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Re: [Gnso-ppsai3] [Gnso-ppsai-pdp-wg] Action items from WG call today
by Kathy Kleiman Nov. 20, 2015

Nov. 20, 2015

All (Subteam 3), This is what I proposed originally: /In making a submission to request disclosure of a Customer’s contact information, Requester agrees to to submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts (1) of your domicile and (2) where Provider is located be bound by jurisdiction at the seat of the Service Provider for disputes arising from alleged improper disclosures caused by knowingly false statements made by the Requester, or from Requester’s knowing misuse of information disclosed to it in response to its request. / In light of discussion and review, I now recommend the following: /In making a submission to request disclosure of a Customer’s contact information, Rights Holder agrees to to submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts (1) where it is incorporated AND (2) where the Provider specifies for disputes arising from alleged improper disclosures caused by knowingly false statements made by the Requester or from Requester’s and/or Rights Holders' knowing misuse of information disclosed to it in response to its request. ("Revised Paragraph") /The "AND" is capitalized so it won't be deleted again. The goal here is simply to ensure that the Rights Holder is responsible. As we provided in the Request Template, the Requester must have the "authority to make the representations and claims on behalf of the rights holder in the request" and bind the rights holder to the "limitations on the use of Customer data" once revealed. So it is the Rights Holder who is responsible and who should be reachable if abuse occurs. I agree with Todd that we should make this explicit. I already took steps to do that in our revised Annex E. As these earlier edits share, we should include the jurisdiction agreement in the affidavit being signed by the Requester, and per our additional discussion, we should have the Provider state there what jurisdiction it is setting out. Kathy On 11/10/2015 5:41 PM, Mary Wong wrote: > Dear WG members, > > Following up on the call earlier today, the co-chairs would like to > encourage everyone to continue discussions on the mailing list so that > we can finalize our recommendations soon. For your review and > discussion, the co-chairs are proposing the updated draft language > below on the two main outstanding issues, based on the most recent WG > discussions. > > (1) On additional language for the definition of P/P service providers: > > /"The WG recommends that Registrars not knowingly accept > registrations from P/P service providers who are not accredited > through the process developed by ICANN. For non-accredited > entities registering names on behalf of third parties, the WG > notes that the obligations for Registered Name Holders as outlined > in section 3.7.7 of the 2013 RAA would apply.”/ > > (2) On Option 2 (Jurisdiction) of the Illustrative Disclosure Framework: > > /"In making a submission to request disclosure of a Customer’s > contact information, Requester agrees to submit to the > jurisdiction of the courts in the location specified by the > Provider in its published Terms of Service, solely for disputes > arising from alleged improper disclosures caused by knowingly > false statements made by the Requester, or from Requester’s > knowing misuse of information disclosed to it in response to its > request.”/ > > > Please also take this opportunity to provide feedback on the > substantive recommendations contained in the draft Final Report > circulated on 8 October, as we are finalizing an updated draft for > circulation shortly. > > Thank you! > > Cheers > Mary > > Mary Wong > Senior Policy Director > Internet Corporation for Assigned Names & Numbers (ICANN) > Telephone: +1 603 574 4889 > Email: mary.wong(a)icann.org > > > > > _______________________________________________ > Gnso-ppsai-pdp-wg mailing list > Gnso-ppsai-pdp-wg(a)icann.org > https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg

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Re: [Gnso-ppsai3] [Gnso-ppsai-pdp-wg] Feedback on Illustrative Disclosure Framework
by Kathy Kleiman Nov. 13, 2015

Nov. 13, 2015

