANN definition of Law Enforcement Agent (LEA), we >>>>>>> acknowledge that intellectual property rights holders and private anti >>>>>>> abuse organizations should be treated as complainants and not >>>>>>> indisputably wronged parties, and accordingly an independent adjudicator >>>>>>> should determine the merits of their claim before rights that users >>>>>>> would otherwise have are abrogated by reason of those lawyers' claims.² >>>>>>> To be honest, I¹m not really sure what to make of that (especially given >>>>>>> that it is included under a heading about LEA definitions). But I¹m not >>>>>>> sure that we can assume that it means disclosure only following a court >>>>>>> order. Why would Annex E as currently drafted not satisfy the standard >>>>>>> of ³an independent adjudicator should determine the merits of their >>>>>>> claim²? >>>>>>> >>>>>>> · I also don¹t understand why we would think that the Blacknight >>>>>>> quote is incompatible with Annex E. All it says is that ³any policy >>>>>>> that would require us to divulge our client¹s information in the absence >>>>>>> of either a request from law enforcement, Irish consumer protection >>>>>>> agencies or a court order with jurisdiction over us is incompatible with >>>>>>> Irish law.² But Annex E as currently drafted doesn¹t require Blacknight >>>>>>> to divulge its client¹s information. Rather, it gives Blacknight the >>>>>>> discretion to make that decision; all it requires is that Blacknight >>>>>>> provide the complainant with its reasoning if it chooses to refuse. >>>>>>> >>>>>>> · I don¹t understand why we¹d include a quote from the APC comment >>>>>>> in this section, given that it does not mention Annex E, and that it >>>>>>> expressly endorsed the NCSG comment (see: >>>>>>> http://forum.icann.org/lists/comments-ppsai-initial-05may15/pdfwOfjgYV0i >>>>>>> 9.pdf >>>>>>> <http://forum.icann.org/lists/comments-ppsai-initial-05may15/pdfwOfjgYV0 >>>>>>> i9.pdf> ), which we analyze in the previous section that supports the >>>>>>> premise of Annex E. >>>>>>> >>>>>>> >>>>>>> >>>>>>> From:gnso-ppsai3-bounces@icann.org >>>>>>> <mailto:gnso-ppsai3-bounces@icann.org> >>>>>>> [mailto:gnso-ppsai3-bounces@icann.org >>>>>>> <mailto:gnso-ppsai3-bounces@icann.org> ] On Behalf Of Kathy Kleiman >>>>>>> Sent: Wednesday, August 26, 2015 5:17 PM >>>>>>> To: gnso-ppsai3(a)icann.org <mailto:gnso-ppsai3@icann.org> >>>>>>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview >>>>>>> >>>>>>> >>>>>>> >>>>>>> Hi All, >>>>>>> Tx to Darcy for the Overview work. I've taken her draft and added to it >>>>>>> my work on Section III as promised on the last call. I added more quotes >>>>>>> from commenters seeking court orders and the use of existing legal due >>>>>>> process mechanisms prior to disclosure of proxied data. There was a wide >>>>>>> array of comments on this issue, including from ISPs, individuals, >>>>>>> organizations, and companies. >>>>>>> >>>>>>> I used Darcy's version as the base. Both her edits (Overview) and my >>>>>>> edits (Section III) are shown in "track changes." >>>>>>> >>>>>>> Best, >>>>>>> Kathy >>>>>>> >>>>>>> : >>>>>>> >>>>>>> Hi, all! >>>>>>> >>>>>>> In follow up to our call earlier this week, attached is an updated >>>>>>> Sub-team 3 analysis draft with the overview added at the beginning. I >>>>>>> redlined my changes so you can clearly see what I¹ve done. I hope you >>>>>>> find that I present a clear and accurate overview. >>>>>>> >>>>>>> >>>>>>> >>>>>>> I also made some minor revisions to Section V (³Comments that did not >>>>>>> fit neatly into any of the above categories²) that I realized after >>>>>>> submitting my original draft of that section made a bit more sense. >>>>>>> Again, I¹ve redlined the changes so you can easily see what changed. >>>>>>> >>>>>>> >>>>>>> >>>>>>> Please let me know if there are any questions. >>>>>>> >>>>>>> >>>>>>> >>>>>>> Thanks, >>>>>>> >>>>>>> Darcy >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> _______________________________________________ >>>>>>> Gnso-ppsai3 mailing list >>>>>>> Gnso-ppsai3(a)icann.org <mailto:Gnso-ppsai3@icann.org> >>>>>>> https://mm.icann.org/mailman/listinfo/gnso-ppsai3 >>>>>>> <https://mm.icann.org/mailman/listinfo/gnso-ppsai3> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> <Revised Illustrative Disclosure Framework for Intellectual Property >>>>>>> Righ...[2][1].docx>_______________________________________________ >>>>>>> Gnso-ppsai3 mailing list >>>>>>> Gnso-ppsai3(a)icann.org <mailto:Gnso-ppsai3@icann.org> >>>>>>> https://mm.icann.org/mailman/listinfo/gnso-ppsai3 >>>>>>> <https://mm.icann.org/mailman/listinfo/gnso-ppsai3> >>>>>>> >>>>>> _______________________________________________ >>>>>> Gnso-ppsai3 mailing list >>>>>> Gnso-ppsai3(a)icann.org >>>>>> https://mm.icann.org/mailman/listinfo/gnso-ppsai3 >>>>> >

6 48

Sub Team call? (Re: Follow up from WG call yesterday)
by Mary Wong Sept. 22, 2015

Sept. 22, 2015

Hello again everyone, Following a discussion with the WG co-chairs yesterday, we would like to suggest that the Sub Team consider doing a call this week to review the notes from the last WG call (see below), with the goal of presenting recommendations and/or alternative proposals to the full WG for discussion next week (i.e. Tuesday 29 September). If you are able to do a call this week, would either Wednesday (at or after 1400 UTC) or Friday (at or after 1900 UTC) work for you? 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: Mary Wong <mary.wong(a)icann.org> Date: Wednesday, September 16, 2015 at 16:27 Cc: "gnso-ppsai3(a)icann.org" <gnso-ppsai3(a)icann.org> Subject: Follow up from WG call yesterday > Hello everybody, > > Here are the notes I captured from the WG discussion yesterday; we should have > the full transcript and MP3 recording uploaded by tomorrow at the latest but I > thought these notes might be helpful, at least as an initial framework for the > next Sub Team discussion: > > Section I.B.(iii): > - Need to discuss retaining it in some form; costs are real for providers > > Section II: > - Should there be provision for indemnification to provider against misuse of > data? (NOTE: unlikely to gain support, so possibly no need to add) > - A(6)(b)(ii): can a requester under the new wording keep/use the data to > assocate with other information about the registrant e.g. for future or other > requests? Does reverse apply to registrar/provider ie do they keep data that's > sent to them? > > Section III: > - III.B: Secure communications may not be as easily or readily done as might > be desired (so revision is well-intended but maybe not entirely practical) > - 5 calendar days rather than 3 is more reasonable from providers' perspective > - saying "encouraged" but not mandating action would nullify need for this > section B (NOTE: many people on the call agree with this, one objected) > - III.C.: use some other word than ³surrender², and one that makes clear this > does not mean a transfer; in any event, clarify that it's a deletion at the > option of a customer (NOTE: there was some discussion over whether providers > must be required to offer this option; reminder that previous WG discussions > had led to agreement to NOT make it mandatory due to varying provider > practices) > - III.C.(v) & (vi): do they overlap? Should they be merged? > > Annex I: > - Keep both options to clarify they are two possible ways of dealing with the > issues? > > Would you like to do a Sub Team call to walk through these suggestions, or > should we continue to discuss first by email? I will check with the WG > co-chairs when they would like a revised, more finalized, set of > recommendations to be presented to the WG (if possible). > > 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: "Williams, Todd" <Todd.Williams(a)turner.com> > Date: Tuesday, September 15, 2015 at 21:19 > To: Holly Raiche <h.raiche(a)internode.on.net>, Mary Wong <mary.wong(a)icann.org> > Cc: "gnso-ppsai3(a)icann.org" <gnso-ppsai3(a)icann.org> > Subject: RE: [Gnso-ppsai3] Additional Comments for Sub Team Consideration > >> Thanks Holly. As I mentioned when I circulated the draft (see attached >> email): >> >> ³for Sara, Kathy, and the others on our sub-team who have argued that >> ³verifiable evidence² means something higher let us know how you would >> further edit Sections II(A), (B), and (C) to meet whatever ³higher² standard >> you have in mind.² >> >> >> From: gnso-ppsai3-bounces(a)icann.org [mailto:gnso-ppsai3-bounces@icann.org] On >> Behalf Of Holly Raiche >> Sent: Tuesday, September 15, 2015 8:43 AM >> To: Mary Wong <mary.wong(a)icann.org> >> Cc: gnso-ppsai3(a)icann.org >> Subject: Re: [Gnso-ppsai3] Additional Comments for Sub Team Consideration >> >> Yes, it does help - particularly since I recognise my words in the extract. >> What it suggests, however, is acceptance that the elements a requested gives >> to a provider amounts to the standard of evidence that is verifiable¹ - as >> described below. My question to the group, therefore, is whether the >> addition of those words has been agreed upon by the group. If not, the words >> should not be there; their mere presence suggests agreement, and puts the >> onus on those of us who don¹t agree to argue for the removal of words that >> were not agreed to. >> >> >> >> Sorry to be pedantic, folks, but the presence of those words suggests a level >> of agreement that I am not aware of. >> >> >> >> Holly >> >> On 15 Sep 2015, at 10:27 pm, Mary Wong <mary.wong(a)icann.org> wrote: >> >> >>> Hi Holly and everyone, >>> >>> >>> >>> As Todd noted in his report to the full WG last week on behalf of the Sub >>> Team, the document doesn¹t represent the finished consensus product of the >>> Sub Team but rather is being presented as a tool for further WG discussion. >>> The document includes certain revisions that were added to more fully >>> reflect the comments that were received, and as such could be one form of a >>> revised Annex E however, as Todd mentioned, it isn¹t the agreed result of >>> the Sub Team¹s substantive analysis. >>> >>> >>> >>> Similarly, in the summary document that was also sent out in tandem, here is >>> how the Sub Team¹s discussion on the question of ³verifiable evidence² was >>> presented: >>> >>> >>> >>> "Further, the Save Domain Privacy petition, which had 10,042 signatories and >>> also included [x] number of additional statements, argued that ³privacy >>> providers should not be forced to reveal my private information without >>> verifiable evidence of wrongdoing.² We as a sub-team could not agree on how >>> to interpret ³verifiable evidence,² and will leave that discussion to the >>> larger WG. Some on the sub-team viewed these comments as supporting Annex E >>> because the requirements in Annex E as currently formulated can be >>> interpreted as constituting verifiable evidence, while others on the >>> sub-team interpret verifiable evidence¹ as requiring a court order and >>> therefore not in support of Annex E. However, some also noted that the word >>> ³verifiable² does not imply that the evidence has been tested through a >>> legal process; rather, it simply points toward requiring that evidence >>> provided must be credible/provable enough so that, in a legal proceeding, it >>> would withstand legal scrutiny, but does not necessarily imply that there >>> must have been a court process in all cases." >>> >>> >>> >>> Does this help? >>> >>> >>> >>> 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: Holly Raiche <h.raiche(a)internode.on.net> >>> Date: Tuesday, September 15, 2015 at 20:18 >>> To: Mary Wong <mary.wong(a)icann.org>, "gnso-ppsai3(a)icann.org" >>> <gnso-ppsai3(a)icann.org> >>> Cc: "Williams, Todd" <Todd.Williams(a)turner.com>, Sara Bockey >>> <sbockey(a)godaddy.com> >>> Subject: Re: [Gnso-ppsai3] Additional Comments for Sub Team Consideration >>> >>> >>>> >>>> Folks >>>> >>>> >>>> >>>> I apologise for not participating over the past week - I¹ve been away. >>>> >>>> >>>> >>>> My question is, next to the headings on request for templates, the words >>>> after requester provides to the service provider, the words verifiable >>>> evidence of wrong doing, including¹. >>>> >>>> >>>> >>>> What that implies is that the following text lists what would constitute >>>> verifiable evidence¹ and indeed, the word including¹ suggests that other >>>> elements can also constitute verifiable evidence¹. Has the group agreed >>>> on this? >>>> >>>> >>>> >>>> My impression was that we had not yet agreed what the term meant, but that >>>> it must be evidence of a very high standard - impliedly something that >>>> could be used in court processes. I am not convinced that the elements >>>> listed under Heading II meet that test. >>>> >>>> >>>> >>>> So Mary, others, was this agreed? >>>> >>>> >>>> >>>> Thanks >>>> >>>> >>>> >>>> Holly >>>> >>>> On 15 Sep 2015, at 7:11 am, Sara Bockey <sbockey(a)godaddy.com> wrote: >>>> >>>> >>>>> Thanks, Todd. >>>>> >>>>> >>>>> >>>>> From: "Williams, Todd" >>>>> Date: Monday, September 14, 2015 at 1:18 PM >>>>> To: Sara Bockey, Mary Wong, "gnso-ppsai3(a)icann.org >>>>> <mailto:gnso-ppsai3@icann.org> " >>>>> Subject: RE: [Gnso-ppsai3] Additional Comments for Sub Team Consideration >>>>> >>>>> >>>>> >>>>> Thanks Sara. I¹m still confused. In order: >>>>> >>>>> >>>>> >>>>> · I still don¹t see any mention in the CDT comment re: removal of >>>>> alleged infringing materials in lieu of disclosure. I do see support for >>>>> the additional language that the attached draft adds to III(C)(vii) about >>>>> ³specific information, facts and/or circumstances showing that disclosure >>>>> to the Requester will endanger the safety of the Customer² (in fact, that >>>>> language was added specifically to capture the point of the paragraph from >>>>> the CDT comment that you¹ve quoted below). But that is completely >>>>> different from what you¹ve added, for which I cannot find any support in >>>>> any of the public comments. I also don¹t understand your claim that >>>>> ³rights and actions available to the registrant are sorely lacking in >>>>> Annex E² given that Annex E explicitly contemplates notice to the >>>>> registrant and contemplates input from the registrant in Sections III(A), >>>>> III(C)(ii), III(C)(iii), III(C)(iv), III(C)(vi), and III(C)(vii). >>>>> >>>>> · The portion of the NCSG comment that you¹ve cited addressed the >>>>> appeals mechanism of Section III(F), not the reconsideration mechanism of >>>>> III(E). In fact, the attached draft removes the appeal mechanism of >>>>> III(F) precisely because of the language that you quoted below from the >>>>> NCSG comment (among others). But that language has nothing to do with >>>>> III(E). >>>>> >>>>> · I don¹t understand what the comments from Key Systems, Ralf >>>>> Haring, or Adam Creighton have to do with III(E) which again, is only >>>>> talking about a request for reconsideration. Moreover, the Key Systems >>>>> comment is simply inaccurate: the Disclosure Framework never ³assume[d] >>>>> disclosure if certain process steps are followed regardless of the merits >>>>> of the complaint² a point that the attached revised draft now makes >>>>> explicit in the preamble (³by not requiring that disclosure automatically >>>>> follow any given request²). >>>>> >>>>> >>>>> >>>>> Just to reiterate: I¹ve always viewed our job in the two documents that >>>>> our sub-team has drafted as being to accurately report to the larger WG >>>>> what the comments that we¹ve reviewed say. Which means two things: 1) we >>>>> have to be true to the comments, and not reinterpret them to say something >>>>> they don¹t; and 2) we have to reserve our advocacy for or against certain >>>>> points from those comments for the larger WG discussion. That¹s what I >>>>> tried to do in the attached. So if you want to argue against Annex E, >>>>> that¹s fine do so on the call tomorrow. In fact, I¹m planning to argue >>>>> against several of the proposed changes that are included in the attached. >>>>> But I still included those proposed changes in the attached draft, and >>>>> accurately noted which comments they were based on because to do >>>>> otherwise would be misleading to the larger WG. >>>>> >>>>> >>>>> >>>>> From: Sara Bockey [mailto:sbockey@godaddy.com <mailto:sbockey@godaddy.com> >>>>> ] >>>>> Sent: Monday, September 14, 2015 3:50 PM >>>>> To: Williams, Todd <Todd.Williams(a)turner.com >>>>> <mailto:Todd.Williams@turner.com> >; Mary Wong <mary.wong(a)icann.org >>>>> <mailto:mary.wong@icann.org> >; gnso-ppsai3(a)icann.org >>>>> <mailto:gnso-ppsai3@icann.org> >>>>> Cc: Sara Bockey <sbockey(a)godaddy.com <mailto:sbockey@godaddy.com> > >>>>> Subject: Re: [Gnso-ppsai3] Additional Comments for Sub Team Consideration >>>>> >>>>> >>>>> >>>>> Todd, >>>>> >>>>> >>>>> >>>>> Please see my comments inline below. >>>>> >>>>> >>>>> >>>>> Disclaimer: I do not support Annex E. >>>>> >>>>> >>>>> >>>>> Sara >>>>> >>>>> >>>>> >>>>> From: "Williams, Todd" >>>>> Date: Monday, September 14, 2015 at 11:57 AM >>>>> To: Sara Bockey, Mary Wong, "gnso-ppsai3(a)icann.org >>>>> <mailto:gnso-ppsai3@icann.org> " >>>>> Subject: RE: [Gnso-ppsai3] Additional Comments for Sub Team Consideration >>>>> >>>>> >>>>> >>>>> Sara: >>>>> >>>>> >>>>> >>>>> Two quick questions on this as I was getting ready for our call tomorrow: >>>>> >>>>> >>>>> >>>>> 1) Your addition of a new III(C)(v) stating ³the Customer has removed >>>>> the infringing trademark and/or copyright material in lieu of disclosure² >>>>> what public comment that we reviewed was that change based on? >>>>> >>>>> >>>>>> >>>>>> Based on CDT¹s comment re registrant¹s ability to respond to allegations >>>>>> removal of alleged infringing materials in lieu of disclosure would >>>>>> fall into this category. Rights and actions available to the registrant >>>>>> are sorely lacking in Annex E. >>>>> >>>>> >>>>>> Mere allegation of infringement or illegality is insufficient cause for a >>>>>> provider to disclose a customer¹s data to a third party; it is frequently >>>>>> trivially easy for a party abusing the system to allege frivolous or >>>>>> nonexistent civil claims to justify a demand for personal information. >>>>>> Registrants should have the ability and opportunity to respond to the >>>>>> allegations and to the dangers to which they, their families, and their >>>>>> organizations might be subjected, and to obtain counsel on these matters. >>>>>> Revealing a customer¹s registration data should only occur when there has >>>>>> been a substantial >>>>>> showing of likelihood of abuse and only after due process. >>>>> >>>>> >>>>> >>>>> >>>>>> >>>>>> 2)Can you show me where in the NCSG comment (here: >>>>>> >>>>>> http://forum.icann.org/lists/comments-ppsai-initial-05may15/pdfBoyWzlMS3q >>>>>> .pdf >>>>>> <http://forum.icann.org/lists/comments-ppsai-initial-05may15/pdfBoyWzlMS3 >>>>>> q.pdf> >>>>>> >>>>>> ) the NCSG argued for the addition of the clause ³in instances where >>>>>> Requester has discovered and submitted additional evidence or information >>>>>> which warrants consideration² to III(E)? You noted that this change was >>>>>> based on the NCSG comment, but I can¹t find anything in that comment that >>>>>> mentions III(E) though admittedly I could have missed it. >>>>> >>>>> >>>>> >>>>> >>>>>> Based on NCSG comment re unlimited appeals . >>>>>> >>>>>> Under no circumstances should Intellectual Property Interests, Law >>>>>> Enforcement or any other Requestors have unlimited appeals to third party >>>>>> dispute resolution providers. It will be far more than an implementation >>>>>> detail to define this appellate procedure but a whole new arbitration >>>>>> forum of its own will need to be created and a UDRP process undiscussed >>>>>> and unplanned by this Working Group. All deliberation about appeal >>>>>> mechanisms should be set aside at this time. Any Intellectual Property >>>>>> owner or group that feels a Provider is routinely denying appropriate >>>>>> requests will have full access to the growing and increasingly responsive >>>>>> ICANN Compliance Team which will be accessible to Complainers through >>>>>> the accreditation process now being created. >>>>>> >>>>>> Key Systems¹ comment would also support this addition: >>>>>> >>>>>> We do not support the proposed Disclosure Framework as it assumes >>>>>> disclosure if certain process steps are followed regardless of the merits >>>>>> of the complaint. >>>>>> >>>>>> As well as Ralf Haring¹s comment: >>>>>> >>>>>> [Disagree with proposal that] Providers can be forced to give your >>>>>> private contact details to anyone complaining that your site violates >>>>>> their copyright or trademark. >>>>>> >>>>>> And Adam Creighton¹s comment: >>>>>> >>>>>> I think the language is too loose, and opens individuals up to frivolous >>>>>> litigation from IP rights owners and third-party agencies whose >>>>>> contracted relationship is to expand IP brand presence. >>>>> >>>>> >>>>> Thanks. >>>>> >>>>> >>>>> Todd. >>>>> >>>>> >>>>> >>>>> From: Sara Bockey [mailto:sbockey@godaddy.com <mailto:sbockey@godaddy.com> >>>>> ] >>>>> Sent: Friday, September 04, 2015 4:40 PM >>>>> To: Williams, Todd <Todd.Williams(a)turner.com >>>>> <mailto:Todd.Williams@turner.com> >; Mary Wong <mary.wong(a)icann.org >>>>> <mailto:mary.wong@icann.org> >; gnso-ppsai3(a)icann.org >>>>> <mailto:gnso-ppsai3@icann.org> >>>>> Cc: Sara Bockey <sbockey(a)godaddy.com <mailto:sbockey@godaddy.com> > >>>>> Subject: Re: [Gnso-ppsai3] Additional Comments for Sub Team Consideration >>>>> >>>>> >>>>> >>>>> Hi all, >>>>> >>>>> >>>>> >>>>> As promised, attached is a redline of my input to the proposed changes >>>>> Todd drafted. Todd was pretty thorough and had included several revisions >>>>> I had in mind based on the comments so my edits are limited to a few >>>>> comments and additions. >>>>> >>>>> >>>>> >>>>> Best regards, >>>>> >>>>> >>>>> >>>>> Sara >>>>> >>>>> >>>>> >>>>> >>>>> >>>>> From: <gnso-ppsai3-bounces(a)icann.org >>>>> <mailto:gnso-ppsai3-bounces@icann.org> > on behalf of "Williams, Todd" >>>>> Date: Wednesday, September 2, 2015 at 2:58 PM >>>>> To: Mary Wong, "gnso-ppsai3(a)icann.org <mailto:gnso-ppsai3@icann.org> " >>>>> Subject: Re: [Gnso-ppsai3] Additional Comments for Sub Team Consideration >>>>> >>>>> >>>>> >>>>> All: >>>>> >>>>> >>>>> >>>>> As promised on our call, attached is a redline of the Draft Disclosure >>>>> Framework, with annotations noting the source of each proposed change. >>>>> Several notes as you review: >>>>> >>>>> >>>>> >>>>> · I know that we¹ve debated whether ³verifiable evidence² means more >>>>> than what is currently in Sections II(A), (B), and (C). You¹ll see that >>>>> I¹ve added the exact wording from the savedomainprivacy.org >>>>> <http://savedomainprivacy.org/> petition ³verifiable evidence of >>>>> wrongdoing² to those sections. I think that is a good fit, as of right >>>>> now. But for Sara, Kathy, and the others on our sub-team who have argued >>>>> that ³verifiable evidence² means something higher let us know how you >>>>> would further edit Sections II(A), (B), and (C) to meet whatever ³higher² >>>>> standard you have in mind. >>>>> >>>>> · You¹ll note that I briefly added a reference to the comment from >>>>> Com Laude (which I think we had omitted from our summary). And that I did >>>>> not reference the comment from Aaron Myers (which we¹ve referenced in our >>>>> summary, but which doesn¹t really offer any edits to the Disclosure >>>>> Framework). Otherwise I think I¹ve covered everything that we reviewed in >>>>> terms of edits to the Disclosure Framework though let me know if anybody >>>>> sees anything I¹ve missed. >>>>> >>>>> · Just to be clear for the record: the attached is a revised >>>>> Disclosure Framework that illustrates and attempts to account for all of >>>>> the proposed edits that we received from the public comments, for the >>>>> larger Working Group¹s reference. But it is not how I would have edited >>>>> the Disclosure Framework. In fact, I¹ll reserve the right to argue >>>>> against some of these proposed edits, once we get into the larger WG >>>>> discussion. Just wanted to make that clear so that nobody thinks these >>>>> edits are mine (since I¹m the one who drafted the document). >>>>> >>>>> >>>>> >>>>> Thanks. >>>>> >>>>> >>>>> >>>>> Todd. >>>>> >>>>> >>>>> >>>>> From:gnso-ppsai3-bounces@icann.org <mailto:gnso-ppsai3-bounces@icann.org> >>>>> [mailto:gnso-ppsai3-bounces@icann.org >>>>> <mailto:gnso-ppsai3-bounces@icann.org> ] On Behalf Of Mary Wong >>>>> Sent: Wednesday, September 02, 2015 6:59 AM >>>>> To: gnso-ppsai3(a)icann.org <mailto:gnso-ppsai3@icann.org> >>>>> Subject: [Gnso-ppsai3] Additional Comments for Sub Team Consideration >>>>> >>>>> >>>>> >>>>> Hello again everyone, >>>>> >>>>> >>>>> >>>>> As you look through the proposed revised summary document (below), you may >>>>> also wish to consider whether some of the additional comments that were >>>>> included in Part 4 of the overall WG Public Comment Review Tool might be >>>>> useful such that additional notes or recommendations can be made, or >>>>> existing language amended. For your convenience I¹ve extracted ten such >>>>> comments which, while not sent in as specific responses to the Preliminary >>>>> Recommendations and Annex E that this Sub Team is analysing, nonetheless >>>>> seem relevant generally. >>>>> >>>>> >>>>> >>>>> I attach these ten comments in tabular form to this email, and welcome the >>>>> Sub Team¹s discussion and comments on whether any of them ought to be >>>>> considered as well as your thoughts on the summary document. >>>>> >>>>> >>>>> >>>>> As the Sub Team is due to report back to the full WG next Tuesday, please >>>>> let me know also if you think a call before then amongst the Sub Team >>>>> members might be needed. >>>>> >>>>> >>>>> >>>>> 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 <mailto:mary.wong@icann.org> >>>>> >>>>> >>>>> >>>>> >>>>> >>>>> From: Mary Wong <mary.wong(a)icann.org <mailto:mary.wong@icann.org> > >>>>> Date: Monday, August 31, 2015 at 15:46 >>>>> To: "gnso-ppsai3(a)icann.org <mailto:gnso-ppsai3@icann.org> " >>>>> <gnso-ppsai3(a)icann.org <mailto:gnso-ppsai3@icann.org> > >>>>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview >>>>> >>>>> >>>>>> >>>>>> Hello everyone, in an attempt to facilitate further dialogue and, >>>>>> hopefully, consensus on a way forward on this issue, I¹ve taken the >>>>>> liberty of amending Kathy¹s document to take into account Holly¹s >>>>>> comments as well as to attempt to place certain comments (e.g. the ICA¹s, >>>>>> EasyDNS¹) more specifically within a particular category. I attach both a >>>>>> redlined and clean copy of this latest updated version (with the clean >>>>>> copy including yellow highlighted portions where the most significant >>>>>> language changes are suggested). I have not yet broken the comments down >>>>>> further into the registrant/provider distinction that Todd noted, but can >>>>>> of course do so if this is viewed as useful. >>>>>> >>>>>> >>>>>> >>>>>> Please note that this is not a staff position that is being suggested, >>>>>> but merely an attempt to document where the Sub Team¹s discussion seems >>>>>> to be at the moment. I hope this is helpful. >>>>>> >>>>>> >>>>>> >>>>>> 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 <mailto:mary.wong@icann.org> >>>>>> >>>>>> >>>>>> >>>>>> >>>>>> >>>>>> From: <gnso-ppsai3-bounces(a)icann.org >>>>>> <mailto:gnso-ppsai3-bounces@icann.org> > on behalf of "Williams, Todd" >>>>>> <Todd.Williams(a)turner.com <mailto:Todd.Williams@turner.com> > >>>>>> Date: Friday, August 28, 2015 at 22:40 >>>>>> To: Kathy Kleiman <kathy(a)kathykleiman.com <mailto:kathy@kathykleiman.com> >>>>>> >, "gnso-ppsai3(a)icann.org <mailto:gnso-ppsai3@icann.org> " >>>>>> <gnso-ppsai3(a)icann.org <mailto:gnso-ppsai3@icann.org> > >>>>>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview >>>>>> >>>>>> >>>>>>> >>>>>>> Thanks Kathy. I both agree and disagree with what you¹ve said below. >>>>>>> >>>>>>> >>>>>>> >>>>>>> I strongly agree that ³the key is the quotes that have come out of the >>>>>>> comments.