Steve, Both paragraphs that were posted in the WG on the Tuesday call and attributed to me had major deletions, replacements and even changes from AND to OR. Substantive edits that gutted the meaning and intent - yet were not distributed prior to the meeting or otherwise shared as revised/edited/modified text. Purposeful or inadvertent, it undermines the process in which we are engaged - and calls into question in the too-rapid speed in which we have been moving forward. I will be circulating revised text, but we need to agree that this type of misrepresentation will not take place again. Best, Kathy On 11/12/2015 11:15 AM, Metalitz, Steven wrote: > > Kathy, can you be more specific as to what you are referring to? > > Steve > > *From:*Kathy Kleiman [mailto:kathy@kathykleiman.com] > *Sent:* Thursday, November 12, 2015 11:12 AM > *To:* Williams, Todd; Mary Wong; gnso-ppsai3(a)icann.org; Stephanie > Perrin; James Gannon; Graeme Bunton; Holly Raiche; Metalitz, Steven > *Subject:* Re: [Gnso-ppsai3] [Gnso-ppsai-pdp-wg] Feedback on > Illustrative Disclosure Framework > > All, > It is very difficult to work with a situation where words are changed, > meanings are changed and ideas are modified without notice and still > attributing those words to the original person who wrote the original > version. It undermines trust in this process and any sense of > cooperation and shared endeavor. > > Kathy > > On 11/11/2015 8:14 AM, Williams, Todd wrote: > > Thank you Mary. This language looks good to me, and should > address the point raised by James. My only thought is that if we > go this route, for the sake of full upfront notice to Requesters, > the choice of jurisdiction in the “published Terms of Service” > should be readily and easily accessible. Perhaps the easiest way > to do that would be for P/P Providers to use a request form in > which the jurisdiction is specified? I think that is where Kathy > was headed with the edits to Section II that she had proposed. To > the extent that we can get those finalized, I think we may be > close to done with this last remaining issue. > > *From:*Mary Wong [mailto:mary.wong@icann.org] > *Sent:* Tuesday, November 10, 2015 10:31 PM > *To:* Williams, Todd <Todd.Williams(a)turner.com> > <mailto:Todd.Williams@turner.com>; Kathy Kleiman > <kathy(a)kathykleiman.com> <mailto:kathy@kathykleiman.com>; > gnso-ppsai3(a)icann.org <mailto:gnso-ppsai3@icann.org>; Stephanie > Perrin <stephanie.perrin(a)MAIL.UTORONTO.CA> > <mailto:stephanie.perrin@MAIL.UTORONTO.CA>; James Gannon > <james(a)cyberinvasion.net> <mailto:james@cyberinvasion.net> > *Subject:* Re: [Gnso-ppsai3] [Gnso-ppsai-pdp-wg] Feedback on > Illustrative Disclosure Framework > > Hello again everyone, and thanks to Todd and Kathy for continuing > the work and discussions. > > As you will have seen, I’ve sent an email to the full WG at the > co-chairs’ requests, proposing updated draft language for Option > Two on their behalf. For your convenience, here is the proposed > language, with the changes highlighted in bold. You may recall > that this originates in a proposal made by James Bladel a few > weeks ago on a WG call. > > /"In making a submission to request disclosure of a Customer’s > contact information, Requester agrees to submit to the > jurisdiction of the courts i*n the location specified by the > Provider in its published Terms of Service*, solely for disputes > arising from alleged improper disclosures caused by knowingly > false statements made by the Requester, or from Requester’s > knowing misuse of information disclosed to it in response to its > request.”/ > > Although the idea is to have the full WG engaged in this > discussion, I thought it might be helpful to also note the update > for the Sub Team, especially as discussions continue here as well. > > 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: *<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: *Tuesday, November 10, 2015 at 11:20 > *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>>, Stephanie Perrin > <stephanie.perrin(a)MAIL.UTORONTO.CA > <mailto:stephanie.perrin@MAIL.UTORONTO.CA>>, James Gannon > <james(a)cyberinvasion.net <mailto:james@cyberinvasion.net>> > *Subject: *Re: [Gnso-ppsai3] [Gnso-ppsai-pdp-wg] Feedback on > Illustrative Disclosure Framework > > So while this is fresh in my mind having just finished the call: > > I’m still somewhat surprised that we think that various > jurisdictions are going to provide more certainty than one. I > suppose that rests on an empirical assumption that Kathy is > making (that most P/P Providers are located in “major > jurisdictions” – and will stay there). But for the sake of > moving us toward the rapidly approaching finish line: OK, if > we’re going with Option Two, then what is the exact language > that we should use? Here is what Mary circulated in her last > email and what we just discussed on the call: > > "In making a submission to request disclosure of a Customer’s > contact information, Requester agrees to submit to the > jurisdiction of the courts in the location either of its or > the Provider’s primary place of business, solely for disputes > arising from alleged improper disclosures caused by knowingly > false statements made by the Requester, or from Requester’s > knowing misuse of information disclosed to it in response to > its request." > > And here is what Kathy had recommended in the last draft that > we had circulated: > > “In making a submission to request disclosure of a Customer’s > contact information, Requester agrees to submit, without > prejudice to other potentially applicable jurisdictions, to > the jurisdiction of the courts (1) of your domicile and (2) > where Provider is located for disputes arising from alleged > improper disclosures caused by knowingly false statements made > by the Requester, or from Requester’s knowing misuse of > information disclosed to it in response to its request.” > > I understand Kathy’s point from the call that the first “or” > should be an “and.” But beyond that, I don’t understand > what’s wrong with the language that Mary proposed. I > certainly don’t understand the idea that the Requester should > submit to the jurisdiction of the Customer (which it has no > way of knowing when it makes the request). As I mentioned on > the call, that’s never been on the table (and just so that > there is not any doubt that the “your” in Kathy’s first > formulation referred to the Requester and not to the Customer, > the clarifying language that Kathy suggested for Section II > references the jurisdiction of the “copyright holder” or the > “trademark holder”). Nor has the idea of a bond (unless > somebody can point me to one of our sub-team emails or drafts > that discussed a bond that I just forgot). > > *From:*Kathy Kleiman [mailto:kathy@kathykleiman.com] > *Sent:* Saturday, November 07, 2015 8:44 PM > *To:* Williams, Todd <Todd.Williams(a)turner.com > <mailto:Todd.Williams@turner.com>>; gnso-ppsai3(a)icann.org > <mailto:gnso-ppsai3@icann.org>; Stephanie Perrin > <stephanie.perrin(a)MAIL.UTORONTO.CA > <mailto:stephanie.perrin@MAIL.UTORONTO.CA>>; James Gannon > <james(a)cyberinvasion.net <mailto:james@cyberinvasion.net>> > *Subject:* Re: [Gnso-ppsai3] [Gnso-ppsai-pdp-wg] Feedback on > Illustrative Disclosure Framework > > Hi Todd and All, > I am still confused about affiliated providers vs. accredited > providers (can someone please help me with these definitions? > -- shout-out to Steve and Mary too) because I think the > answers will dispel many of the concerns, including this > Panama one. Most registrars are located in major > jurisdictions, as are their providers (e.g., GoDaddy and > Domains By Proxy). > > If you would help me walk through an example, i would > appreciate it. Interestingly JEB2016.COM <http://JEB2016.COM> > is registered to Tucows through its privacy services, Contact > Privacy Inc., both in Toronto, Ontario. Let's say that Jeb > Bush's private residence was listed as the underlying Customer > information, and a Reveal Request allegedly for purpose X > (trademark on "jeb," for example) resulted in revealed data of > this residence which was the misused by people with a grudge > to the Bush family and real harm/damage to person or property > (or both) was done. If the Requester is now located in Panama > (a far more likely scenario than that the Provider would be), > then why would we want to force Jeb Bush to go down to Panama > to seek redress of his rights? It seems that the locus of the > illegality and the "res" of the domain name property would > both be in Toronto. These are the courts that will become > expert in the issues and timely settlement/decision of these > issues... > > I would be interested in your thoughts. > Best regards, Kathy > > On 11/6/2015 12:38 PM, Williams, Todd wrote: > > > > Thanks Kathy. To be clear: nothing in either Option One > or Option Two prevents a wronged Customer from suing in > “real-world courts” wherever they can establish > jurisdiction for whatever remedies they can allege. But > the premise of the Annex is that the harms that you’ve > identified (doxing, swatting, etc.) are significant enough > that Customers might need even more than that. And the > question is what is a better “even more” – also being able > to sue in the jurisdiction of the Provider, or also being > able to bring an action at an ICANN-approved dispute > resolution provider? > > And just to be clear: when you say you “don’t agree” – > what does that mean? That you think that having recourse > to courts in Panama is more likely to help correct the > “power imbalance” and provide “certainty” as to outcomes > than would having recourse to a dispute-resolution > provider? If so, why do you think that? > > *From:*gnso-ppsai3-bounces@icann.org > <mailto:gnso-ppsai3-bounces@icann.org> > [mailto:gnso-ppsai3-bounces@icann.org] *On Behalf Of > *Kathy Kleiman > *Sent:* Friday, November 06, 2015 12:08 PM > *To:* gnso-ppsai3(a)icann.org > <mailto:gnso-ppsai3@icann.org>; Stephanie