² I¹ve said repeatedly that our job as a sub-team is not to >>>>>>> advocate, but to simply present the comments to the WG in as accurate >>>>>>> and objective a way as possible. To the extent that we then want to >>>>>>> advocate for our own positions as part of the larger WG, we can do so. >>>>>>> Moreover, part of the reason why I feel so strongly that ³the key is the >>>>>>> quotes² is that I think we have to take the comments at face value, and >>>>>>> then debate as WG whether we can reach consensus on what they actually >>>>>>> say not on what we want them to say. That¹s why I felt so strongly >>>>>>> that ³verifiable evidence² should not be reinterpreted to mean a court >>>>>>> order. It is also what animated my email exchange with Stephanie in the >>>>>>> larger WG (attached). >>>>>>> >>>>>>> >>>>>>> >>>>>>> And if we are in fact faithful to what the comments actually say, then >>>>>>> it is a mistake to lump all of the ³court order² comments into one >>>>>>> monolithic group. I¹ve given some examples of substantive differences >>>>>>> below. But let me give another one: if we look at what they actually >>>>>>> say, the ³court order² comments are very much divided based on whether >>>>>>> the comment came from an individual registrant or from a >>>>>>> registrar/provider. Which of course makes sense: a registrant will tend >>>>>>> to look at these issues very differently than a provider. Specifically, >>>>>>> as you correctly note in our draft, the vast majority of comments >>>>>>> (11,000+) from individuals/registrants said that ³Everyone deserves the >>>>>>> right to privacy² and that ³No one¹s personal information should be >>>>>>> revealed without a court order, regardless of whether the request comes >>>>>>> from a private individual or law enforcement agency.² And of course, we >>>>>>> can understand why registrants would argue that their right to privacy >>>>>>> is inviolate, and that it should never be abrogated unless a court >>>>>>> blesses it. >>>>>>> >>>>>>> >>>>>>> >>>>>>> But note that the registrar/provider comments in the ³court order² group >>>>>>> do NOT say the same thing. Rather, they are focused on retaining their >>>>>>> discretion as to when to disclose or publish, and do not want an >>>>>>> accreditation standard that requires them to do so absent a court order. >>>>>>> Hence my point about the word ³require² in the Blacknight comment. See >>>>>>> also the Key Systems comment: ³Disclosure or publication should never be >>>>>>> the automatic result of a process, but rather remain an option of the >>>>>>> provider.² And others. So one key distinction b/w the >>>>>>> registrant/individual comments and the registrar/provider comments is >>>>>>> that the registrant comments do not want disclosure or publication EVER >>>>>>> unless following a court order, while the provider comments want a court >>>>>>> order first if SOMEBODY ELSE wants them to disclose or publish, but not >>>>>>> if THEY want to disclose or publish. And we can understand why, given >>>>>>> how many provider Terms of Service include language that gives them >>>>>>> discretion to basically turn off a P/P Service whenever they want (for >>>>>>> example, if the registrant stops paying them), without any kind of >>>>>>> process beforehand (due process or otherwise). See below (among many >>>>>>> others): >>>>>>> >>>>>>> >>>>>>> >>>>>>> · Blacknight: https://www.blacknight.com/acceptable-usage.html >>>>>>> <https://www.blacknight.com/acceptable-usage.html> . >>>>>>> >>>>>>> · Whoisprivacy.com <http://whoisprivacy.com/> , Ltd.: >>>>>>> http://www.whoisprivacyservices.com.au/terms.htm >>>>>>> <http://www.whoisprivacyservices.com.au/terms.htm> . >>>>>>> >>>>>>> · EuroDNS S.A.: >>>>>>> https://www.eurodns.com/terms-and-conditions/whois-privacy >>>>>>> <https://www.eurodns.com/terms-and-conditions/whois-privacy> . >>>>>>> >>>>>>> · 1&1 Internet, Inc.: http://www.1and1.com/TcPdr?__lf=Static >>>>>>> <http://www.1and1.com/TcPdr?__lf=Static> . >>>>>>> >>>>>>> · Domain.com <http://domain.com/> , LLC: >>>>>>> http://www.domain.com/legal/legal_domain.bml#domain-privacy-service >>>>>>> <http://www.domain.com/legal/legal_domain.bml#domain-privacy-service> . >>>>>>> >>>>>>> · DomainIt, Inc.: https://www.domainit.com/terms.html >>>>>>> <https://www.domainit.com/terms.html> . >>>>>>> >>>>>>> · Moniker Privacy Services, LLC: >>>>>>> http://www.moniker.com/legal/registration-agreement >>>>>>> <http://www.moniker.com/legal/registration-agreement> . >>>>>>> >>>>>>> >>>>>>> >>>>>>> So we can understand why providers would not want an accreditation >>>>>>> regime that requires them to get a court order before they turn off a >>>>>>> registrant¹s privacy service (and to rewrite their Terms of Service >>>>>>> accordingly). In fact, Volker has already admitted both on the email >>>>>>> list (see attached) and on our weekly calls (see transcript of 8-11-15 >>>>>>> call) that such an accreditation requirement would have such a ³severe >>>>>>> impact² on the economic realities of providers (in other words, would >>>>>>> cost them so much money), that they could never agree to such a >>>>>>> requirement. But of course, if I¹m an individual registrant concerned >>>>>>> about my privacy and due process, then I could care less about the >>>>>>> ³economic realities² of providers. >>>>>>> >>>>>>> >>>>>>> >>>>>>> My point is only that we can¹t gloss over that important distinction >>>>>>> (and others) by lumping all of the ³court order² comments together as if >>>>>>> they were coming from the same place and advocating for the same thing. >>>>>>> They¹re not. >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: Kathy Kleiman [mailto:kathy@kathykleiman.com >>>>>>> <mailto:kathy@kathykleiman.com> ] >>>>>>> Sent: Friday, August 28, 2015 8:44 AM >>>>>>> To: Williams, Todd <Todd.Williams(a)turner.com >>>>>>> <mailto:Todd.Williams@turner.com> >; gnso-ppsai3(a)icann.org >>>>>>> <mailto:gnso-ppsai3@icann.org> >>>>>>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview >>>>>>> >>>>>>> >>>>>>> >>>>>>> Hi Todd, >>>>>>> The entire WG is now looking to our comments to show what supports Annex >>>>>>> E (deemed generally to be a lower standard than court order) and Court >>>>>>> Order (deemed to be a much higher standard than Annex E). What we are >>>>>>> talking about is the floor, not the ceiling, right, for accreditation? >>>>>>> Namely, what is the minimum requirement for disclosure of proxied data? >>>>>>> I see it as really quite binary - up or down (Annex E or court order for >>>>>>> private requests to p/p providers) - but I can understand if the subteam >>>>>>> thinks differently. >>>>>>> >>>>>>> What I think is key is the quotes that have come out of the comments. >>>>>>> Provided we keep the quotes, I'm good.I can rework, but not until end of >>>>>>> weekend or early next week. >>>>>>> >>>>>>> Best, >>>>>>> Kathy >>>>>>> : >>>>>>> >>>>>>> Thanks Kathy. >>>>>>> >>>>>>> >>>>>>> >>>>>>> · When you say that ³in the weeks since the original draft, I >>>>>>> think the discussion has evolved from a multipart one . . . to a binary >>>>>>> one² what are you basing that on? Can you point to any transcripts or >>>>>>> emails? I certainly don¹t remember being part of those discussions. >>>>>>> >>>>>>> · Moreover, had I been involved in those discussions, I would have >>>>>>> objected, because I think that lumping the comments together in the way >>>>>>> that you have, and ignoring the categories that our sub-team had already >>>>>>> agreed upon, does a disservice to the nuance of the comments from >>>>>>> Google, ICA, EasyDNS, and the like. For example, a UDRP panel is not a >>>>>>> court. I think that is an important distinction between Categories 2 >>>>>>> and 3. And the fact that the ICA and EasyDNS comments would allow for >>>>>>> ³some exceptions for cases of abuse² is another important distinction >>>>>>> that the broader WG ought to know about. I¹m fine if we want to include >>>>>>> some sort of introductory sentence saying that __ comments opposed the >>>>>>> basic premise of Annex E (which we do). But to then argue that those >>>>>>> comments are monolithic, or that they all oppose the premise of Annex E >>>>>>> in the same way, is not accurate. >>>>>>> >>>>>>> · I simply understood the ISPCP comment to mean that allegations >>>>>>> of infringement should not always be automatically taken as true (³not >>>>>>> indisputably wronged parties²), and that some independent adjudicator >>>>>>> (meaning, somebody other than the IP owner who is making the allegation) >>>>>>> should evaluate the merits of those claims. Annex E as currently >>>>>>> drafted provides for that. But I also don¹t think that you or I should >>>>>>> necessarily be the ones to decide this argument. Why can¹t we just say >>>>>>> that we weren¹t quite sure what to do with this one (as was true with >>>>>>> some others), and take it to the larger WG for their consideration. >>>>>>> >>>>>>> · I think you¹re missing my point on Blacknight. My point is that >>>>>>> the key word is ³require.² As I mentioned below, nothing in Annex E >>>>>>> ³requires² Blacknight to disclose (merely to give reasons if they refuse >>>>>>> to disclose). So I don¹t see anything in their comment that is >>>>>>> inconsistent with Annex E. >>>>>>> >>>>>>> · On the APC comment: I don¹t disagree with you that the comment >>>>>>> has important value for the WG. But that¹s not the same thing as saying >>>>>>> that it advocates for disclosure only following a court order. It >>>>>>> doesn¹t. >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: Kathy Kleiman [mailto:kathy@kathykleiman.com >>>>>>> <mailto:kathy@kathykleiman.com> ] >>>>>>> Sent: Wednesday, August 26, 2015 10:59 PM >>>>>>> To: Williams, Todd <Todd.Williams(a)turner.com> >>>>>>> <mailto:Todd.Williams@turner.com> ; gnso-ppsai3(a)icann.org >>>>>>> <mailto:gnso-ppsai3@icann.org> >>>>>>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview >>>>>>> >>>>>>> >>>>>>> >>>>>>> Hi Todd, >>>>>>> Tx you for the close read. In the weeks since the original draft, I >>>>>>> think the discussion has evolved from a multipart one - such as the 5 >>>>>>> categories originally created in Section III -- to a more binary one: do >>>>>>> commenters support a system such as Annex E or do they want court order >>>>>>> prior to the reveal of the data? >>>>>>> >>>>>>> With apologies, I don't understand the differentiation into Categories >>>>>>> 2, 3 and 4 in Section III. Some parties may have mentioned UDRP, and >>>>>>> others not, but that does not take away from the totality of the >>>>>>> commenters who want court orders -- or want court orders for certain >>>>>>> categories of requests such as privacy requests to p/p providers from >>>>>>> third parties, such as intellectual property requests. To divide up >>>>>>> these comments really dilutes the argument, I think, as these commenters >>>>>>> favor court order for the key issue we are evaluating. >>>>>>> >>>>>>> So I would recommend keeping Google, Endurance, Wheelhouse, ICA and Easy >>>>>>> DNS together in Category 2. >>>>>>> >>>>>>> The ISPCP Constituency Comments call for an "independent adjudicator" to >>>>>>> "determine the merits of their ("intellectual property rights holders") >>>>>>> claims. I thought that was pretty clear reference to a judge or >>>>>>> magistrate, but if you see it differently, please let me know. >>>>>>> >>>>>>> Re Blacknight, on the issue of Annex E or court order, the comments >>>>>>> appear to come down squarely for court orders. For LEA, it recommends a >>>>>>> different approach, but there is no reference to Annex E, only "a >>>>>>> request from law enforcement, Irish consumer protection agencies or a >>>>>>> court order with jurisdiction over us." The intellectual property >>>>>>> requests falls into the final category -- court order -- and as such, >>>>>>> this comment would be properly listed here. >>>>>>> >>>>>>> Re: APC, Alliance for Progressive Communications, you are right that I >>>>>>> missed a step in putting this comment forward. The question this quote >>>>>>> addresses, and it is a valuable one, is court orders and jurisdiction -- >>>>>>> from which jurisdiction are court orders are valid? Here APC provides >>>>>>> us with unique insight, very worth passing onto the WG: that release of >>>>>>> domain name data in some countries has and will continue to result in >>>>>>> arrest, prosecution, conviction, etc. of "domain owners" who are >>>>>>> "exercising activism" online. This is a very tough issue that we >>>>>>> discussed in the WG, and APC is on the ground in Africa and near the >>>>>>> Middle East to see abuses first hand. >>>>>>> >>>>>>> As the WG explores the issue of court orders, the next question is: from >>>>>>> what jurisdiction should/must p/p provider accept a court order? The APC >>>>>>> comment reminds us that what is clearly legal in one country is >>>>>>> punishable in another -- and that jurisdictional issues for court orders >>>>>>> are a key part of what we (the WG) have to keep in mind. If you would >>>>>>> like to create a introductory paragraph, or new section, for this type >>>>>>> of discussion, I would certainly welcome it! >>>>>>> >>>>>>> Best, >>>>>>> Kathy >>>>>>> : >>>>>>> >>>>>>> Thanks Kathy. One minor formatting suggestion: >>>>>>> >>>>>>> >>>>>>> >>>>>>> I think the spectrum that we outline on page 5 (Categories 1-4) is >>>>>>> useful, because not all of these comments are advocating for the same >>>>>>> thing. Yet the quotes that we¹ve added from the comments are all >>>>>>> included under Category 2, which is somewhat confusing. I would suggest >>>>>>> that we move: >>>>>>> >>>>>>> >>>>>>> >>>>>>> · The quotes from the comments from Google, Endurance >>>>>>> International Group, and Jeff Wheelhouse to the paragraph on Category 3. >>>>>>> >>>>>>> · The quotes from the comments from ICA and Easy DNS to the >>>>>>> paragraph on Category 4. >>>>>>> >>>>>>> >>>>>>> >>>>>>> Also, I saw that you added quotes from the comments from ISPCPC, >>>>>>> Blacknight, and the Association for Progressive Communications, even >>>>>>> though those weren¹t in our initial summary and don¹t specifically >>>>>>> mention Annex E. My thoughts on each: >>>>>>> >>>>>>> >>>>>>> >>>>>>> · Here¹s the full ISPCPC quote, from a section titled ³Regarding >>>>>>> LEA definitions & differentiations²: ³While we respect the desire to >>>>>>> utilize the official ICANN definition of Law Enforcement Agent (LEA), we >>>>>>> acknowledge that intellectual property rights holders and private anti >>>>>>> abuse organizations should be treated as complainants and not >>>>>>> indisputably wronged parties, and accordingly an independent adjudicator >>>>>>> should determine the merits of their claim before rights that users >>>>>>> would otherwise have are abrogated by reason of those lawyers' claims.² >>>>>>> To be honest, I¹m not really sure what to make of that (especially given >>>>>>> that it is included under a heading about LEA definitions). But I¹m not >>>>>>> sure that we can assume that it means disclosure only following a court >>>>>>> order. Why would Annex E as currently drafted not satisfy the standard >>>>>>> of ³an independent adjudicator should determine the merits of their >>>>>>> claim²? >>>>>>> >>>>>>> · I also don¹t understand why we would think that the Blacknight >>>>>>> quote is incompatible with Annex E. All it says is that ³any policy >>>>>>> that would require us to divulge our client¹s information in the absence >>>>>>> of either a request from law enforcement, Irish consumer protection >>>>>>> agencies or a court order with jurisdiction over us is incompatible with >>>>>>> Irish law.² But Annex E as currently drafted doesn¹t require Blacknight >>>>>>> to divulge its client¹s information. Rather, it gives Blacknight the >>>>>>> discretion to make that decision; all it requires is that Blacknight >>>>>>> provide the complainant with its reasoning if it chooses to refuse. >>>>>>> >>>>>>> · I don¹t understand why we¹d include a quote from the APC comment >>>>>>> in this section, given that it does not mention Annex E, and that it >>>>>>> expressly endorsed the NCSG comment (see: >>>>>>> http://forum.icann.org/lists/comments-ppsai-initial-05may15/pdfwOfjgYV0i >>>>>>> 9.pdf >>>>>>> <http://forum.icann.org/lists/comments-ppsai-initial-05may15/pdfwOfjgYV0 >>>>>>> i9.pdf> ), which we analyze in the previous section that supports the >>>>>>> premise of Annex E. >>>>>>> >>>>>>> >>>>>>> >>>>>>> From:gnso-ppsai3-bounces@icann.org >>>>>>> <mailto:gnso-ppsai3-bounces@icann.org> >>>>>>> [mailto:gnso-ppsai3-bounces@icann.org >>>>>>> <mailto:gnso-ppsai3-bounces@icann.org> ] On Behalf Of Kathy Kleiman >>>>>>> Sent: Wednesday, August 26, 2015 5:17 PM >>>>>>> To: gnso-ppsai3(a)icann.org <mailto:gnso-ppsai3@icann.org> >>>>>>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview >>>>>>> >>>>>>> >>>>>>> >>>>>>> Hi All, >>>>>>> Tx to Darcy for the Overview work. I've taken her draft and added to it >>>>>>> my work on Section III as promised on the last call. I added more quotes >>>>>>> from commenters seeking court orders and the use of existing legal due >>>>>>> process mechanisms prior to disclosure of proxied data. There was a wide >>>>>>> array of comments on this issue, including from ISPs, individuals, >>>>>>> organizations, and companies. >>>>>>> >>>>>>> I used Darcy's version as the base. Both her edits (Overview) and my >>>>>>> edits (Section III) are shown in "track changes." >>>>>>> >>>>>>> Best, >>>>>>> Kathy >>>>>>> >>>>>>> : >>>>>>> >>>>>>> Hi, all! >>>>>>> >>>>>>> In follow up to our call earlier this week, attached is an updated >>>>>>> Sub-team 3 analysis draft with the overview added at the beginning. I >>>>>>> redlined my changes so you can clearly see what I¹ve done. I hope you >>>>>>> find that I present a clear and accurate overview. >>>>>>> >>>>>>> >>>>>>> >>>>>>> I also made some minor revisions to Section V (³Comments that did not >>>>>>> fit neatly into any of the above categories²) that I realized after >>>>>>> submitting my original draft of that section made a bit more sense. >>>>>>> Again, I¹ve redlined the changes so you can easily see what changed. >>>>>>> >>>>>>> >>>>>>> >>>>>>> Please let me know if there are any questions. >>>>>>> >>>>>>> >>>>>>> >>>>>>> Thanks, >>>>>>> >>>>>>> Darcy >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> _______________________________________________ >>>>>>> Gnso-ppsai3 mailing list >>>>>>> Gnso-ppsai3(a)icann.org <mailto:Gnso-ppsai3@icann.org> >>>>>>> https://mm.icann.org/mailman/listinfo/gnso-ppsai3 >>>>>>> <https://mm.icann.org/mailman/listinfo/gnso-ppsai3> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>> <Revised Illustrative Disclosure Framework for Intellectual Property >>>>> Righ...[2][1].docx>_______________________________________________ >>>>> Gnso-ppsai3 mailing list >>>>> Gnso-ppsai3(a)icann.org <mailto:Gnso-ppsai3@icann.org> >>>>> https://mm.icann.org/mailman/listinfo/gnso-ppsai3 >>>>> <https://mm.icann.org/mailman/listinfo/gnso-ppsai3> >>>>> >>>> _______________________________________________ >>>> Gnso-ppsai3 mailing list >>>> Gnso-ppsai3(a)icann.org >>>> https://mm.icann.org/mailman/listinfo/gnso-ppsai3 >>> >