Perrin > <stephanie.perrin(a)MAIL.UTORONTO.CA> > <mailto:stephanie.perrin@MAIL.UTORONTO.CA>; James Gannon > <james(a)cyberinvasion.net> <mailto:james@cyberinvasion.net> > *Subject:* Re: [Gnso-ppsai3] [Gnso-ppsai-pdp-wg] Feedback > on Illustrative Disclosure Framework > > Dear Todd, > I don't agree and do not want to spend 3 more years > drafting the arbitration proceedings to take place here. > Ones that may or may not have the ability to address the > real-world damages of the costs and harms of doxing, > swatting, outing a blogger or relocating a battered > women's shelter. > > Real-world harms, real-world due process, real-world > courts. At this point the problems are WAY outside of > ICANN's mandate or remit. > > Best, > Kathy > > On 11/5/2015 5:42 PM, Williams, Todd wrote: > > Thanks Mary for this summary. Let me jump in with > some first thoughts, hopefully to stimulate some email > thread traffic: > > As I mentioned before, I’m not sure where I come out > on this Annex to the Annex. And so to help me think > through that, I threw out some basic questions on the > call on Tuesday: what is the purpose of this Annex, > how is it related to the bigger picture of what we’re > trying to do (formulate policy recommendations re: P/P > Provider accreditation), and would our Final Report be > missing something if we just took it out? We heard > two answers to those questions: one from Kathy and one > from Stephanie. The discussion is at pages 23-24 of > the Transcript, but to summarize, those two answers were: > > 1)Kathy’s: we received thousands of comments noting > the potential harm to Customers if their data is > disclosed/misused, and so Customers need certainty as > to how to obtain a remedy if that happens. > > 2)Stephanie’s: there is a power imbalance, and > Customers aren’t going to know how to sue Requesters > who have misused their data unless they are seasoned > and sophisticated Internet users. > > Accepting the premises of those two points as true > (for the sake of our discussion): where does that > leave us? Just picking one example (the one that > Steve used on the call): WhoisGuard is a Panamanian > company. So which of our two options would be more > helpful to correct the “power imbalance” for a wronged > WhoisGuard Customer? If they live in Panama and/or > can afford a Panamanian local counsel, then perhaps > Option Two. But if they live anywhere else in the > world and/or can’t afford a Panamanian local counsel, > then presumably Option One – right? And what about > Kathy’s point about “certainty” as to a remedy? What > is more likely to produce “certainty” for wronged > Customers – a mishmash of local court precedent, such > that your remedy varies by the jurisdiction of your > Provider (meaning, you get one remedy in Panamanian > court if you use WhoisGuard, but a different remedy in > US court if you use DomainsByProxy, and so on)? Or a > unified body of precedent developed by the > ICANN-approved dispute resolution provider referenced > in Option One? > > *From:*gnso-ppsai3-bounces@icann.org > <mailto:gnso-ppsai3-bounces@icann.org> > [mailto:gnso-ppsai3-bounces@icann.org] *On Behalf Of > *Mary Wong > *Sent:* Wednesday, November 04, 2015 6:02 PM > *To:* gnso-ppsai3(a)icann.org <mailto:gnso-ppsai3@icann.org> > *Subject:* Re: [Gnso-ppsai3] [Gnso-ppsai-pdp-wg] > Feedback on Illustrative Disclosure Framework > > Dear Sub Team 3 members, > > Staff thought we ought to follow up with you after the > WG discussion on the call yesterday. As noted then, > there are two basic categories of changes/issues that > were brought up for WG consideration. The first > category concerns the changes made to Section III of > the Framework following the WG’s Dublin discussions, > which were described by Todd on the call, and for > which Steve had asked WG members to send any further > comments they may have to the WG mailing list by COB > tomorrow (Thursday). > > The second, and remaining, topic is the two options in > the annex, on which further WG contributions have also > been requested by this week while the Sub Team > continues to try to develop a final recommendation for > the WG before the next call next Tuesday. > > Kathy, I’m not sure if this is what you meant by > Steve’s suggested language, but here is the part of > the transcript that I think you may be referring to: > > /“ … we need to figure out whether or not we need to > resolve that in order to provide that additional > marginal comfort for the customer who feels that the > information that was disclosed was misused. I mean, I > don't think we're - we've reached a conclusion on > this. But I would ask people to try to think about > this and see first, whether they feel this is > necessary to address this. And second, if so, then how > should we be tweaking Option Two to make it clear? Two > points really. One is really that there is some way > for the requestor to know what jurisdiction he or she > is submitting to. And the second is -- the other point > I would make is — we probably could say, "solely for > the purpose of disputes arising from a less than > proper disclosure, et cetera.” Because it's not a > general -- you know -- "I agree to be sued by the > customer for anything in this jurisdiction." It's just > for certain types of allegations. So unless you people > have other comments on this question or suggestions > about how we might resolve this. I think we have > gotten some of the issues out on the table here. And I > appreciate everyone's participation in that.”/ > > Perhaps the Sub Team could agree on whether or not its > answer to the first question is yes, it’s necessary to > address the question of jurisdiction to be agreed on > by a Requester for the purpose of a customer’s seeking > legal recourse in the event of an improper disclosure. > If so, then the Sub Team could try to agree on > recommended language for Option Two, including > starting with Steve’s suggestion as pasted above. > > We hope this summary helps with the Sub Team’s further > discussions. Please let us know how we can assist with > your deliberations this week. > > 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: *<gnso-ppsai-pdp-wg-bounces(a)icann.org > <mailto:gnso-ppsai-pdp-wg-bounces@icann.org>> on > behalf of Kathy Kleiman <kathy(a)kathykleiman.com > <mailto:kathy@kathykleiman.com>> > *Date: *Wednesday, November 4, 2015 at 13:15 > *To: *"gnso-ppsai-pdp-wg(a)icann.org > <mailto:gnso-ppsai-pdp-wg@icann.org>" > <gnso-ppsai-pdp-wg(a)icann.org > <mailto:gnso-ppsai-pdp-wg@icann.org>>, "Metalitz, > Steven" <met(a)msk.com <mailto:met@msk.com>> > *Subject: *Re: [Gnso-ppsai-pdp-wg] Feedback on > Illustrative Disclosure Framework > > Tx Mary. > > Hi Steve - could you please post the language that > you suggested on the call yesterday - language > that would limit the jurisdictional provision > solely to matters in Annex E? > > Tx, > Kathy > > On 11/4/2015 1:00 PM, Mary Wong wrote: > > Thanks for the detailed follow up, Phil – > staff will in turn follow up with Sub Team 3 > as they finalize their recommendations on the > Framework for the WG this week. > > As requested by Steve on the WG call > yesterday, we’d like to remind everyone to > _please raise any further questions or > comments you may have on: (1) the latest > proposed edits to the Framework as presented > by Todd and Kathy on the call; and (2) the > proposed new language on recommendations > concerning de-accreditation, to the mailing > list_ by the end of your respective working > days tomorrow (*Thursday 5 November*). If no > further issues are raised with the few > post-Dublin changes made to the Framework > language (except for the annex, which is still > being worked on by the Sub Team) or the > de-accreditation text, we’ll proceed to insert > those into the next iteration of the draft > Final Report. > > Staff will also follow up on the proposed > discussion with our operational colleagues of > implementation issues that may require > refinement or reconsideration of the current > language of the WG's policy recommendations – > please look out for a separate email on that > topic. > > Thank you. > > Cheers > > Mary > > Mary Wong > > Senior Policy Director > > Internet Corporation for Assigned Names & > Numbers (ICANN) > > Telephone: +1 603 574 4889 > > Email: mary.wong(a)icann.org > <mailto:mary.wong@icann.org> > > From: Phil Corwin <psc(a)vlaw-dc.com > <mailto:psc@vlaw-dc.com>> > Date: Wednesday, November 4, 2015 at 11:49 > To: Mary Wong <mary.wong(a)icann.org > <mailto:mary.wong@icann.org>>, > "gnso-ppsai-pdp-wg(a)icann.org > <mailto:gnso-ppsai-pdp-wg@icann.org>" > <gnso-ppsai-pdp-wg(a)icann.org > <mailto:gnso-ppsai-pdp-wg@icann.org>> > Subject: RE: [Gnso-ppsai-pdp-wg] Agenda and > documents for review on 3 November 2015 > > Following up on yesterday’s call, and > amplifying/further explaining my oral > comments in regard to the “Revised > Illustrative Draft Disclosure Framework > for Intellectual Property Rights-holders” --- > > · Section IIA, starting on page 2, > addresses situations where “Where a domain > name allegedly infringes a trademark” and > thus coincides with scenarios where a > rights holder could employ the URS (at new > gTLDs) or the UDRP (at all gTLDs; and > noting that most ccTLDs have adopted > similar arbitration procedures) as well > as initiate litigation under applicable > national laws. The ICANN-adopted RPMs > allow an action to be initiated even when > the identity of the registrant is not > known, and many national laws