2 2

Follow up from WG call yesterday
by Mary Wong Sept. 16, 2015

Sept. 16, 2015

Hello everybody, Here are the notes I captured from the WG discussion yesterday; we should have the full transcript and MP3 recording uploaded by tomorrow at the latest but I thought these notes might be helpful, at least as an initial framework for the next Sub Team discussion: Section I.B.(iii): - Need to discuss retaining it in some form; costs are real for providers Section II: - Should there be provision for indemnification to provider against misuse of data? (NOTE: unlikely to gain support, so possibly no need to add) - A(6)(b)(ii): can a requester under the new wording keep/use the data to assocate with other information about the registrant e.g. for future or other requests? Does reverse apply to registrar/provider ie do they keep data that's sent to them? Section III: - III.B: Secure communications may not be as easily or readily done as might be desired (so revision is well-intended but maybe not entirely practical) - 5 calendar days rather than 3 is more reasonable from providers' perspective - saying "encouraged" but not mandating action would nullify need for this section B (NOTE: many people on the call agree with this, one objected) - III.C.: use some other word than “surrender”, and one that makes clear this does not mean a transfer; in any event, clarify that it's a deletion at the option of a customer (NOTE: there was some discussion over whether providers must be required to offer this option; reminder that previous WG discussions had led to agreement to NOT make it mandatory due to varying provider practices) - III.C.(v) & (vi): do they overlap? Should they be merged? Annex I: - Keep both options to clarify they are two possible ways of dealing with the issues? Would you like to do a Sub Team call to walk through these suggestions, or should we continue to discuss first by email? I will check with the WG co-chairs when they would like a revised, more finalized, set of recommendations to be presented to the WG (if possible). 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: "Williams, Todd" <Todd.Williams(a)turner.com> Date: Tuesday, September 15, 2015 at 21:19 To: Holly Raiche <h.raiche(a)internode.on.net>, Mary Wong <mary.wong(a)icann.org> Cc: "gnso-ppsai3(a)icann.org" <gnso-ppsai3(a)icann.org> Subject: RE: [Gnso-ppsai3] Additional Comments for Sub Team Consideration > Thanks Holly. As I mentioned when I circulated the draft (see attached > email): > > “for Sara, Kathy, and the others on our sub-team who have argued that > “verifiable evidence” means something higher let us know how you would > further edit Sections II(A), (B), and (C) to meet whatever “higher” standard > you have in mind.” > > > From: gnso-ppsai3-bounces(a)icann.org [mailto:gnso-ppsai3-bounces@icann.org] On > Behalf Of Holly Raiche > Sent: Tuesday, September 15, 2015 8:43 AM > To: Mary Wong <mary.wong(a)icann.org> > Cc: gnso-ppsai3(a)icann.org > Subject: Re: [Gnso-ppsai3] Additional Comments for Sub Team Consideration > > Yes, it does help - particularly since I recognise my words in the extract. > What it suggests, however, is acceptance that the elements a requested gives > to a provider amounts to the standard of evidence that is ‘verifiable’ - as > described below. My question to the group, therefore, is whether the addition > of those words has been agreed upon by the group. If not, the words should > not be there; their mere presence suggests agreement, and puts the onus on > those of us who don’t agree to argue for the removal of words that were not > agreed to. > > > > Sorry to be pedantic, folks, but the presence of those words suggests a level > of agreement that I am not aware of. > > > > Holly > > On 15 Sep 2015, at 10:27 pm, Mary Wong <mary.wong(a)icann.org> wrote: > > >> Hi Holly and everyone, >> >> >> >> As Todd noted in his report to the full WG last week on behalf of the Sub >> Team, the document doesn’t represent the finished consensus product of the >> Sub Team but rather is being presented as a tool for further WG discussion. >> The document includes certain revisions that were added to more fully reflect >> the comments that were received, and as such could be one form of a revised >> Annex E however, as Todd mentioned, it isn’t the agreed result of the Sub >> Team’s substantive analysis. >> >> >> >> Similarly, in the summary document that was also sent out in tandem, here is >> how the Sub Team’s discussion on the question of “verifiable evidence” was >> presented: >> >> >> >> "Further, the Save Domain Privacy petition, which had 10,042 signatories and >> also included [x] number of additional statements, argued that “privacy >> providers should not be forced to reveal my private information without >> verifiable evidence of wrongdoing.” We as a sub-team could not agree on how >> to interpret “verifiable evidence,” and will leave that discussion to the >> larger WG. Some on the sub-team viewed these comments as supporting Annex E >> because the requirements in Annex E as currently formulated can be >> interpreted as constituting verifiable evidence, while others on the sub-team >> interpret ‘verifiable evidence’ as requiring a court order and therefore not >> in support of Annex E. However, some also noted that the word “verifiable” >> does not imply that the evidence has been tested through a legal process; >> rather, it simply points toward requiring that evidence provided must be >> credible/provable enough so that, in a legal proceeding, it would withstand >> legal scrutiny, but does not necessarily imply that there must have been a >> court process in all cases." >> >> >> >> Does this help? >> >> >> >> 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: Holly Raiche <h.raiche(a)internode.on.net> >> Date: Tuesday, September 15, 2015 at 20:18 >> To: Mary Wong <mary.wong(a)icann.org>, "gnso-ppsai3(a)icann.org" >> <gnso-ppsai3(a)icann.org> >> Cc: "Williams, Todd" <Todd.Williams(a)turner.com>, Sara Bockey >> <sbockey(a)godaddy.com> >> Subject: Re: [Gnso-ppsai3] Additional Comments for Sub Team Consideration >> >> >>> >>> Folks >>> >>> >>> >>> I apologise for not participating over the past week - I’ve been away. >>> >>> >>> >>> My question is, next to the headings on request for templates, the words >>> after requester provides to the service provider, the words ‘verifiable >>> evidence of wrong doing, including’…. >>> >>> >>> >>> What that implies is that the following text lists what would constitute >>> ‘verifiable evidence’ and indeed, the word ‘including’ suggests that other >>> elements can also constitute ‘verifiable evidence’. Has the group agreed on >>> this? >>> >>> >>> >>> My impression was that we had not yet agreed what the term meant, but that >>> it must be evidence of a very high standard - impliedly something that could >>> be used in court processes. I am not convinced that the elements listed >>> under Heading II meet that test. >>> >>> >>> >>> So Mary, others, was this agreed? >>> >>> >>> >>> Thanks >>> >>> >>> >>> Holly >>> >>> On 15 Sep 2015, at 7:11 am, Sara Bockey <sbockey(a)godaddy.com> wrote: >>> >>> >>>> Thanks, Todd. >>>> >>>> >>>> >>>> From: "Williams, Todd" >>>> Date: Monday, September 14, 2015 at 1:18 PM >>>> To: Sara Bockey, Mary Wong, "gnso-ppsai3(a)icann.org >>>> <mailto:gnso-ppsai3@icann.org> " >>>> Subject: RE: [Gnso-ppsai3] Additional Comments for Sub Team Consideration >>>> >>>> >>>> >>>> Thanks Sara. I’m still confused. In order: >>>> >>>> >>>> >>>> · I still don’t see any mention in the CDT comment re: removal of >>>> alleged infringing materials in lieu of disclosure. I do see support for >>>> the additional language that the attached draft adds to III(C)(vii) about >>>> “specific information, facts and/or circumstances showing that disclosure >>>> to the Requester will endanger the safety of the Customer” (in fact, that >>>> language was added specifically to capture the point of the paragraph from >>>> the CDT comment that you’ve quoted below). But that is completely >>>> different from what you’ve added, for which I cannot find any support in >>>> any of the public comments. I also don’t understand your claim that >>>> “rights and actions available to the registrant are sorely lacking in Annex >>>> E” given that Annex E explicitly contemplates notice to the registrant >>>> and contemplates input from the registrant in Sections III(A), III(C)(ii), >>>> III(C)(iii), III(C)(iv), III(C)(vi), and III(C)(vii). >>>> >>>> · The portion of the NCSG comment that you’ve cited addressed the >>>> appeals mechanism of Section III(F), not the reconsideration mechanism of >>>> III(E). In fact, the attached draft removes the appeal mechanism of III(F) >>>> precisely because of the language that you quoted below from the NCSG >>>> comment (among others). But that language has nothing to do with III(E). >>>> >>>> · I don’t understand what the comments from Key Systems, Ralf >>>> Haring, or Adam Creighton have to do with III(E) which again, is only >>>> talking about a request for reconsideration. Moreover, the Key Systems >>>> comment is simply inaccurate: the Disclosure Framework never “assume[d] >>>> disclosure if certain process steps are followed regardless of the merits >>>> of the complaint” a point that the attached revised draft now makes >>>> explicit in the preamble (“by not requiring that disclosure automatically >>>> follow any given request”). >>>> >>>> >>>> >>>> Just to reiterate: I’ve always viewed our job in the two documents that our >>>> sub-team has drafted as being to accurately report to the larger WG what >>>> the comments that we’ve reviewed say. Which means two things: 1) we have >>>> to be true to the comments, and not reinterpret them to say something they >>>> don’t; and 2) we have to reserve our advocacy for or against certain points >>>> from those comments for the larger WG discussion. That’s what I tried to >>>> do in the attached. So if you want to argue against Annex E, that’s fine >>>> do so on the call tomorrow. In fact, I’m planning to argue against several >>>> of the proposed changes that are included in the attached. But I still >>>> included those proposed changes in the attached draft, and accurately noted >>>> which comments they were based on because to do otherwise would be >>>> misleading to the larger WG. >>>> >>>> >>>> >>>> From: Sara Bockey [mailto:sbockey@godaddy.com <mailto:sbockey@godaddy.com> >>>> ] >>>> Sent: Monday, September 14, 2015 3:50 PM >>>> To: Williams, Todd <Todd.Williams(a)turner.com >>>> <mailto:Todd.Williams@turner.com> >; Mary Wong <mary.wong(a)icann.org >>>> <mailto:mary.wong@icann.org> >; gnso-ppsai3(a)icann.org >>>> <mailto:gnso-ppsai3@icann.org> >>>> Cc: Sara Bockey <sbockey(a)godaddy.com <mailto:sbockey@godaddy.com> > >>>> Subject: Re: [Gnso-ppsai3] Additional Comments for Sub Team Consideration >>>> >>>> >>>> >>>> Todd, >>>> >>>> >>>> >>>> Please see my comments inline below. >>>> >>>> >>>> >>>> Disclaimer: I do not support Annex E. >>>> >>>> >>>> >>>> Sara >>>> >>>> >>>> >>>> From: "Williams, Todd" >>>> Date: Monday, September 14, 2015 at 11:57 AM >>>> To: Sara Bockey, Mary Wong, "gnso-ppsai3(a)icann.org >>>> <mailto:gnso-ppsai3@icann.org> " >>>> Subject: RE: [Gnso-ppsai3] Additional Comments for Sub Team Consideration >>>> >>>> >>>> >>>> Sara: >>>> >>>> >>>> >>>> Two quick questions on this as I was getting ready for our call tomorrow: >>>> >>>> >>>> >>>> 1) Your addition of a new III(C)(v) stating “the Customer has removed >>>> the infringing trademark and/or copyright material in lieu of disclosure” >>>> what public comment that we reviewed was that change based on? >>>> >>>> >>>>> >>>>> Based on CDT’s comment re registrant’s ability to respond to allegations >>>>> removal of alleged infringing materials in lieu of disclosure would fall >>>>> into this category. Rights and actions available to the registrant are >>>>> sorely lacking in Annex E. >>>> >>>> >>>>> Mere allegation of infringement or illegality is insufficient cause for a >>>>> provider to disclose a customer’s data to a third party; it is frequently >>>>> trivially easy for a party abusing the system to allege frivolous or >>>>> nonexistent civil claims to justify a demand for personal information. >>>>> Registrants should have the ability and opportunity to respond to the >>>>> allegations and to the dangers to which they, their families, and their >>>>> organizations might be subjected, and to obtain counsel on these matters. >>>>> Revealing a customer’s registration data should only occur when there has >>>>> been a substantial >>>>> showing of likelihood of abuse and only after due process. >>>> >>>> >>>> >>>> >>>>> >>>>> 2)Can you show me where in the NCSG comment (here: >>>>> >>>>> http://forum.icann.org/lists/comments-ppsai-initial-05may15/pdfBoyWzlMS3q. >>>>> pdf >>>>> <http://forum.icann.org/lists/comments-ppsai-initial-05may15/pdfBoyWzlMS3q >>>>> .pdf> >>>>> >>>>> ) the NCSG argued for the addition of the clause “in instances where >>>>> Requester has discovered and submitted additional evidence or information >>>>> which warrants consideration” to III(E)? You noted that this change was >>>>> based on the NCSG comment, but I can’t find anything in that comment that >>>>> mentions III(E) though admittedly I could have missed it. >>>> >>>> >>>> >>>> >>>>> Based on NCSG comment re unlimited appeals . >>>>> >>>>> Under no circumstances should Intellectual Property Interests, Law >>>>> Enforcement or any other Requestors have unlimited appeals to third party >>>>> dispute resolution providers. It will be far more than an implementation >>>>> detail to define this appellate procedure but a whole new arbitration >>>>> forum of its own will need to be created and a UDRP process undiscussed >>>>> and unplanned by this Working Group. All deliberation about appeal >>>>> mechanisms should be set aside at this time. Any Intellectual Property >>>>> owner or group that feels a Provider is routinely denying appropriate >>>>> requests will have full access to the growing and increasingly responsive >>>>> ICANN Compliance Team which will be accessible to Complainers through >>>>> the accreditation process now being created. >>>>> >>>>> Key Systems’ comment would also support this addition: >>>>> >>>>> We do not support the proposed Disclosure Framework as it assumes >>>>> disclosure if certain process steps are followed regardless of the merits >>>>> of the complaint. >>>>> >>>>> As well as Ralf Haring’s comment: >>>>> >>>>> [Disagree with proposal that] Providers can be forced to give your private >>>>> contact details to anyone complaining that your site violates their >>>>> copyright or trademark. >>>>> >>>>> And Adam Creighton’s comment: >>>>> >>>>> I think the language is too loose, and opens individuals up to frivolous >>>>> litigation from IP rights owners and third-party agencies whose contracted >>>>> relationship is to expand IP brand presence. >>>> >>>> >>>> Thanks. >>>> >>>> >>>> Todd. >>>> >>>> >>>> >>>> From: Sara Bockey [mailto:sbockey@godaddy.com <mailto:sbockey@godaddy.com> >>>> ] >>>> Sent: Friday, September 04, 2015 4:40 PM >>>> To: Williams, Todd <Todd.Williams(a)turner.com >>>> <mailto:Todd.Williams@turner.com> >; Mary Wong <mary.wong(a)icann.org >>>> <mailto:mary.wong@icann.org> >; gnso-ppsai3(a)icann.org >>>> <mailto:gnso-ppsai3@icann.org> >>>> Cc: Sara Bockey <sbockey(a)godaddy.com <mailto:sbockey@godaddy.com> > >>>> Subject: Re: [Gnso-ppsai3] Additional Comments for Sub Team Consideration >>>> >>>> >>>> >>>> Hi all, >>>> >>>> >>>> >>>> As promised, attached is a redline of my input to the proposed changes Todd >>>> drafted. Todd was pretty thorough and had included several revisions I had >>>> in mind based on the comments so my edits are limited to a few comments and >>>> additions. >>>> >>>> >>>> >>>> Best regards, >>>> >>>> >>>> >>>> Sara >>>> >>>> >>>> >>>> >>>> >>>> From: <gnso-ppsai3-bounces(a)icann.org <mailto:gnso-ppsai3-bounces@icann.org> >>>> > on behalf of "Williams, Todd" >>>> Date: Wednesday, September 2, 2015 at 2:58 PM >>>> To: Mary Wong, "gnso-ppsai3(a)icann.org <mailto:gnso-ppsai3@icann.org> " >>>> Subject: Re: [Gnso-ppsai3] Additional Comments for Sub Team Consideration >>>> >>>> >>>> >>>> All: >>>> >>>> >>>> >>>> As promised on our call, attached is a redline of the Draft Disclosure >>>> Framework, with annotations noting the source of each proposed change. >>>> Several notes as you review: >>>> >>>> >>>> >>>> · I know that we’ve debated whether “verifiable evidence” means more >>>> than what is currently in Sections II(A), (B), and (C). You’ll see that >>>> I’ve added the exact wording from the savedomainprivacy.org >>>> <http://savedomainprivacy.org/> petition “verifiable evidence of >>>> wrongdoing” to those sections. I think that is a good fit, as of right >>>> now. But for Sara, Kathy, and the others on our sub-team who have argued >>>> that “verifiable evidence” means something higher let us know how you >>>> would further edit Sections II(A), (B), and (C) to meet whatever “higher” >>>> standard you have in mind. >>>> >>>> · You’ll note that I briefly added a reference to the comment from >>>> Com Laude (which I think we had omitted from our summary). And that I did >>>> not reference the comment from Aaron Myers (which we’ve referenced in our >>>> summary, but which doesn’t really offer any edits to the Disclosure >>>> Framework). Otherwise I think I’ve covered everything that we reviewed in >>>> terms of edits to the Disclosure Framework though let me know if anybody >>>> sees anything I’ve missed. >>>> >>>> · Just to be clear for the record: the attached is a revised >>>> Disclosure Framework that illustrates and attempts to account for all of >>>> the proposed edits that we received from the public comments, for the >>>> larger Working Group’s reference. But it is not how I would have edited >>>> the Disclosure Framework. In fact, I’ll reserve the right to argue against >>>> some of these proposed edits, once we get into the larger WG discussion. >>>> Just wanted to make that clear so that nobody thinks these edits are mine >>>> (since I’m the one who drafted the document). >>>> >>>> >>>> >>>> Thanks. >>>> >>>> >>>> >>>> Todd. >>>> >>>> >>>> >>>> From:gnso-ppsai3-bounces@icann.org <mailto:gnso-ppsai3-bounces@icann.org> >>>> [mailto:gnso-ppsai3-bounces@icann.org >>>> <mailto:gnso-ppsai3-bounces@icann.org> ] On Behalf Of Mary Wong >>>> Sent: Wednesday, September 02, 2015 6:59 AM >>>> To: gnso-ppsai3(a)icann.org <mailto:gnso-ppsai3@icann.org> >>>> Subject: [Gnso-ppsai3] Additional Comments for Sub Team Consideration >>>> >>>> >>>> >>>> Hello again everyone, >>>> >>>> >>>> >>>> As you look through the proposed revised summary document (below), you may >>>> also wish to consider whether some of the additional comments that were >>>> included in Part 4 of the overall WG Public Comment Review Tool might be >>>> useful such that additional notes or recommendations can be made, or >>>> existing language amended. For your convenience I’ve extracted ten such >>>> comments which, while not sent in as specific responses to the Preliminary >>>> Recommendations and Annex E that this Sub Team is analysing, nonetheless >>>> seem relevant generally. >>>> >>>> >>>> >>>> I attach these ten comments in tabular form to this email, and welcome the >>>> Sub Team’s discussion and comments on whether any of them ought to be >>>> considered as well as your thoughts on the summary document. >>>> >>>> >>>> >>>> As the Sub Team is due to report back to the full WG next Tuesday, please >>>> let me know also if you think a call before then amongst the Sub Team >>>> members might be needed. >>>> >>>> >>>> >>>> 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 <mailto:mary.wong@icann.org> >>>> >>>> >>>> >>>> >>>> >>>> From: Mary Wong <mary.wong(a)icann.org <mailto:mary.wong@icann.org> > >>>> Date: Monday, August 31, 2015 at 15:46 >>>> To: "gnso-ppsai3(a)icann.org <mailto:gnso-ppsai3@icann.org> " >>>> <gnso-ppsai3(a)icann.org <mailto:gnso-ppsai3@icann.org> > >>>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview >>>> >>>> >>>>> >>>>> Hello everyone, in an attempt to facilitate further dialogue and, >>>>> hopefully, consensus on a way forward on this issue, I’ve taken the >>>>> liberty of amending Kathy’s document to take into account Holly’s comments >>>>> as well as to attempt to place certain comments (e.g. the ICA’s, EasyDNS’) >>>>> more specifically within a particular category. I attach both a redlined >>>>> and clean copy of this latest updated version (with the clean copy >>>>> including yellow highlighted portions where the most significant language >>>>> changes are suggested). I have not yet broken the comments down further >>>>> into the registrant/provider distinction that Todd noted, but can of >>>>> course do so if this is viewed as useful. >>>>> >>>>> >>>>> >>>>> Please note that this is not a staff position that is being suggested, but >>>>> merely an attempt to document where the Sub Team’s discussion seems to be >>>>> at the moment. I hope this is helpful. >>>>> >>>>> >>>>> >>>>> 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 <mailto:mary.wong@icann.org> >>>>> >>>>> >>>>> >>>>> >>>>> >>>>> From: <gnso-ppsai3-bounces(a)icann.org >>>>> <mailto:gnso-ppsai3-bounces@icann.org> > on behalf of "Williams, Todd" >>>>> <Todd.Williams(a)turner.com <mailto:Todd.Williams@turner.com> > >>>>> Date: Friday, August 28, 2015 at 22:40 >>>>> To: Kathy Kleiman <kathy(a)kathykleiman.com <mailto:kathy@kathykleiman.com> >>>>> >, "gnso-ppsai3(a)icann.org <mailto:gnso-ppsai3@icann.org> " >>>>> <gnso-ppsai3(a)icann.org <mailto:gnso-ppsai3@icann.org> > >>>>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview >>>>> >>>>> >>>>>> >>>>>> Thanks Kathy. I both agree and disagree with what you’ve said below. >>>>>> >>>>>> >>>>>> >>>>>> I strongly agree that “the key is the quotes that have come out of the >>>>>> comments.” I’ve said repeatedly that our job as a sub-team is not to >>>>>> advocate, but to simply present the comments to the WG in as accurate and >>>>>> objective a way as possible. To the extent that we then want to advocate >>>>>> for our own positions as part of the larger WG, we can do so. Moreover, >>>>>> part of the reason why I feel so strongly that “the key is the quotes” is >>>>>> that I think we have to take the comments at face value, and then debate >>>>>> as WG whether we can reach consensus on what they actually say not on >>>>>> what we want them to say. That’s why I felt so strongly that “verifiable >>>>>> evidence” should not be reinterpreted to mean a court order. It is also >>>>>> what animated my email exchange with Stephanie in the larger WG >>>>>> (attached). >>>>>> >>>>>> >>>>>> >>>>>> And if we are in fact faithful to what the comments actually say, then it >>>>>> is a mistake to lump all of the “court order” comments into one >>>>>> monolithic group. I’ve given some examples of substantive differences >>>>>> below. But let me give another one: if we look at what they actually >>>>>> say, the “court order” comments are very much divided based on whether >>>>>> the comment came from an individual registrant or from a >>>>>> registrar/provider. Which of course makes sense: a registrant will tend >>>>>> to look at these issues very differently than a provider. Specifically, >>>>>> as you correctly note in our draft, the vast majority of comments >>>>>> (11,000+) from individuals/registrants said that “Everyone deserves the >>>>>> right to privacy” and that “No one’s personal information should be >>>>>> revealed without a court order, regardless of whether the request comes >>>>>> from a private individual or law enforcement agency.” And of course, we >>>>>> can understand why registrants would argue that their right to privacy is >>>>>> inviolate, and that it should never be abrogated unless a court blesses >>>>>> it. >>>>>> >>>>>> >>>>>> >>>>>> But note that the registrar/provider comments in the “court order” group >>>>>> do NOT say the same thing. Rather, they are focused on retaining their >>>>>> discretion as to when to disclose or publish, and do not want an >>>>>> accreditation standard that requires them to do so absent a court order. >>>>>> Hence my point about the word “require” in the Blacknight comment. See >>>>>> also the Key Systems comment: “Disclosure or publication should never be >>>>>> the automatic result of a process, but rather remain an option of the >>>>>> provider.” And others. So one key distinction b/w the >>>>>> registrant/individual comments and the registrar/provider comments is >>>>>> that the registrant comments do not want disclosure or publication EVER >>>>>> unless following a court order, while the provider comments want a court >>>>>> order first if SOMEBODY ELSE wants them to disclose or publish, but not >>>>>> if THEY want to disclose or publish. And we can understand why, given >>>>>> how many provider Terms of Service include language that gives them >>>>>> discretion to basically turn off a P/P Service whenever they want (for >>>>>> example, if the registrant stops paying them), without any kind of >>>>>> process beforehand (due process or otherwise). See below (among many >>>>>> others): >>>>>> >>>>>> >>>>>> >>>>>> · Blacknight: https://www.blacknight.com/acceptable-usage.html >>>>>> <https://www.blacknight.com/acceptable-usage.html> . >>>>>> >>>>>> · Whoisprivacy.com <http://whoisprivacy.com/> , Ltd.: >>>>>> http://www.whoisprivacyservices.com.au/terms.htm >>>>>> <http://www.whoisprivacyservices.com.au/terms.htm> . >>>>>> >>>>>> · EuroDNS S.A.: >>>>>> https://www.eurodns.com/terms-and-conditions/whois-privacy >>>>>> <https://www.eurodns.com/terms-and-conditions/whois-privacy> . >>>>>> >>>>>> · 1&1 Internet, Inc.: http://www.1and1.com/TcPdr?__lf=Static >>>>>> <http://www.1and1.com/TcPdr?__lf=Static> . >>>>>> >>>>>> · Domain.com <http://domain.com/> , LLC: >>>>>> http://www.domain.com/legal/legal_domain.bml#domain-privacy-service >>>>>> <http://www.domain.com/legal/legal_domain.bml#domain-privacy-service> . >>>>>> >>>>>> · DomainIt, Inc.: https://www.domainit.com/terms.html >>>>>> <https://www.domainit.com/terms.html> . >>>>>> >>>>>> · Moniker Privacy Services, LLC: >>>>>> http://www.moniker.com/legal/registration-agreement >>>>>> <http://www.moniker.com/legal/registration-agreement> . >>>>>> >>>>>> >>>>>> >>>>>> So we can understand why providers would not want an accreditation regime >>>>>> that requires them to get a court order before they turn off a >>>>>> registrant’s privacy service (and to rewrite their Terms of Service >>>>>> accordingly). In fact, Volker has already admitted both on the email >>>>>> list (see attached) and on our weekly calls (see transcript of 8-11-15 >>>>>> call) that such an accreditation requirement would have such a “severe >>>>>> impact” on the economic realities of providers (in other words, would >>>>>> cost them so much money), that they could never agree to such a >>>>>> requirement. But of course, if I’m an individual registrant concerned >>>>>> about my privacy and due process, then I could care less about the >>>>>> “economic realities” of providers. >>>>>> >>>>>> >>>>>> >>>>>> My point is only that we can’t gloss over that important distinction (and >>>>>> others) by lumping all of the “court order” comments together as if they >>>>>> were coming from the same place and advocating for the same thing. >>>>>> They’re not. >>>>>> >>>>>> >>>>>> >>>>>> From: Kathy Kleiman [mailto:kathy@kathykleiman.com >>>>>> <mailto:kathy@kathykleiman.com> ] >>>>>> Sent: Friday, August 28, 2015 8:44 AM >>>>>> To: Williams, Todd <Todd.Williams(a)turner.com >>>>>> <mailto:Todd.Williams@turner.com> >; gnso-ppsai3(a)icann.org >>>>>> <mailto:gnso-ppsai3@icann.org> >>>>>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview >>>>>> >>>>>> >>>>>> >>>>>> Hi Todd, >>>>>> The entire WG is now looking to our comments to show what supports Annex >>>>>> E (deemed generally to be a lower standard than court order) and Court >>>>>> Order (deemed to be a much higher standard than Annex E). What we are >>>>>> talking about is the floor, not the ceiling, right, for accreditation? >>>>>> Namely, what is the minimum requirement for disclosure of proxied data? >>>>>> I see it as really quite binary - up or down (Annex E or court order for >>>>>> private requests to p/p providers) - but I can understand if the subteam >>>>>> thinks differently. >>>>>> >>>>>> What I think is key is the quotes that have come out of the comments. >>>>>> Provided we keep the quotes, I'm good.I can rework, but not until end of >>>>>> weekend or early next week. >>>>>> >>>>>> Best, >>>>>> Kathy >>>>>> : >>>>>>> >>>>>>> Thanks Kathy. >>>>>>> >>>>>>> >>>>>>> >>>>>>> · When you say that “in the weeks since the original draft, I >>>>>>> think the discussion has evolved from a multipart one . . . to a binary >>>>>>> one” what are you basing that on? Can you point to any transcripts or >>>>>>> emails? I certainly don’t remember being part of those discussions. >>>>>>> >>>>>>> · Moreover, had I been involved in those discussions, I would have >>>>>>> objected, because I think that lumping the comments together in the way >>>>>>> that you have, and ignoring the categories that our sub-team had already >>>>>>> agreed upon, does a disservice to the nuance of the comments from >>>>>>> Google, ICA, EasyDNS, and the like. For example, a UDRP panel is not a >>>>>>> court. I think that is an important distinction between Categories 2 >>>>>>> and 3. And the fact that the ICA and EasyDNS comments would allow for >>>>>>> “some exceptions for cases of abuse” is another important distinction >>>>>>> that the broader WG ought to know about. I’m fine if we want to include >>>>>>> some sort of introductory sentence saying that __ comments opposed the >>>>>>> basic premise of Annex E (which we do). But to then argue that those >>>>>>> comments are monolithic, or that they all oppose the premise of Annex E >>>>>>> in the same way, is not accurate. >>>>>>> >>>>>>> · I simply understood the ISPCP comment to mean that allegations >>>>>>> of infringement should not always be automatically taken as true (“not >>>>>>> indisputably wronged parties”), and that some independent adjudicator >>>>>>> (meaning, somebody other than the IP owner who is making the allegation) >>>>>>> should evaluate the merits of those claims. Annex E as currently >>>>>>> drafted provides for that. But I also don’t think that you or I should >>>>>>> necessarily be the ones to decide this argument. Why can’t we just say >>>>>>> that we weren’t quite sure what to do with this one (as was true with >>>>>>> some others), and take it to the larger WG for their consideration. >>>>>>> >>>>>>> · I think you’re missing my point on Blacknight. My point is that >>>>>>> the key word is “require.” As I mentioned below, nothing in Annex E >>>>>>> “requires” Blacknight to disclose (merely to give reasons if they refuse >>>>>>> to disclose). So I don’t see anything in their comment that is >>>>>>> inconsistent with Annex E. >>>>>>> >>>>>>> · On the APC comment: I don’t disagree with you that the comment >>>>>>> has important value for the WG. But that’s not the same thing as saying >>>>>>> that it advocates for disclosure only following a court order. It >>>>>>> doesn’t. >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: Kathy Kleiman [mailto:kathy@kathykleiman.com >>>>>>> <mailto:kathy@kathykleiman.com> ] >>>>>>> Sent: Wednesday, August 26, 2015 10:59 PM >>>>>>> To: Williams, Todd <Todd.Williams(a)turner.com> >>>>>>> <mailto:Todd.Williams@turner.com> ; gnso-ppsai3(a)icann.org >>>>>>> <mailto:gnso-ppsai3@icann.org> >>>>>>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview >>>>>>> >>>>>>> >>>>>>> >>>>>>> Hi Todd, >>>>>>> Tx you for the close read. In the weeks since the original draft, I >>>>>>> think the discussion has evolved from a multipart one - such as the 5 >>>>>>> categories originally created in Section III -- to a more binary one: do >>>>>>> commenters support a system such as Annex E or do they want court order >>>>>>> prior to the reveal of the data? >>>>>>> >>>>>>> With apologies, I don't understand the differentiation into Categories >>>>>>> 2, 3 and 4 in Section III. Some parties may have mentioned UDRP, and >>>>>>> others not, but that does not take away from the totality of the >>>>>>> commenters who want court orders -- or want court orders for certain >>>>>>> categories of requests such as privacy requests to p/p providers from >>>>>>> third parties, such as intellectual property requests. To divide up >>>>>>> these comments really dilutes the argument, I think, as these commenters >>>>>>> favor court order for the key issue we are evaluating. >>>>>>> >>>>>>> So I would recommend keeping Google, Endurance, Wheelhouse, ICA and Easy >>>>>>> DNS together in Category 2. >>>>>>> >>>>>>> The ISPCP Constituency Comments call for an "independent adjudicator" to >>>>>>> "determine the merits of their ("intellectual property rights holders") >>>>>>> claims. I thought that was pretty clear reference to a judge or >>>>>>> magistrate, but if you see it differently, please let me know. >>>>>>> >>>>>>> Re Blacknight, on the issue of Annex E or court order, the comments >>>>>>> appear to come down squarely for court orders. For LEA, it recommends a >>>>>>> different approach, but there is no reference to Annex E, only "a >>>>>>> request from law enforcement, Irish consumer protection agencies or a >>>>>>> court order with jurisdiction over us." The intellectual property >>>>>>> requests falls into the final category -- court order -- and as such, >>>>>>> this comment would be properly listed here. >>>>>>> >>>>>>> Re: APC, Alliance for Progressive Communications, you are right that I >>>>>>> missed a step in putting this comment forward. The question this quote >>>>>>> addresses, and it is a valuable one, is court orders and jurisdiction -- >>>>>>> from which jurisdiction are court orders are valid? Here APC provides >>>>>>> us with unique insight, very worth passing onto the WG: that release of >>>>>>> domain name data in some countries has and will continue to result in >>>>>>> arrest, prosecution, conviction, etc. of "domain owners" who are >>>>>>> "exercising activism" online. This is a very tough issue that we >>>>>>> discussed in the WG, and APC is on the ground in Africa and near the >>>>>>> Middle East to see abuses first hand. >>>>>>> >>>>>>> As the WG explores the issue of court orders, the next question is: from >>>>>>> what jurisdiction should/must p/p provider accept a court order? The APC >>>>>>> comment reminds us that what is clearly legal in one country is >>>>>>> punishable in another -- and that jurisdictional issues for court orders >>>>>>> are a key part of what we (the WG) have to keep in mind. If you would >>>>>>> like to create a introductory paragraph, or new section, for this type >>>>>>> of discussion, I would certainly welcome it! >>>>>>> >>>>>>> Best, >>>>>>> Kathy >>>>>>> : >>>>>>> >>>>>>> Thanks Kathy. One minor formatting suggestion: >>>>>>> >>>>>>> >>>>>>> >>>>>>> I think the spectrum that we outline on page 5 (Categories 1-4) is >>>>>>> useful, because not all of these comments are advocating for the same >>>>>>> thing. Yet the quotes that we’ve added from the comments are all >>>>>>> included under Category 2, which is somewhat confusing. I would suggest >>>>>>> that we move: >>>>>>> >>>>>>> >>>>>>> >>>>>>> · The quotes from the comments from Google, Endurance >>>>>>> International Group, and Jeff Wheelhouse to the paragraph on Category 3. >>>>>>> >>>>>>> · The quotes from the comments from ICA and Easy DNS to the >>>>>>> paragraph on Category 4. >>>>>>> >>>>>>> >>>>>>> >>>>>>> Also, I saw that you added quotes from the comments from ISPCPC, >>>>>>> Blacknight, and the Association for Progressive Communications, even >>>>>>> though those weren’t in our initial summary and don’t specifically >>>>>>> mention Annex E. My thoughts on each: >>>>>>> >>>>>>> >>>>>>> >>>>>>> · Here’s the full ISPCPC quote, from a section titled “Regarding >>>>>>> LEA definitions & differentiations”: “While we respect the desire to >>>>>>> utilize the official ICANN definition of Law Enforcement Agent (LEA), we >>>>>>> acknowledge that intellectual property rights holders and private anti >>>>>>> abuse organizations should be treated as complainants and not >>>>>>> indisputably wronged parties, and accordingly an independent adjudicator >>>>>>> should determine the merits of their claim before rights that users >>>>>>> would otherwise have are abrogated by reason of those lawyers' claims.” >>>>>>> To be honest, I’m not really sure what to make of that (especially given >>>>>>> that it is included under a heading about LEA definitions). But I’m not >>>>>>> sure that we can assume that it means disclosure only following a court >>>>>>> order. Why would Annex E as currently drafted not satisfy the standard >>>>>>> of “an independent adjudicator should determine the merits of their >>>>>>> claim”? >>>>>>> >>>>>>> · I also don’t understand why we would think that the Blacknight >>>>>>> quote is incompatible with Annex E. All it says is that “any policy >>>>>>> that would require us to divulge our client’s information in the absence >>>>>>> of either a request from law enforcement, Irish consumer protection >>>>>>> agencies or a court order with jurisdiction over us is incompatible with >>>>>>> Irish law.” But Annex E as currently drafted doesn’t require Blacknight >>>>>>> to divulge its client’s information. Rather, it gives Blacknight the >>>>>>> discretion to make that decision; all it requires is that Blacknight >>>>>>> provide the complainant with its reasoning if it chooses to refuse. >>>>>>> >>>>>>> · I don’t understand why we’d include a quote from the APC comment >>>>>>> in this section, given that it does not mention Annex E, and that it >>>>>>> expressly endorsed the NCSG comment (see: >>>>>>> http://forum.icann.org/lists/comments-ppsai-initial-05may15/pdfwOfjgYV0i >>>>>>> 9.pdf >>>>>>> <http://forum.icann.org/lists/comments-ppsai-initial-05may15/pdfwOfjgYV0 >>>>>>> i9.pdf> ), which we analyze in the previous section that supports the >>>>>>> premise of Annex E. >>>>>>> >>>>>>> >>>>>>> >>>>>>> From:gnso-ppsai3-bounces@icann.org >>>>>>> <mailto:gnso-ppsai3-bounces@icann.org> >>>>>>> [mailto:gnso-ppsai3-bounces@icann.org >>>>>>> <mailto:gnso-ppsai3-bounces@icann.org> ] On Behalf Of Kathy Kleiman >>>>>>> Sent: Wednesday, August 26, 2015 5:17 PM >>>>>>> To: gnso-ppsai3(a)icann.org <mailto:gnso-ppsai3@icann.org> >>>>>>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview >>>>>>> >>>>>>> >>>>>>> >>>>>>> Hi All, >>>>>>> Tx to Darcy for the Overview work. I've taken her draft and added to it >>>>>>> my work on Section III as promised on the last call. I added more quotes >>>>>>> from commenters seeking court orders and the use of existing legal due >>>>>>> process mechanisms prior to disclosure of proxied data. There was a wide >>>>>>> array of comments on this issue, including from ISPs, individuals, >>>>>>> organizations, and companies. >>>>>>> >>>>>>> I used Darcy's version as the base. Both her edits (Overview) and my >>>>>>> edits (Section III) are shown in "track changes." >>>>>>> >>>>>>> Best, >>>>>>> Kathy >>>>>>> >>>>>>> : >>>>>>> >>>>>>> Hi, all! >>>>>>> >>>>>>> In follow up to our call earlier this week, attached is an updated >>>>>>> Sub-team 3 analysis draft with the overview added at the beginning. I >>>>>>> redlined my changes so you can clearly see what I’ve done. I hope you >>>>>>> find that I present a clear and accurate overview. >>>>>>> >>>>>>> >>>>>>> >>>>>>> I also made some minor revisions to Section V (“Comments that did not >>>>>>> fit neatly into any of the above categories”) that I realized after >>>>>>> submitting my original draft of that section made a bit more sense. >>>>>>> Again, I’ve redlined the changes so you can easily see what changed. >>>>>>> >>>>>>> >>>>>>> >>>>>>> Please let me know if there are any questions. >>>>>>> >>>>>>> >>>>>>> >>>>>>> Thanks, >>>>>>> >>>>>>> Darcy >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> _______________________________________________ >>>>>>> Gnso-ppsai3 mailing list >>>>>>> Gnso-ppsai3(a)icann.org <mailto:Gnso-ppsai3@icann.org> >>>>>>> https://mm.icann.org/mailman/listinfo/gnso-ppsai3 >>>>>>> <https://mm.icann.org/mailman/listinfo/gnso-ppsai3> >>>>>>> >>>>>>> >>>>>>> >>>>>> >>>>>> >>>> <Revised Illustrative Disclosure Framework for Intellectual Property >>>> Righ...[2][1].docx>_______________________________________________ >>>> Gnso-ppsai3 mailing list >>>> Gnso-ppsai3(a)icann.org <mailto:Gnso-ppsai3@icann.org> >>>> https://mm.icann.org/mailman/listinfo/gnso-ppsai3 >>>> <https://mm.icann.org/mailman/listinfo/gnso-ppsai3> >>>> >>> _______________________________________________ >>> Gnso-ppsai3 mailing list >>> Gnso-ppsai3(a)icann.org >>> https://mm.icann.org/mailman/listinfo/gnso-ppsai3 >> >

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Re: [Gnso-ppsai3] Additional Comments for Sub Team Consideration
by Sara Bockey Sept. 15, 2015

Sept. 15, 2015

Hi all, As promised, attached is a redline of my input to the proposed changes Todd drafted. Todd was pretty thorough and had included several revisions I had in mind based on the comments so my edits are limited to a few comments and additions. Best regards, Sara From: <gnso-ppsai3-bounces(a)icann.org<mailto:gnso-ppsai3-bounces@icann.org>> on behalf of "Williams, Todd" Date: Wednesday, September 2, 2015 at 2:58 PM To: Mary Wong, "gnso-ppsai3(a)icann.org<mailto:gnso-ppsai3@icann.org>" Subject: Re: [Gnso-ppsai3] Additional Comments for Sub Team Consideration All: As promised on our call, attached is a redline of the Draft Disclosure Framework, with annotations noting the source of each proposed change. Several notes as you review: · I know that we’ve debated whether “verifiable evidence” means more than what is currently in Sections II(A), (B), and (C). You’ll see that I’ve added the exact wording from the savedomainprivacy.org petition – “verifiable evidence of wrongdoing” – to those sections. I think that is a good fit, as of right now. But for Sara, Kathy, and the others on our sub-team who have argued that “verifiable evidence” means something higher – let us know how you would further edit Sections II(A), (B), and (C) to meet whatever “higher” standard you have in mind. · You’ll note that I briefly added a reference to the comment from Com Laude (which I think we had omitted from our summary). And that I did not reference the comment from Aaron Myers (which we’ve referenced in our summary, but which doesn’t really offer any edits to the Disclosure Framework). Otherwise I think I’ve covered everything that we reviewed in terms of edits to the Disclosure Framework – though let me know if anybody sees anything I’ve missed. · Just to be clear for the record: the attached is a revised Disclosure Framework that illustrates and attempts to account for all of the proposed edits that we received from the public comments, for the larger Working Group’s reference. But it is not how I would have edited the Disclosure Framework. In fact, I’ll reserve the right to argue against some of these proposed edits, once we get into the larger WG discussion. Just wanted to make that clear so that nobody thinks these edits are mine (since I’m the one who drafted the document). Thanks. Todd. From: gnso-ppsai3-bounces(a)icann.org<mailto:gnso-ppsai3-bounces@icann.org> [mailto:gnso-ppsai3-bounces@icann.org] On Behalf Of Mary Wong Sent: Wednesday, September 02, 2015 6:59 AM To: gnso-ppsai3(a)icann.org<mailto:gnso-ppsai3@icann.org> Subject: [Gnso-ppsai3] Additional Comments for Sub Team Consideration Hello again everyone, As you look through the proposed revised summary document (below), you may also wish to consider whether some of the additional comments that were included in Part 4 of the overall WG Public Comment Review Tool might be useful such that additional notes or recommendations can be made, or existing language amended. For your convenience I’ve extracted ten such comments which, while not sent in as specific responses to the Preliminary Recommendations and Annex E that this Sub Team is analysing, nonetheless seem relevant generally. I attach these ten comments in tabular form to this email, and welcome the Sub Team’s discussion and comments on whether any of them ought to be considered as well as your thoughts on the summary document. As the Sub Team is due to report back to the full WG next Tuesday, please let me know also if you think a call before then amongst the Sub Team members might be needed. 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<mailto:mary.wong@icann.org> From: Mary Wong <mary.wong(a)icann.org<mailto:mary.wong@icann.org>> Date: Monday, August 31, 2015 at 15:46 To: "gnso-ppsai3(a)icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3(a)icann.org<mailto:gnso-ppsai3@icann.org>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview Hello everyone, in an attempt to facilitate further dialogue and, hopefully, consensus on a way forward on this issue, I’ve taken the liberty of amending Kathy’s document to take into account Holly’s comments as well as to attempt to place certain comments (e.g. the ICA’s, EasyDNS’) more specifically within a particular category. I attach both a redlined and clean copy of this latest updated version (with the clean copy including yellow highlighted portions where the most significant language changes are suggested). I have not yet broken the comments down further into the registrant/provider distinction that Todd noted, but can of course do so if this is viewed as useful. Please note that this is not a staff position that is being suggested, but merely an attempt to document where the Sub Team’s discussion seems to be at the moment. I hope this is helpful. 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<mailto:mary.wong@icann.org> From: <gnso-ppsai3-bounces(a)icann.org<mailto:gnso-ppsai3-bounces@icann.org>> on behalf of "Williams, Todd" <Todd.Williams(a)turner.com<mailto:Todd.Williams@turner.com>> Date: Friday, August 28, 2015 at 22:40 To: Kathy Kleiman <kathy(a)kathykleiman.com<mailto:kathy@kathykleiman.com>>, "gnso-ppsai3(a)icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3(a)icann.org<mailto:gnso-ppsai3@icann.org>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview Thanks Kathy. I both agree and disagree with what you’ve said below. I strongly agree that “the key is the quotes that have come out of the comments.” I’ve said repeatedly that our job as a sub-team is not to advocate, but to simply present the comments to the WG in as accurate and objective a way as possible. To the extent that we then want to advocate for our own positions as part of the larger WG, we can do so. Moreover, part of the reason why I feel so strongly that “the key is the quotes” is that I think we have to take the comments at face value, and then debate as WG whether we can reach consensus on what they actually say – not on what we want them to say. That’s why I felt so strongly that “verifiable evidence” should not be reinterpreted to mean a court order. It is also what animated my email exchange with Stephanie in the larger WG (attached). And if we are in fact faithful to what the comments actually say, then it is a mistake to lump all of the “court order” comments into one monolithic group. I’ve given some examples of substantive differences below. But let me give another one: if we look at what they actually say, the “court order” comments are very much divided based on whether the comment came from an individual registrant or from a registrar/provider. Which of course makes sense: a registrant will tend to look at these issues very differently than a provider. Specifically, as you correctly note in our draft, the vast majority of comments (11,000+) from individuals/registrants said that “Everyone deserves the right to privacy” and that “No one’s personal information should be revealed without a court order, regardless of whether the request comes from a private individual or law enforcement agency.” And of course, we can understand why registrants would argue that their right to privacy is inviolate, and that it should never be abrogated unless a court blesses it. But note that the registrar/provider comments in the “court order” group do NOT say the same thing. Rather, they are focused on retaining their discretion as to when to disclose or publish, and do not want an accreditation standard that requires them to do so absent a court order. Hence my point about the word “require” in the Blacknight comment. See also the Key Systems comment: “Disclosure or publication should never be the automatic result of a process, but rather remain an option of the provider.” And others. So one key distinction b/w the registrant/individual comments and the registrar/provider comments is that the registrant comments do not want disclosure or publication EVER unless following a court order, while the provider comments want a court order first if SOMEBODY ELSE wants them to disclose or publish, but not if THEY want to disclose or publish. And we can understand why, given how many provider Terms of Service include language that gives them discretion to basically turn off a P/P Service whenever they want (for example, if the registrant stops paying them), without any kind of process beforehand (due process or otherwise). See below (among many others): · Blacknight: https://www.blacknight.com/acceptable-usage.html. · Whoisprivacy.com, Ltd.: http://www.whoisprivacyservices.com.au/terms.htm. · EuroDNS S.A.: https://www.eurodns.com/terms-and-conditions/whois-privacy. · 1&1 Internet, Inc.: http://www.1and1.com/TcPdr?__lf=Static. · Domain.com, LLC: http://www.domain.com/legal/legal_domain.bml#domain-privacy-service. · DomainIt, Inc.: https://www.domainit.com/terms.html. · Moniker Privacy Services, LLC: http://www.moniker.com/legal/registration-agreement. So we can understand why providers would not want an accreditation regime that requires them to get a court order before they turn off a registrant’s privacy service (and to rewrite their Terms of Service accordingly). In fact, Volker has already admitted – both on the email list (see attached) and on our weekly calls (see transcript of 8-11-15 call) – that such an accreditation requirement would have such a “severe impact” on the economic realities of providers (in other words, would cost them so much money), that they could never agree to such a requirement. But of course, if I’m an individual registrant concerned about my privacy and due process, then I could care less about the “economic realities” of providers. My point is only that we can’t gloss over that important distinction (and others) by lumping all of the “court order” comments together as if they were coming from the same place and advocating for the same thing. They’re not. From: Kathy Kleiman [mailto:kathy@kathykleiman.com] Sent: Friday, August 28, 2015 8:44 AM To: Williams, Todd <Todd.Williams(a)turner.com<mailto:Todd.Williams@turner.com>>; gnso-ppsai3(a)icann.org<mailto:gnso-ppsai3@icann.org> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview Hi Todd, The entire WG is now looking to our comments to show what supports Annex E (deemed generally to be a lower standard than court order) and Court Order (deemed to be a much higher standard than Annex E). What we are talking about is the floor, not the ceiling, right, for accreditation? Namely, what is the minimum requirement for disclosure of proxied data? I see it as really quite binary - up or down (Annex E or court order for private requests to p/p providers) - but I can understand if the subteam thinks differently. What I think is key is the quotes that have come out of the comments. Provided we keep the quotes, I'm good.I can rework, but not until end of weekend or early next week. Best, Kathy : Thanks Kathy. · When you say that “in the weeks since the original draft, I think the discussion has evolved from a multipart one . . . to a binary one” – what are you basing that on? Can you point to any transcripts or emails? I certainly don’t remember being part of those discussions. · Moreover, had I been involved in those discussions, I would have objected, because I think that lumping the comments together in the way that you have, and ignoring the categories that our sub-team had already agreed upon, does a disservice to the nuance of the comments from Google, ICA, EasyDNS, and the like. For example, a UDRP panel is not a court. I think that is an important distinction between Categories 2 and 3. And the fact that the ICA and EasyDNS comments would allow for “some exceptions for cases of abuse” is another important distinction that the broader WG ought to know about. I’m fine if we want to include some sort of introductory sentence saying that __ comments opposed the basic premise of Annex E (which we do). But to then argue that those comments are monolithic, or that they all oppose the premise of Annex E in the same way, is not accurate. · I simply understood the ISPCP comment to mean that allegations of infringement should not always be automatically taken as true (“not indisputably wronged parties”), and that some independent adjudicator (meaning, somebody other than the IP owner who is making the allegation) should evaluate the merits of those claims. Annex E as currently drafted provides for that. But I also don’t think that you or I should necessarily be the ones to decide this argument. Why can’t we just say that we weren’t quite sure what to do with this one (as was true with some others), and take it to the larger WG for their consideration. · I think you’re missing my point on Blacknight. My point is that the key word is “require.” As I mentioned below, nothing in Annex E “requires” Blacknight to disclose (merely to give reasons if they refuse to disclose). So I don’t see anything in their comment that is inconsistent with Annex E. · On the APC comment: I don’t disagree with you that the comment has important value for the WG. But that’s not the same thing as saying that it advocates for disclosure only following a court order. It doesn’t. From: Kathy Kleiman [mailto:kathy@kathykleiman.com] Sent: Wednesday, August 26, 2015 10:59 PM To: Williams, Todd <Todd.Williams(a)turner.com><mailto:Todd.Williams@turner.com>; gnso-ppsai3(a)icann.org<mailto:gnso-ppsai3@icann.org> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview Hi Todd, Tx you for the close read. In the weeks since the original draft, I think the discussion has evolved from a multipart one - such as the 5 categories originally created in Section III -- to a more binary one: do commenters support a system such as Annex E or do they want court order prior to the reveal of the data? With apologies, I don't understand the differentiation into Categories 2, 3 and 4 in Section III. Some parties may have mentioned UDRP, and others not, but that does not take away from the totality of the commenters who want court orders -- or want court orders for certain categories of requests such as privacy requests to p/p providers from third parties, such as intellectual property requests. To divide up these comments really dilutes the argument, I think, as these commenters favor court order for the key issue we are evaluating. So I would recommend keeping Google, Endurance, Wheelhouse, ICA and Easy DNS together in Category 2. The ISPCP Constituency Comments call for an "independent adjudicator" to "determine the merits of their ("intellectual property rights holders") claims. I thought that was pretty clear reference to a judge or magistrate, but if you see it differently, please let me know. Re Blacknight, on the issue of Annex E or court order, the comments appear to come down squarely for court orders. For LEA, it recommends a different approach, but there is no reference to Annex E, only "a request from law enforcement, Irish consumer protection agencies or a court order with jurisdiction over us." The intellectual property requests falls into the final category -- court order -- and as such, this comment would be properly listed here. Re: APC, Alliance for Progressive Communications, you are right that I missed a step in putting this comment forward. The question this quote addresses, and it is a valuable one, is court orders and jurisdiction -- from which jurisdiction are court orders are valid? Here APC provides us with unique insight, very worth passing onto the WG: that release of domain name data in some countries has and will continue to result in arrest, prosecution, conviction, etc. of "domain owners" who are "exercising activism" online. This is a very tough issue that we discussed in the WG, and APC is on the ground in Africa and near the Middle East to see abuses first hand. As the WG explores the issue of court orders, the next question is: from what jurisdiction should/must p/p provider accept a court order? The APC comment reminds us that what is clearly legal in one country is punishable in another -- and that jurisdictional issues for court orders are a key part of what we (the WG) have to keep in mind. If you would like to create a introductory paragraph, or new section, for this type of discussion, I would certainly welcome it! Best, Kathy : Thanks Kathy. One minor formatting suggestion: I think the spectrum that we outline on page 5 (Categories 1-4) is useful, because not all of these comments are advocating for the same thing. Yet the quotes that we’ve added from the comments are all included under Category 2, which is somewhat confusing. I would suggest that we move: · The quotes from the comments from Google, Endurance International Group, and Jeff Wheelhouse to the paragraph on Category 3. · The quotes from the comments from ICA and Easy DNS to the paragraph on Category 4. Also, I saw that you added quotes from the comments from ISPCPC, Blacknight, and the Association for Progressive Communications, even though those weren’t in our initial summary and don’t specifically mention Annex E. My thoughts on each: · Here’s the full ISPCPC quote, from a section titled “Regarding LEA definitions & differentiations”: “While we respect the desire to utilize the official ICANN definition of Law Enforcement Agent (LEA), we acknowledge that intellectual property rights holders and private anti abuse organizations should be treated as complainants and not indisputably wronged parties, and accordingly an independent adjudicator should determine the merits of their claim before rights that users would otherwise have are abrogated by reason of those lawyers' claims.” To be honest, I’m not really sure what to make of that (especially given that it is included under a heading about LEA definitions). But I’m not sure that we can assume that it means disclosure only following a court order. Why would Annex E as currently drafted not satisfy the standard of “an independent adjudicator should determine the merits of their claim”? · I also don’t understand why we would think that the Blacknight quote is incompatible with Annex E. All it says is that “any policy that would require us to divulge our client’s information in the absence of either a request from law enforcement, Irish consumer protection agencies or a court order with jurisdiction over us is incompatible with Irish law.” But Annex E as currently drafted doesn’t require Blacknight to divulge its client’s information. Rather, it gives Blacknight the discretion to make that decision; all it requires is that Blacknight provide the complainant with its reasoning if it chooses to refuse. · I don’t understand why we’d include a quote from the APC comment in this section, given that it does not mention Annex E, and that it expressly endorsed the NCSG comment (see: http://forum.icann.org/lists/comments-ppsai-initial-05may15/pdfwOfjgYV0i9.p…) which we analyze in the previous section that supports the premise of Annex E. From:gnso-ppsai3-bounces@icann.org<mailto:gnso-ppsai3-bounces@icann.org> [mailto:gnso-ppsai3-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Wednesday, August 26, 2015 5:17 PM To: gnso-ppsai3(a)icann.org<mailto:gnso-ppsai3@icann.org> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview Hi All, Tx to Darcy for the Overview work. I've taken her draft and added to it my work on Section III as promised on the last call. I added more quotes from commenters seeking court orders and the use of existing legal due process mechanisms prior to disclosure of proxied data. There was a wide array of comments on this issue, including from ISPs, individuals, organizations, and companies. I used Darcy's version as the base. Both her edits (Overview) and my edits (Section III) are shown in "track changes." Best, Kathy : Hi, all! In follow up to our call earlier this week, attached is an updated Sub-team 3 analysis draft with the overview added at the beginning. I redlined my changes so you can clearly see what I’ve done. I hope you find that I present a clear and accurate overview. I also made some minor revisions to Section V (“Comments that did not fit neatly into any of the above categories”) that I realized after submitting my original draft of that section made a bit more sense. Again, I’ve redlined the changes so you can easily see what changed. Please let me know if there are any questions. Thanks, Darcy _______________________________________________ Gnso-ppsai3 mailing list Gnso-ppsai3(a)icann.org<mailto:Gnso-ppsai3@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai3

5 15

Revised Subteam 3 Summary with Overview
by Darcy Southwell Sept. 8, 2015

Sept. 8, 2015

Hi, all! In follow up to our call earlier this week, attached is an updated Sub-team 3 analysis draft with the overview added at the beginning. I redlined my changes so you can clearly see what I¹ve done. I hope you find that I present a clear and accurate overview. I also made some minor revisions to Section V (³Comments that did not fit neatly into any of the above categories²) that I realized after submitting my original draft of that section made a bit more sense. Again, I¹ve redlined the changes so you can easily see what changed. Please let me know if there are any questions. Thanks, Darcy

5 15

Note for Sub Team 3 report to WG on Tuesday
by Mary Wong Sept. 5, 2015

Sept. 5, 2015

Dear all, thanks for all the updates, especially to Todd and Sara for revising and commenting on the Illustrative Framework! As mentioned previously, I will go ahead and send the two documents the text summary and the updated Illustrative Framework to the full WG, with the caveat that these have not been fully discussed by the Sub Team, nor do all Sub Team members necessarily agree with all the revisions. Please note two additional points, however: (1) you may still wish to review the additional ten comments I extracted from Part 4 of the WG¹s Public Comment Review Tool (as explained below, in the email dated 2 September); and (2) as you may have seen from the updated report circulated by Sub Team 1, they are suggesting that this Sub Team 3 consider the comment from Blacknight to look at ccTLD practices around disclosure. As such, it may be helpful for us to think about doing a call following the WG meeting on Tuesday. 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: Sara Bockey <sbockey(a)godaddy.com> Date: Saturday, September 5, 2015 at 04:39 To: "Williams, Todd" <Todd.Williams(a)turner.com>, Mary Wong <mary.wong(a)icann.org>, "gnso-ppsai3(a)icann.org" <gnso-ppsai3(a)icann.org> Cc: Sara Bockey <sbockey(a)godaddy.com> Subject: Re: [Gnso-ppsai3] Additional Comments for Sub Team Consideration > Hi all, > > As promised, attached is a redline of my input to the proposed changes Todd > drafted. Todd was pretty thorough and had included several revisions I had in > mind based on the comments so my edits are limited to a few comments and > additions. > > Best regards, > > Sara > > > From: <gnso-ppsai3-bounces(a)icann.org> on behalf of "Williams, Todd" > Date: Wednesday, September 2, 2015 at 2:58 PM > To: Mary Wong, "gnso-ppsai3(a)icann.org" > Subject: Re: [Gnso-ppsai3] Additional Comments for Sub Team Consideration > > All: > > As promised on our call, attached is a redline of the Draft Disclosure > Framework, with annotations noting the source of each proposed change. > Several notes as you review: > > · I know that we¹ve debated whether ³verifiable evidence² means more > than what is currently in Sections II(A), (B), and (C). You¹ll see that I¹ve > added the exact wording from the savedomainprivacy.org petition ³verifiable > evidence of wrongdoing² to those sections. I think that is a good fit, as > of right now. But for Sara, Kathy, and the others on our sub-team who have > argued that ³verifiable evidence² means something higher let us know how you > would further edit Sections II(A), (B), and (C) to meet whatever ³higher² > standard you have in mind. > > · You¹ll note that I briefly added a reference to the comment from Com > Laude (which I think we had omitted from our summary). And that I did not > reference the comment from Aaron Myers (which we¹ve referenced in our summary, > but which doesn¹t really offer any edits to the Disclosure Framework). > Otherwise I think I¹ve covered everything that we reviewed in terms of edits > to the Disclosure Framework though let me know if anybody sees anything I¹ve > missed. > > · Just to be clear for the record: the attached is a revised Disclosure > Framework that illustrates and attempts to account for all of the proposed > edits that we received from the public comments, for the larger Working > Group¹s reference. But it is not how I would have edited the Disclosure > Framework. In fact, I¹ll reserve the right to argue against some of these > proposed edits, once we get into the larger WG discussion. Just wanted to > make that clear so that nobody thinks these edits are mine (since I¹m the one > who drafted the document). > > > Thanks. > > Todd. > > > From:gnso-ppsai3-bounces@icann.org [mailto:gnso-ppsai3-bounces@icann.org] On > Behalf Of Mary Wong > Sent: Wednesday, September 02, 2015 6:59 AM > To: gnso-ppsai3(a)icann.org > Subject: [Gnso-ppsai3] Additional Comments for Sub Team Consideration > > > Hello again everyone, > > > > As you look through the proposed revised summary document (below), you may > also wish to consider whether some of the additional comments that were > included in Part 4 of the overall WG Public Comment Review Tool might be > useful such that additional notes or recommendations can be made, or existing > language amended. For your convenience I¹ve extracted ten such comments which, > while not sent in as specific responses to the Preliminary Recommendations and > Annex E that this Sub Team is analysing, nonetheless seem relevant generally. > > > > I attach these ten comments in tabular form to this email, and welcome the Sub > Team¹s discussion and comments on whether any of them ought to be considered > as well as your thoughts on the summary document. > > > > As the Sub Team is due to report back to the full WG next Tuesday, please let > me know also if you think a call before then amongst the Sub Team members > might be needed. > > > > 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: Mary Wong <mary.wong(a)icann.org> > Date: Monday, August 31, 2015 at 15:46 > To: "gnso-ppsai3(a)icann.org" <gnso-ppsai3(a)icann.org> > Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview > > >> >> Hello everyone, in an attempt to facilitate further dialogue and, hopefully, >> consensus on a way forward on this issue, I¹ve taken the liberty of amending >> Kathy¹s document to take into account Holly¹s comments as well as to attempt >> to place certain comments (e.g. the ICA¹s, EasyDNS¹) more specifically within >> a particular category. I attach both a redlined and clean copy of this latest >> updated version (with the clean copy including yellow highlighted portions >> where the most significant language changes are suggested). I have not yet >> broken the comments down further into the registrant/provider distinction >> that Todd noted, but can of course do so if this is viewed as useful. >> >> >> Please note that this is not a staff position that is being suggested, but >> merely an attempt to document where the Sub Team¹s discussion seems to be at >> the moment. I hope this is helpful. >> >> >> >> 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: <gnso-ppsai3-bounces(a)icann.org> on behalf of "Williams, Todd" >> <Todd.Williams(a)turner.com> >> Date: Friday, August 28, 2015 at 22:40 >> To: Kathy Kleiman <kathy(a)kathykleiman.com>, "gnso-ppsai3(a)icann.org" >> <gnso-ppsai3(a)icann.org> >> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview >> >> >>> >>> Thanks Kathy. I both agree and disagree with what you¹ve said below. >>> >>> I strongly agree that ³the key is the quotes that have come out of the >>> comments.² I¹ve said repeatedly that our job as a sub-team is not to >>> advocate, but to simply present the comments to the WG in as accurate and >>> objective a way as possible. To the extent that we then want to advocate >>> for our own positions as part of the larger WG, we can do so. Moreover, >>> part of the reason why I feel so strongly that ³the key is the quotes² is >>> that I think we have to take the comments at face value, and then debate as >>> WG whether we can reach consensus on what they actually say not on what we >>> want them to say. That¹s why I felt so strongly that ³verifiable evidence² >>> should not be reinterpreted to mean a court order. It is also what animated >>> my email exchange with Stephanie in the larger WG (attached). >>> >>> And if we are in fact faithful to what the comments actually say, then it is >>> a mistake to lump all of the ³court order² comments into one monolithic >>> group. I¹ve given some examples of substantive differences below. But let >>> me give another one: if we look at what they actually say, the ³court order² >>> comments are very much divided based on whether the comment came from an >>> individual registrant or from a registrar/provider. Which of course makes >>> sense: a registrant will tend to look at these issues very differently than >>> a provider. Specifically, as you correctly note in our draft, the vast >>> majority of comments (11,000+) from individuals/registrants said that >>> ³Everyone deserves the right to privacy² and that ³No one¹s personal >>> information should be revealed without a court order, regardless of whether >>> the request comes from a private individual or law enforcement agency.² And >>> of course, we can understand why registrants would argue that their right to >>> privacy is inviolate, and that it should never be abrogated unless a court >>> blesses it. >>> >>> But note that the registrar/provider comments in the ³court order² group do >>> NOT say the same thing. Rather, they are focused on retaining their >>> discretion as to when to disclose or publish, and do not want an >>> accreditation standard that requires them to do so absent a court order. >>> Hence my point about the word ³require² in the Blacknight comment. See also >>> the Key Systems comment: ³Disclosure or publication should never be the >>> automatic result of a process, but rather remain an option of the provider.² >>> And others. So one key distinction b/w the registrant/individual comments >>> and the registrar/provider comments is that the registrant comments do not >>> want disclosure or publication EVER unless following a court order, while >>> the provider comments want a court order first if SOMEBODY ELSE wants them >>> to disclose or publish, but not if THEY want to disclose or publish. And we >>> can understand why, given how many provider Terms of Service include >>> language that gives them discretion to basically turn off a P/P Service >>> whenever they want (for example, if the registrant stops paying them), >>> without any kind of process beforehand (due process or otherwise). See >>> below (among many others): >>> >>> · Blacknight: https://www.blacknight.com/acceptable-usage.html. >>> >>> · Whoisprivacy.com, Ltd.: >>> http://www.whoisprivacyservices.com.au/terms.htm. >>> >>> · EuroDNS S.A.: >>> https://www.eurodns.com/terms-and-conditions/whois-privacy. >>> >>> · 1&1 Internet, Inc.: http://www.1and1.com/TcPdr?__lf=Static. >>> >>> · Domain.com, LLC: >>> http://www.domain.com/legal/legal_domain.bml#domain-privacy-service. >>> >>> · DomainIt, Inc.: https://www.domainit.com/terms.html. >>> >>> · Moniker Privacy Services, LLC: >>> http://www.moniker.com/legal/registration-agreement. >>> >>> >>> So we can understand why providers would not want an accreditation regime >>> that requires them to get a court order before they turn off a registrant¹s >>> privacy service (and to rewrite their Terms of Service accordingly). In >>> fact, Volker has already admitted both on the email list (see attached) >>> and on our weekly calls (see transcript of 8-11-15 call) that such an >>> accreditation requirement would have such a ³severe impact² on the economic >>> realities of providers (in other words, would cost them so much money), that >>> they could never agree to such a requirement. But of course, if I¹m an >>> individual registrant concerned about my privacy and due process, then I >>> could care less about the ³economic realities² of providers. >>> >>> My point is only that we can¹t gloss over that important distinction (and >>> others) by lumping all of the ³court order² comments together as if they >>> were coming from the same place and advocating for the same thing. They¹re >>> not. >>> >>> >>> From: Kathy Kleiman [mailto:kathy@kathykleiman.com] >>> Sent: Friday, August 28, 2015 8:44 AM >>> To: Williams, Todd <Todd.Williams(a)turner.com>; gnso-ppsai3(a)icann.org >>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview >>> >>> >>> Hi Todd, >>> The entire WG is now looking to our comments to show what supports Annex E >>> (deemed generally to be a lower standard than court order) and Court Order >>> (deemed to be a much higher standard than Annex E). What we are talking >>> about is the floor, not the ceiling, right, for accreditation? Namely, what >>> is the minimum requirement for disclosure of proxied data? I see it as >>> really quite binary - up or down (Annex E or court order for private >>> requests to p/p providers) - but I can understand if the subteam thinks >>> differently. >>> >>> What I think is key is the quotes that have come out of the comments. >>> Provided we keep the quotes, I'm good.I can rework, but not until end of >>> weekend or early next week. >>> >>> Best, >>> Kathy >>> : >>>> Thanks Kathy. >>>> >>>> · When you say that ³in the weeks since the original draft, I think >>>> the discussion has evolved from a multipart one . . . to a binary one² >>>> what are you basing that on? Can you point to any transcripts or emails? >>>> I certainly don¹t remember being part of those discussions. >>>> >>>> · Moreover, had I been involved in those discussions, I would have >>>> objected, because I think that lumping the comments together in the way >>>> that you have, and ignoring the categories that our sub-team had already >>>> agreed upon, does a disservice to the nuance of the comments from Google, >>>> ICA, EasyDNS, and the like. For example, a UDRP panel is not a court. I >>>> think that is an important distinction between Categories 2 and 3. And the >>>> fact that the ICA and EasyDNS comments would allow for ³some exceptions for >>>> cases of abuse² is another important distinction that the broader WG ought >>>> to know about. I¹m fine if we want to include some sort of introductory >>>> sentence saying that __ comments opposed the basic premise of Annex E >>>> (which we do). But to then argue that those comments are monolithic, or >>>> that they all oppose the premise of Annex E in the same way, is not >>>> accurate. >>>> >>>> · I simply understood the ISPCP comment to mean that allegations of >>>> infringement should not always be automatically taken as true (³not >>>> indisputably wronged parties²), and that some independent adjudicator >>>> (meaning, somebody other than the IP owner who is making the allegation) >>>> should evaluate the merits of those claims. Annex E as currently drafted >>>> provides for that. But I also don¹t think that you or I should necessarily >>>> be the ones to decide this argument. Why can¹t we just say that we weren¹t >>>> quite sure what to do with this one (as was true with some others), and >>>> take it to the larger WG for their consideration. >>>> >>>> · I think you¹re missing my point on Blacknight. My point is that the >>>> key word is ³require.² As I mentioned below, nothing in Annex E ³requires² >>>> Blacknight to disclose (merely to give reasons if they refuse to disclose). >>>> So I don¹t see anything in their comment that is inconsistent with Annex E. >>>> >>>> · On the APC comment: I don¹t disagree with you that the comment has >>>> important value for the WG. But that¹s not the same thing as saying that >>>> it advocates for disclosure only following a court order. It doesn¹t. >>>> >>>> >>>> >>>> From: Kathy Kleiman [mailto:kathy@kathykleiman.com] >>>> Sent: Wednesday, August 26, 2015 10:59 PM >>>> To: Williams, Todd <Todd.Williams(a)turner.com> >>>> <mailto:Todd.Williams@turner.com> ; gnso-ppsai3(a)icann.org >>>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview >>>> >>>> >>>> Hi Todd, >>>> Tx you for the close read. In the weeks since the original draft, I think >>>> the discussion has evolved from a multipart one - such as the 5 categories >>>> originally created in Section III -- to a more binary one: do commenters >>>> support a system such as Annex E or do they want court order prior to the >>>> reveal of the data? >>>> >>>> With apologies, I don't understand the differentiation into Categories 2, 3 >>>> and 4 in Section III. Some parties may have mentioned UDRP, and others not, >>>> but that does not take away from the totality of the commenters who want >>>> court orders -- or want court orders for certain categories of requests >>>> such as privacy requests to p/p providers from third parties, such as >>>> intellectual property requests. To divide up these comments really dilutes >>>> the argument, I think, as these commenters favor court order for the key >>>> issue we are evaluating. >>>> >>>> So I would recommend keeping Google, Endurance, Wheelhouse, ICA and Easy >>>> DNS together in Category 2. >>>> >>>> The ISPCP Constituency Comments call for an "independent adjudicator" to >>>> "determine the merits of their ("intellectual property rights holders") >>>> claims. I thought that was pretty clear reference to a judge or magistrate, >>>> but if you see it differently, please let me know. >>>> >>>> Re Blacknight, on the issue of Annex E or court order, the comments appear >>>> to come down squarely for court orders. For LEA, it recommends a different >>>> approach, but there is no reference to Annex E, only "a request from law >>>> enforcement, Irish consumer protection agencies or a court order with >>>> jurisdiction over us." The intellectual property requests falls into the >>>> final category -- court order -- and as such, this comment would be >>>> properly listed here. >>>> >>>> Re: APC, Alliance for Progressive Communications, you are right that I >>>> missed a step in putting this comment forward. The question this quote >>>> addresses, and it is a valuable one, is court orders and jurisdiction -- >>>> from which jurisdiction are court orders are valid? Here APC provides us >>>> with unique insight, very worth passing onto the WG: that release of domain >>>> name data in some countries has and will continue to result in arrest, >>>> prosecution, conviction, etc. of "domain owners" who are "exercising >>>> activism" online. This is a very tough issue that we discussed in the WG, >>>> and APC is on the ground in Africa and near the Middle East to see abuses >>>> first hand. >>>> >>>> As the WG explores the issue of court orders, the next question is: from >>>> what jurisdiction should/must p/p provider accept a court order? The APC >>>> comment reminds us that what is clearly legal in one country is punishable >>>> in another -- and that jurisdictional issues for court orders are a key >>>> part of what we (the WG) have to keep in mind. If you would like to >>>> create a introductory paragraph, or new section, for this type of >>>> discussion, I would certainly welcome it! >>>> >>>> Best, >>>> Kathy >>>> : >>>>> Thanks Kathy. One minor formatting suggestion: >>>>> >>>>> I think the spectrum that we outline on page 5 (Categories 1-4) is useful, >>>>> because not all of these comments are advocating for the same thing. Yet >>>>> the quotes that we¹ve added from the comments are all included under >>>>> Category 2, which is somewhat confusing. I would suggest that we move: >>>>> >>>>> · The quotes from the comments from Google, Endurance International >>>>> Group, and Jeff Wheelhouse to the paragraph on Category 3. >>>>> >>>>> · The quotes from the comments from ICA and Easy DNS to the paragraph >>>>> on Category 4. >>>>> >>>>> >>>>> Also, I saw that you added quotes from the comments from ISPCPC, >>>>> Blacknight, and the Association for Progressive Communications, even >>>>> though those weren¹t in our initial summary and don¹t specifically mention >>>>> Annex E. My thoughts on each: >>>>> >>>>> · Here¹s the full ISPCPC quote, from a section titled ³Regarding LEA >>>>> definitions & differentiations²: ³While we respect the desire to utilize >>>>> the official ICANN definition of Law Enforcement Agent (LEA), we >>>>> acknowledge that intellectual property rights holders and private anti >>>>> abuse organizations should be treated as complainants and not indisputably >>>>> wronged parties, and accordingly an independent adjudicator should >>>>> determine the merits of their claim before rights that users would >>>>> otherwise have are abrogated by reason of those lawyers' claims.² To be >>>>> honest, I¹m not really sure what to make of that (especially given that it >>>>> is included under a heading about LEA definitions). But I¹m not sure that >>>>> we can assume that it means disclosure only following a court order. Why >>>>> would Annex E as currently drafted not satisfy the standard of ³an >>>>> independent adjudicator should determine the merits of their claim²? >>>>> >>>>> · I also don¹t understand why we would think that the Blacknight >>>>> quote is incompatible with Annex E. All it says is that ³any policy that >>>>> would require us to divulge our client¹s information in the absence of >>>>> either a request from law enforcement, Irish consumer protection agencies >>>>> or a court order with jurisdiction over us is incompatible with Irish >>>>> law.² But Annex E as currently drafted doesn¹t require Blacknight to >>>>> divulge its client¹s information. Rather, it gives Blacknight the >>>>> discretion to make that decision; all it requires is that Blacknight >>>>> provide the complainant with its reasoning if it chooses to refuse. >>>>> >>>>> · I don¹t understand why we¹d include a quote from the APC comment in >>>>> this section, given that it does not mention Annex E, and that it >>>>> expressly endorsed the NCSG comment (see: >>>>> http://forum.icann.org/lists/comments-ppsai-initial-05may15/pdfwOfjgYV0i9. >>>>> pdf), which we analyze in the previous section that supports the premise >>>>> of Annex E. >>>>> >>>>> >>>>> >>>>> From:gnso-ppsai3-bounces@icann.org [mailto:gnso-ppsai3-bounces@icann.org] >>>>> On Behalf Of Kathy Kleiman >>>>> Sent: Wednesday, August 26, 2015 5:17 PM >>>>> To: gnso-ppsai3(a)icann.org >>>>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview >>>>> >>>>> >>>>> Hi All, >>>>> Tx to Darcy for the Overview work. I've taken her draft and added to it >>>>> my work on Section III as promised on the last call. I added more quotes >>>>> from commenters seeking court orders and the use of existing legal due >>>>> process mechanisms prior to disclosure of proxied data. There was a wide >>>>> array of comments on this issue, including from ISPs, individuals, >>>>> organizations, and companies. >>>>> >>>>> I used Darcy's version as the base. Both her edits (Overview) and my edits >>>>> (Section III) are shown in "track changes." >>>>> >>>>> Best, >>>>> Kathy >>>>> >>>>> : >>>>>> >>>>>> Hi, all! >>>>>> >>>>>> In follow up to our call earlier this week, attached is an updated >>>>>> Sub-team 3 analysis draft with the overview added at the beginning. I >>>>>> redlined my changes so you can clearly see what I¹ve done. I hope you >>>>>> find that I present a clear and accurate overview. >>>>>> >>>>>> >>>>>> >>>>>> I also made some minor revisions to Section V (³Comments that did not fit >>>>>> neatly into any of the above categories²) that I realized after >>>>>> submitting my original draft of that section made a bit more sense. >>>>>> Again, I¹ve redlined the changes so you can easily see what changed. >>>>>> >>>>>> >>>>>> >>>>>> Please let me know if there are any questions. >>>>>> >>>>>> >>>>>> >>>>>> Thanks, >>>>>> >>>>>> Darcy >>>>>> >>>>>> >>>>>> >>>>>> >>>>>> >>>>>> >>>>>> _______________________________________________ >>>>>> Gnso-ppsai3 mailing list >>>>>> Gnso-ppsai3(a)icann.org >>>>>> https://mm.icann.org/mailman/listinfo/gnso-ppsai3 >>>>> >>>> >>>

1 0

Additional Comments for Sub Team Consideration
by Mary Wong Sept. 4, 2015

Sept. 4, 2015

Hello again everyone, As you look through the proposed revised summary document (below), you may also wish to consider whether some of the additional comments that were included in Part 4 of the overall WG Public Comment Review Tool might be useful such that additional notes or recommendations can be made, or existing language amended. For your convenience I¹ve extracted ten such comments which, while not sent in as specific responses to the Preliminary Recommendations and Annex E that this Sub Team is analysing, nonetheless seem relevant generally. I attach these ten comments in tabular form to this email, and welcome the Sub Team¹s discussion and comments on whether any of them ought to be considered as well as your thoughts on the summary document. As the Sub Team is due to report back to the full WG next Tuesday, please let me know also if you think a call before then amongst the Sub Team members might be needed. 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: Mary Wong <mary.wong(a)icann.org> Date: Monday, August 31, 2015 at 15:46 To: "gnso-ppsai3(a)icann.org" <gnso-ppsai3(a)icann.org> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview > Hello everyone, in an attempt to facilitate further dialogue and, hopefully, > consensus on a way forward on this issue, I¹ve taken the liberty of amending > Kathy¹s document to take into account Holly¹s comments as well as to attempt > to place certain comments (e.g. the ICA¹s, EasyDNS¹) more specifically within > a particular category. I attach both a redlined and clean copy of this latest > updated version (with the clean copy including yellow highlighted portions > where the most significant language changes are suggested). I have not yet > broken the comments down further into the registrant/provider distinction that > Todd noted, but can of course do so if this is viewed as useful. > > Please note that this is not a staff position that is being suggested, but > merely an attempt to document where the Sub Team¹s discussion seems to be at > the moment. I hope this is helpful. > > 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: <gnso-ppsai3-bounces(a)icann.org> on behalf of "Williams, Todd" > <Todd.Williams(a)turner.com> > Date: Friday, August 28, 2015 at 22:40 > To: Kathy Kleiman <kathy(a)kathykleiman.com>, "gnso-ppsai3(a)icann.org" > <gnso-ppsai3(a)icann.org> > Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview > >> Thanks Kathy. I both agree and disagree with what you¹ve said below. >> >> I strongly agree that ³the key is the quotes that have come out of the >> comments.² I¹ve said repeatedly that our job as a sub-team is not to >> advocate, but to simply present the comments to the WG in as accurate and >> objective a way as possible. To the extent that we then want to advocate for >> our own positions as part of the larger WG, we can do so. Moreover, part of >> the reason why I feel so strongly that ³the key is the quotes² is that I >> think we have to take the comments at face value, and then debate as WG >> whether we can reach consensus on what they actually say not on what we >> want them to say. That¹s why I felt so strongly that ³verifiable evidence² >> should not be reinterpreted to mean a court order. It is also what animated >> my email exchange with Stephanie in the larger WG (attached). >> >> And if we are in fact faithful to what the comments actually say, then it is >> a mistake to lump all of the ³court order² comments into one monolithic >> group. I¹ve given some examples of substantive differences below. But let >> me give another one: if we look at what they actually say, the ³court order² >> comments are very much divided based on whether the comment came from an >> individual registrant or from a registrar/provider. Which of course makes >> sense: a registrant will tend to look at these issues very differently than a >> provider. Specifically, as you correctly note in our draft, the vast >> majority of comments (11,000+) from individuals/registrants said that >> ³Everyone deserves the right to privacy² and that ³No one¹s personal >> information should be revealed without a court order, regardless of whether >> the request comes from a private individual or law enforcement agency.² And >> of course, we can understand why registrants would argue that their right to >> privacy is inviolate, and that it should never be abrogated unless a court >> blesses it. >> >> But note that the registrar/provider comments in the ³court order² group do >> NOT say the same thing. Rather, they are focused on retaining their >> discretion as to when to disclose or publish, and do not want an >> accreditation standard that requires them to do so absent a court order. >> Hence my point about the word ³require² in the Blacknight comment. See also >> the Key Systems comment: ³Disclosure or publication should never be the >> automatic result of a process, but rather remain an option of the provider.² >> And others. So one key distinction b/w the registrant/individual comments >> and the registrar/provider comments is that the registrant comments do not >> want disclosure or publication EVER unless following a court order, while the >> provider comments want a court order first if SOMEBODY ELSE wants them to >> disclose or publish, but not if THEY want to disclose or publish. And we can >> understand why, given how many provider Terms of Service include language >> that gives them discretion to basically turn off a P/P Service whenever they >> want (for example, if the registrant stops paying them), without any kind of >> process beforehand (due process or otherwise). See below (among many >> others): >> >> · Blacknight: https://www.blacknight.com/acceptable-usage.html. >> >> · Whoisprivacy.com, Ltd.: >> http://www.whoisprivacyservices.com.au/terms.htm. >> >> · EuroDNS S.A.: >> https://www.eurodns.com/terms-and-conditions/whois-privacy. >> >> · 1&1 Internet, Inc.: http://www.1and1.com/TcPdr?__lf=Static. >> >> · Domain.com, LLC: >> http://www.domain.com/legal/legal_domain.bml#domain-privacy-service. >> >> · DomainIt, Inc.: https://www.domainit.com/terms.html. >> >> · Moniker Privacy Services, LLC: >> http://www.moniker.com/legal/registration-agreement. >> >> >> So we can understand why providers would not want an accreditation regime >> that requires them to get a court order before they turn off a registrant¹s >> privacy service (and to rewrite their Terms of Service accordingly). In >> fact, Volker has already admitted both on the email list (see attached) and >> on our weekly calls (see transcript of 8-11-15 call) that such an >> accreditation requirement would have such a ³severe impact² on the economic >> realities of providers (in other words, would cost them so much money), that >> they could never agree to such a requirement. But of course, if I¹m an >> individual registrant concerned about my privacy and due process, then I >> could care less about the ³economic realities² of providers. >> >> My point is only that we can¹t gloss over that important distinction (and >> others) by lumping all of the ³court order² comments together as if they were >> coming from the same place and advocating for the same thing. They¹re not. >> >> >> From: Kathy Kleiman [mailto:kathy@kathykleiman.com] >> Sent: Friday, August 28, 2015 8:44 AM >> To: Williams, Todd <Todd.Williams(a)turner.com>; gnso-ppsai3(a)icann.org >> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview >> >> >> Hi Todd, >> The entire WG is now looking to our comments to show what supports Annex E >> (deemed generally to be a lower standard than court order) and Court Order >> (deemed to be a much higher standard than Annex E). What we are talking about >> is the floor, not the ceiling, right, for accreditation? Namely, what is the >> minimum requirement for disclosure of proxied data? I see it as really quite >> binary - up or down (Annex E or court order for private requests to p/p >> providers) - but I can understand if the subteam thinks differently. >> >> What I think is key is the quotes that have come out of the comments. >> Provided we keep the quotes, I'm good.I can rework, but not until end of >> weekend or early next week. >> >> Best, >> Kathy >> : >>> Thanks Kathy. >>> >>> · When you say that ³in the weeks since the original draft, I think the >>> discussion has evolved from a multipart one . . . to a binary one² what >>> are you basing that on? Can you point to any transcripts or emails? I >>> certainly don¹t remember being part of those discussions. >>> >>> · Moreover, had I been involved in those discussions, I would have >>> objected, because I think that lumping the comments together in the way that >>> you have, and ignoring the categories that our sub-team had already agreed >>> upon, does a disservice to the nuance of the comments from Google, ICA, >>> EasyDNS, and the like. For example, a UDRP panel is not a court. I think >>> that is an important distinction between Categories 2 and 3. And the fact >>> that the ICA and EasyDNS comments would allow for ³some exceptions for cases >>> of abuse² is another important distinction that the broader WG ought to know >>> about. I¹m fine if we want to include some sort of introductory sentence >>> saying that __ comments opposed the basic premise of Annex E (which we do). >>> But to then argue that those comments are monolithic, or that they all >>> oppose the premise of Annex E in the same way, is not accurate. >>> >>> · I simply understood the ISPCP comment to mean that allegations of >>> infringement should not always be automatically taken as true (³not >>> indisputably wronged parties²), and that some independent adjudicator >>> (meaning, somebody other than the IP owner who is making the allegation) >>> should evaluate the merits of those claims. Annex E as currently drafted >>> provides for that. But I also don¹t think that you or I should necessarily >>> be the ones to decide this argument. Why can¹t we just say that we weren¹t >>> quite sure what to do with this one (as was true with some others), and take >>> it to the larger WG for their consideration. >>> >>> · I think you¹re missing my point on Blacknight. My point is that the >>> key word is ³require.² As I mentioned below, nothing in Annex E ³requires² >>> Blacknight to disclose (merely to give reasons if they refuse to disclose). >>> So I don¹t see anything in their comment that is inconsistent with Annex E. >>> >>> · On the APC comment: I don¹t disagree with you that the comment has >>> important value for the WG. But that¹s not the same thing as saying that it >>> advocates for disclosure only following a court order. It doesn¹t. >>> >>> >>> >>> From: Kathy Kleiman [mailto:kathy@kathykleiman.com] >>> Sent: Wednesday, August 26, 2015 10:59 PM >>> To: Williams, Todd <Todd.Williams(a)turner.com> >>> <mailto:Todd.Williams@turner.com> ; gnso-ppsai3(a)icann.org >>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview >>> >>> >>> Hi Todd, >>> Tx you for the close read. In the weeks since the original draft, I think >>> the discussion has evolved from a multipart one - such as the 5 categories >>> originally created in Section III -- to a more binary one: do commenters >>> support a system such as Annex E or do they want court order prior to the >>> reveal of the data? >>> >>> With apologies, I don't understand the differentiation into Categories 2, 3 >>> and 4 in Section III. Some parties may have mentioned UDRP, and others not, >>> but that does not take away from the totality of the commenters who want >>> court orders -- or want court orders for certain categories of requests such >>> as privacy requests to p/p providers from third parties, such as >>> intellectual property requests. To divide up these comments really dilutes >>> the argument, I think, as these commenters favor court order for the key >>> issue we are evaluating. >>> >>> So I would recommend keeping Google, Endurance, Wheelhouse, ICA and Easy DNS >>> together in Category 2. >>> >>> The ISPCP Constituency Comments call for an "independent adjudicator" to >>> "determine the merits of their ("intellectual property rights holders") >>> claims. I thought that was pretty clear reference to a judge or magistrate, >>> but if you see it differently, please let me know. >>> >>> Re Blacknight, on the issue of Annex E or court order, the comments appear >>> to come down squarely for court orders. For LEA, it recommends a different >>> approach, but there is no reference to Annex E, only "a request from law >>> enforcement, Irish consumer protection agencies or a court order with >>> jurisdiction over us." The intellectual property requests falls into the >>> final category -- court order -- and as such, this comment would be properly >>> listed here. >>> >>> Re: APC, Alliance for Progressive Communications, you are right that I >>> missed a step in putting this comment forward. The question this quote >>> addresses, and it is a valuable one, is court orders and jurisdiction -- >>> from which jurisdiction are court orders are valid? Here APC provides us >>> with unique insight, very worth passing onto the WG: that release of domain >>> name data in some countries has and will continue to result in arrest, >>> prosecution, conviction, etc. of "domain owners" who are "exercising >>> activism" online. This is a very tough issue that we discussed in the WG, >>> and APC is on the ground in Africa and near the Middle East to see abuses >>> first hand. >>> >>> As the WG explores the issue of court orders, the next question is: from >>> what jurisdiction should/must p/p provider accept a court order? The APC >>> comment reminds us that what is clearly legal in one country is punishable >>> in another -- and that jurisdictional issues for court orders are a key part >>> of what we (the WG) have to keep in mind. If you would like to create a >>> introductory paragraph, or new section, for this type of discussion, I would >>> certainly welcome it! >>> >>> Best, >>> Kathy >>> : >>>> Thanks Kathy. One minor formatting suggestion: >>>> >>>> I think the spectrum that we outline on page 5 (Categories 1-4) is useful, >>>> because not all of these comments are advocating for the same thing. Yet >>>> the quotes that we¹ve added from the comments are all included under >>>> Category 2, which is somewhat confusing. I would suggest that we move: >>>> >>>> · The quotes from the comments from Google, Endurance International >>>> Group, and Jeff Wheelhouse to the paragraph on Category 3. >>>> >>>> · The quotes from the comments from ICA and Easy DNS to the paragraph >>>> on Category 4. >>>> >>>> >>>> Also, I saw that you added quotes from the comments from ISPCPC, >>>> Blacknight, and the Association for Progressive Communications, even though >>>> those weren¹t in our initial summary and don¹t specifically mention Annex >>>> E. My thoughts on each: >>>> >>>> · Here¹s the full ISPCPC quote, from a section titled ³Regarding LEA >>>> definitions & differentiations²: ³While we respect the desire to utilize >>>> the official ICANN definition of Law Enforcement Agent (LEA), we >>>> acknowledge that intellectual property rights holders and private anti >>>> abuse organizations should be treated as complainants and not indisputably >>>> wronged parties, and accordingly an independent adjudicator should >>>> determine the merits of their claim before rights that users would >>>> otherwise have are abrogated by reason of those lawyers' claims.² To be >>>> honest, I¹m not really sure what to make of that (especially given that it >>>> is included under a heading about LEA definitions). But I¹m not sure that >>>> we can assume that it means disclosure only following a court order. Why >>>> would Annex E as currently drafted not satisfy the standard of ³an >>>> independent adjudicator should determine the merits of their claim²? >>>> >>>> · I also don¹t understand why we would think that the Blacknight quote >>>> is incompatible with Annex E. All it says is that ³any policy that would >>>> require us to divulge our client¹s information in the absence of either a >>>> request from law enforcement, Irish consumer protection agencies or a court >>>> order with jurisdiction over us is incompatible with Irish law.² But Annex >>>> E as currently drafted doesn¹t require Blacknight to divulge its client¹s >>>> information. Rather, it gives Blacknight the discretion to make that >>>> decision; all it requires is that Blacknight provide the complainant with >>>> its reasoning if it chooses to refuse. >>>> >>>> · I don¹t understand why we¹d include a quote from the APC comment in >>>> this section, given that it does not mention Annex E, and that it expressly >>>> endorsed the NCSG comment (see: >>>> http://forum.icann.org/lists/comments-ppsai-initial-05may15/pdfwOfjgYV0i9.p >>>> df), which we analyze in the previous section that supports the premise of >>>> Annex E. >>>> >>>> >>>> >>>> From:gnso-ppsai3-bounces@icann.org [mailto:gnso-ppsai3-bounces@icann.org] >>>> On Behalf Of Kathy Kleiman >>>> Sent: Wednesday, August 26, 2015 5:17 PM >>>> To: gnso-ppsai3(a)icann.org >>>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview >>>> >>>> >>>> Hi All, >>>> Tx to Darcy for the Overview work. I've taken her draft and added to it my >>>> work on Section III as promised on the last call. I added more quotes from >>>> commenters seeking court orders and the use of existing legal due process >>>> mechanisms prior to disclosure of proxied data. There was a wide array of >>>> comments on this issue, including from ISPs, individuals, organizations, >>>> and companies. >>>> >>>> I used Darcy's version as the base. Both her edits (Overview) and my edits >>>> (Section III) are shown in "track changes." >>>> >>>> Best, >>>> Kathy >>>> >>>> : >>>>> >>>>> Hi, all! >>>>> >>>>> In follow up to our call earlier this week, attached is an updated >>>>> Sub-team 3 analysis draft with the overview added at the beginning. I >>>>> redlined my changes so you can clearly see what I¹ve done. I hope you >>>>> find that I present a clear and accurate overview. >>>>> >>>>> >>>>> >>>>> I also made some minor revisions to Section V (³Comments that did not fit >>>>> neatly into any of the above categories²) that I realized after submitting >>>>> my original draft of that section made a bit more sense. Again, I¹ve >>>>> redlined the changes so you can easily see what changed. >>>>> >>>>> >>>>> >>>>> Please let me know if there are any questions. >>>>> >>>>> >>>>> >>>>> Thanks, >>>>> >>>>> Darcy >>>>> >>>>> >>>>> >>>>> >>>>> >>>>> _______________________________________________ >>>>> Gnso-ppsai3 mailing list >>>>> Gnso-ppsai3(a)icann.org >>>>> https://mm.icann.org/mailman/listinfo/gnso-ppsai3 >>>> >>> >>

2 4

Re: [Gnso-ppsai3] Additional Comments for Sub Team Consideration
by Sara Bockey Sept. 3, 2015

Sept. 3, 2015

Thanks, Todd! I’ve been drafting some proposed changes as well and will incorporate those into this draft. Best, Sara From: <gnso-ppsai3-bounces(a)icann.org<mailto:gnso-ppsai3-bounces@icann.org>> on behalf of "Williams, Todd" Date: Wednesday, September 2, 2015 at 2:58 PM To: Mary Wong, "gnso-ppsai3(a)icann.org<mailto:gnso-ppsai3@icann.org>" Subject: Re: [Gnso-ppsai3] Additional Comments for Sub Team Consideration All: As promised on our call, attached is a redline of the Draft Disclosure Framework, with annotations noting the source of each proposed change. Several notes as you review: · I know that we’ve debated whether “verifiable evidence” means more than what is currently in Sections II(A), (B), and (C). You’ll see that I’ve added the exact wording from the savedomainprivacy.org petition – “verifiable evidence of wrongdoing” – to those sections. I think that is a good fit, as of right now. But for Sara, Kathy, and the others on our sub-team who have argued that “verifiable evidence” means something higher – let us know how you would further edit Sections II(A), (B), and (C) to meet whatever “higher” standard you have in mind. · You’ll note that I briefly added a reference to the comment from Com Laude (which I think we had omitted from our summary). And that I did not reference the comment from Aaron Myers (which we’ve referenced in our summary, but which doesn’t really offer any edits to the Disclosure Framework). Otherwise I think I’ve covered everything that we reviewed in terms of edits to the Disclosure Framework – though let me know if anybody sees anything I’ve missed. · Just to be clear for the record: the attached is a revised Disclosure Framework that illustrates and attempts to account for all of the proposed edits that we received from the public comments, for the larger Working Group’s reference. But it is not how I would have edited the Disclosure Framework. In fact, I’ll reserve the right to argue against some of these proposed edits, once we get into the larger WG discussion. Just wanted to make that clear so that nobody thinks these edits are mine (since I’m the one who drafted the document). Thanks. Todd. From: gnso-ppsai3-bounces(a)icann.org<mailto:gnso-ppsai3-bounces@icann.org> [mailto:gnso-ppsai3-bounces@icann.org] On Behalf Of Mary Wong Sent: Wednesday, September 02, 2015 6:59 AM To: gnso-ppsai3(a)icann.org<mailto:gnso-ppsai3@icann.org> Subject: [Gnso-ppsai3] Additional Comments for Sub Team Consideration Hello again everyone, As you look through the proposed revised summary document (below), you may also wish to consider whether some of the additional comments that were included in Part 4 of the overall WG Public Comment Review Tool might be useful such that additional notes or recommendations can be made, or existing language amended. For your convenience I’ve extracted ten such comments which, while not sent in as specific responses to the Preliminary Recommendations and Annex E that this Sub Team is analysing, nonetheless seem relevant generally. I attach these ten comments in tabular form to this email, and welcome the Sub Team’s discussion and comments on whether any of them ought to be considered as well as your thoughts on the summary document. As the Sub Team is due to report back to the full WG next Tuesday, please let me know also if you think a call before then amongst the Sub Team members might be needed. 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<mailto:mary.wong@icann.org> From: Mary Wong <mary.wong(a)icann.org<mailto:mary.wong@icann.org>> Date: Monday, August 31, 2015 at 15:46 To: "gnso-ppsai3(a)icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3(a)icann.org<mailto:gnso-ppsai3@icann.org>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview Hello everyone, in an attempt to facilitate further dialogue and, hopefully, consensus on a way forward on this issue, I’ve taken the liberty of amending Kathy’s document to take into account Holly’s comments as well as to attempt to place certain comments (e.g. the ICA’s, EasyDNS’) more specifically within a particular category. I attach both a redlined and clean copy of this latest updated version (with the clean copy including yellow highlighted portions where the most significant language changes are suggested). I have not yet broken the comments down further into the registrant/provider distinction that Todd noted, but can of course do so if this is viewed as useful. Please note that this is not a staff position that is being suggested, but merely an attempt to document where the Sub Team’s discussion seems to be at the moment. I hope this is helpful. 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<mailto:mary.wong@icann.org> From: <gnso-ppsai3-bounces(a)icann.org<mailto:gnso-ppsai3-bounces@icann.org>> on behalf of "Williams, Todd" <Todd.Williams(a)turner.com<mailto:Todd.Williams@turner.com>> Date: Friday, August 28, 2015 at 22:40 To: Kathy Kleiman <kathy(a)kathykleiman.com<mailto:kathy@kathykleiman.com>>, "gnso-ppsai3(a)icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3(a)icann.org<mailto:gnso-ppsai3@icann.org>> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview Thanks Kathy. I both agree and disagree with what you’ve said below. I strongly agree that “the key is the quotes that have come out of the comments.” I’ve said repeatedly that our job as a sub-team is not to advocate, but to simply present the comments to the WG in as accurate and objective a way as possible. To the extent that we then want to advocate for our own positions as part of the larger WG, we can do so. Moreover, part of the reason why I feel so strongly that “the key is the quotes” is that I think we have to take the comments at face value, and then debate as WG whether we can reach consensus on what they actually say – not on what we want them to say. That’s why I felt so strongly that “verifiable evidence” should not be reinterpreted to mean a court order. It is also what animated my email exchange with Stephanie in the larger WG (attached). And if we are in fact faithful to what the comments actually say, then it is a mistake to lump all of the “court order” comments into one monolithic group. I’ve given some examples of substantive differences below. But let me give another one: if we look at what they actually say, the “court order” comments are very much divided based on whether the comment came from an individual registrant or from a registrar/provider. Which of course makes sense: a registrant will tend to look at these issues very differently than a provider. Specifically, as you correctly note in our draft, the vast majority of comments (11,000+) from individuals/registrants said that “Everyone deserves the right to privacy” and that “No one’s personal information should be revealed without a court order, regardless of whether the request comes from a private individual or law enforcement agency.” And of course, we can understand why registrants would argue that their right to privacy is inviolate, and that it should never be abrogated unless a court blesses it. But note that the registrar/provider comments in the “court order” group do NOT say the same thing. Rather, they are focused on retaining their discretion as to when to disclose or publish, and do not want an accreditation standard that requires them to do so absent a court order. Hence my point about the word “require” in the Blacknight comment. See also the Key Systems comment: “Disclosure or publication should never be the automatic result of a process, but rather remain an option of the provider.” And others. So one key distinction b/w the registrant/individual comments and the registrar/provider comments is that the registrant comments do not want disclosure or publication EVER unless following a court order, while the provider comments want a court order first if SOMEBODY ELSE wants them to disclose or publish, but not if THEY want to disclose or publish. And we can understand why, given how many provider Terms of Service include language that gives them discretion to basically turn off a P/P Service whenever they want (for example, if the registrant stops paying them), without any kind of process beforehand (due process or otherwise). See below (among many others): · Blacknight: https://www.blacknight.com/acceptable-usage.html. · Whoisprivacy.com, Ltd.: http://www.whoisprivacyservices.com.au/terms.htm. · EuroDNS S.A.: https://www.eurodns.com/terms-and-conditions/whois-privacy. · 1&1 Internet, Inc.: http://www.1and1.com/TcPdr?__lf=Static. · Domain.com, LLC: http://www.domain.com/legal/legal_domain.bml#domain-privacy-service. · DomainIt, Inc.: https://www.domainit.com/terms.html. · Moniker Privacy Services, LLC: http://www.moniker.com/legal/registration-agreement. So we can understand why providers would not want an accreditation regime that requires them to get a court order before they turn off a registrant’s privacy service (and to rewrite their Terms of Service accordingly). In fact, Volker has already admitted – both on the email list (see attached) and on our weekly calls (see transcript of 8-11-15 call) – that such an accreditation requirement would have such a “severe impact” on the economic realities of providers (in other words, would cost them so much money), that they could never agree to such a requirement. But of course, if I’m an individual registrant concerned about my privacy and due process, then I could care less about the “economic realities” of providers. My point is only that we can’t gloss over that important distinction (and others) by lumping all of the “court order” comments together as if they were coming from the same place and advocating for the same thing. They’re not. From: Kathy Kleiman [mailto:kathy@kathykleiman.com] Sent: Friday, August 28, 2015 8:44 AM To: Williams, Todd <Todd.Williams(a)turner.com<mailto:Todd.Williams@turner.com>>; gnso-ppsai3(a)icann.org<mailto:gnso-ppsai3@icann.org> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview Hi Todd, The entire WG is now looking to our comments to show what supports Annex E (deemed generally to be a lower standard than court order) and Court Order (deemed to be a much higher standard than Annex E). What we are talking about is the floor, not the ceiling, right, for accreditation? Namely, what is the minimum requirement for disclosure of proxied data? I see it as really quite binary - up or down (Annex E or court order for private requests to p/p providers) - but I can understand if the subteam thinks differently. What I think is key is the quotes that have come out of the comments. Provided we keep the quotes, I'm good.I can rework, but not until end of weekend or early next week. Best, Kathy : Thanks Kathy. · When you say that “in the weeks since the original draft, I think the discussion has evolved from a multipart one . . . to a binary one” – what are you basing that on? Can you point to any transcripts or emails? I certainly don’t remember being part of those discussions. · Moreover, had I been involved in those discussions, I would have objected, because I think that lumping the comments together in the way that you have, and ignoring the categories that our sub-team had already agreed upon, does a disservice to the nuance of the comments from Google, ICA, EasyDNS, and the like. For example, a UDRP panel is not a court. I think that is an important distinction between Categories 2 and 3. And the fact that the ICA and EasyDNS comments would allow for “some exceptions for cases of abuse” is another important distinction that the broader WG ought to know about. I’m fine if we want to include some sort of introductory sentence saying that __ comments opposed the basic premise of Annex E (which we do). But to then argue that those comments are monolithic, or that they all oppose the premise of Annex E in the same way, is not accurate. · I simply understood the ISPCP comment to mean that allegations of infringement should not always be automatically taken as true (“not indisputably wronged parties”), and that some independent adjudicator (meaning, somebody other than the IP owner who is making the allegation) should evaluate the merits of those claims. Annex E as currently drafted provides for that. But I also don’t think that you or I should necessarily be the ones to decide this argument. Why can’t we just say that we weren’t quite sure what to do with this one (as was true with some others), and take it to the larger WG for their consideration. · I think you’re missing my point on Blacknight. My point is that the key word is “require.” As I mentioned below, nothing in Annex E “requires” Blacknight to disclose (merely to give reasons if they refuse to disclose). So I don’t see anything in their comment that is inconsistent with Annex E. · On the APC comment: I don’t disagree with you that the comment has important value for the WG. But that’s not the same thing as saying that it advocates for disclosure only following a court order. It doesn’t. From: Kathy Kleiman [mailto:kathy@kathykleiman.com] Sent: Wednesday, August 26, 2015 10:59 PM To: Williams, Todd <Todd.Williams(a)turner.com><mailto:Todd.Williams@turner.com>; gnso-ppsai3(a)icann.org<mailto:gnso-ppsai3@icann.org> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview Hi Todd, Tx you for the close read. In the weeks since the original draft, I think the discussion has evolved from a multipart one - such as the 5 categories originally created in Section III -- to a more binary one: do commenters support a system such as Annex E or do they want court order prior to the reveal of the data? With apologies, I don't understand the differentiation into Categories 2, 3 and 4 in Section III. Some parties may have mentioned UDRP, and others not, but that does not take away from the totality of the commenters who want court orders -- or want court orders for certain categories of requests such as privacy requests to p/p providers from third parties, such as intellectual property requests. To divide up these comments really dilutes the argument, I think, as these commenters favor court order for the key issue we are evaluating. So I would recommend keeping Google, Endurance, Wheelhouse, ICA and Easy DNS together in Category 2. The ISPCP Constituency Comments call for an "independent adjudicator" to "determine the merits of their ("intellectual property rights holders") claims. I thought that was pretty clear reference to a judge or magistrate, but if you see it differently, please let me know. Re Blacknight, on the issue of Annex E or court order, the comments appear to come down squarely for court orders. For LEA, it recommends a different approach, but there is no reference to Annex E, only "a request from law enforcement, Irish consumer protection agencies or a court order with jurisdiction over us." The intellectual property requests falls into the final category -- court order -- and as such, this comment would be properly listed here. Re: APC, Alliance for Progressive Communications, you are right that I missed a step in putting this comment forward. The question this quote addresses, and it is a valuable one, is court orders and jurisdiction -- from which jurisdiction are court orders are valid? Here APC provides us with unique insight, very worth passing onto the WG: that release of domain name data in some countries has and will continue to result in arrest, prosecution, conviction, etc. of "domain owners" who are "exercising activism" online. This is a very tough issue that we discussed in the WG, and APC is on the ground in Africa and near the Middle East to see abuses first hand. As the WG explores the issue of court orders, the next question is: from what jurisdiction should/must p/p provider accept a court order? The APC comment reminds us that what is clearly legal in one country is punishable in another -- and that jurisdictional issues for court orders are a key part of what we (the WG) have to keep in mind. If you would like to create a introductory paragraph, or new section, for this type of discussion, I would certainly welcome it! Best, Kathy : Thanks Kathy. One minor formatting suggestion: I think the spectrum that we outline on page 5 (Categories 1-4) is useful, because not all of these comments are advocating for the same thing. Yet the quotes that we’ve added from the comments are all included under Category 2, which is somewhat confusing. I would suggest that we move: · The quotes from the comments from Google, Endurance International Group, and Jeff Wheelhouse to the paragraph on Category 3. · The quotes from the comments from ICA and Easy DNS to the paragraph on Category 4. Also, I saw that you added quotes from the comments from ISPCPC, Blacknight, and the Association for Progressive Communications, even though those weren’t in our initial summary and don’t specifically mention Annex E. My thoughts on each: · Here’s the full ISPCPC quote, from a section titled “Regarding LEA definitions & differentiations”: “While we respect the desire to utilize the official ICANN definition of Law Enforcement Agent (LEA), we acknowledge that intellectual property rights holders and private anti abuse organizations should be treated as complainants and not indisputably wronged parties, and accordingly an independent adjudicator should determine the merits of their claim before rights that users would otherwise have are abrogated by reason of those lawyers' claims.” To be honest, I’m not really sure what to make of that (especially given that it is included under a heading about LEA definitions). But I’m not sure that we can assume that it means disclosure only following a court order. Why would Annex E as currently drafted not satisfy the standard of “an independent adjudicator should determine the merits of their claim”? · I also don’t understand why we would think that the Blacknight quote is incompatible with Annex E. All it says is that “any policy that would require us to divulge our client’s information in the absence of either a request from law enforcement, Irish consumer protection agencies or a court order with jurisdiction over us is incompatible with Irish law.” But Annex E as currently drafted doesn’t require Blacknight to divulge its client’s information. Rather, it gives Blacknight the discretion to make that decision; all it requires is that Blacknight provide the complainant with its reasoning if it chooses to refuse. · I don’t understand why we’d include a quote from the APC comment in this section, given that it does not mention Annex E, and that it expressly endorsed the NCSG comment (see: http://forum.icann.org/lists/comments-ppsai-initial-05may15/pdfwOfjgYV0i9.p…) which we analyze in the previous section that supports the premise of Annex E. From:gnso-ppsai3-bounces@icann.org<mailto:gnso-ppsai3-bounces@icann.org> [mailto:gnso-ppsai3-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Wednesday, August 26, 2015 5:17 PM To: gnso-ppsai3(a)icann.org<mailto:gnso-ppsai3@icann.org> Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview Hi All, Tx to Darcy for the Overview work. I've taken her draft and added to it my work on Section III as promised on the last call. I added more quotes from commenters seeking court orders and the use of existing legal due process mechanisms prior to disclosure of proxied data. There was a wide array of comments on this issue, including from ISPs, individuals, organizations, and companies. I used Darcy's version as the base. Both her edits (Overview) and my edits (Section III) are shown in "track changes." Best, Kathy : Hi, all! In follow up to our call earlier this week, attached is an updated Sub-team 3 analysis draft with the overview added at the beginning. I redlined my changes so you can clearly see what I’ve done. I hope you find that I present a clear and accurate overview. I also made some minor revisions to Section V (“Comments that did not fit neatly into any of the above categories”) that I realized after submitting my original draft of that section made a bit more sense. Again, I’ve redlined the changes so you can easily see what changed. Please let me know if there are any questions. Thanks, Darcy _______________________________________________ Gnso-ppsai3 mailing list Gnso-ppsai3(a)icann.org<mailto:Gnso-ppsai3@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai3

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