provide for > /In Rem/ filings to address such > circumstances. > > · Subsection 6a requires the rights holder > (or its representative) seeking registrant > disclosure to provide a good faith > statement that “provides a basis for > reasonably believing that the use of the > trademark in the domain name -i. allegedly > infringes the trademark holder’s rights; > and ii. is not defensible”. *Some > questions that may require clarifying > modifications : 1) Does the phrase “use of > the trademark in the domain name” mean > that this process is only available where > the actual trademark, and not an allegedly > confusingly similar variant, constitutes > the domain name or is wholly incorporated > within it? 2) Given that the rights holder > is seeking a lifting of privacy protection > chosen by the registrant, is it sufficient > that its statement merely recite a basis > for believing that the domain name > “allegedly infringes” its trademark or > should there be a higher threshold – that > is, a requirement that the statement > allege that the use of the TM in the > domain _actually_ infringes its rights? 3) > Does the phrase “is not defensible” mean > that disclosure should only occur (or at > least be seriously considered) when the > domain name presents a black-and-white, > know-it-when-you-see-it scenario such as > that for which the URS is designed? > (Noting that in many UDRP cases a defense > is raised, and where it is raised it is > often successful.)(Further noting that > Section III.C.ii and iii allows the > provider to refuse disclosure where it has > a basis for reasonably believing that “use > of the claimed intellectual property is* > > *defensible”.)* > > · Subsection 6b requires the rights holder > or representative thereof to use the > Customer’s contact details only for > certain purposes, one of which is “in a > legal proceeding concerning the issue”. > *Is it intended that a URS or UDRP filing > fall within the meaning of “a legal > proceeding”? If so, can that be clarified > as some may assume it only references > court proceedings?* > > · Subsection 6c requires the Requestor’s > statement that it “c) agrees that the > Requestor will submit, without prejudice > to other potentially applicable > > jurisdictions, to the jurisdiction of the > courts (1) where the trademark holder is > incorporated and (2) where Provider is > located for purposes of any disputes > arising from alleged improper disclosures > caused by knowingly false statements made > by the Requester, or from Requester’s > knowing misuse of information disclosed to > it in response to its request”. *Given > that the allegation of an infringing > domain name may also be subject to a > contemporaneous or subsequent URS or UDRP > action, for the sake of completeness > should this agreement be expanded to > include submitting to the jurisdiction of > an accredited dispute resolution provider > (DRP) based upon the applicable > jurisdiction rules so that such bad > conduct could be taken into account to > find either abuse of the URS or attempted > reverse domain name hijacking under the UDRP?* > > · *Noting that, while the UDRP and URS are > not always directly applicable, many of > these same questions and requests for > clarification arise in regard to Section > II.C (Domain name resolves to website > where trademark is allegedly infringed).* > > · Section III.D states, “Disclosure cannot > be refused solely for lack of any of the > following: (i) a court order; (ii) a > subpoena; *(iii) a pending civil action; > or (iv) a UDRP or URS proceeding*; nor can > refusal to disclose be solely based on the > fact that the Request is founded on > alleged intellectual property infringement > in content on a website associated with > the domain name”. *I take issue with the > notion that the provider should still > continue to determine whether to disclose > the customer’s contact information where a > related civil action for trademark > infringement, or a URS or UDRP, have been > initiated (presumably by the rights > holder, since it is unlikely that the > customer would do so and thereby make its > identity known, in which event further > consideration of disclosure would be > moot). The request for disclosure is based > upon allegations of trademark infringement > and a court and/or accredited DRP have far > greater expertise than a P/P provider to > determine whether actual infringement > exists. Given that disparity of expertise, > my view is that the filing of such action > by the rights holder should stay the > disclosure request and relieve the > provider from any further obligation to > decide on it. Allowing the process to > continue could result in a situation where > privacy is violated and the court or DRP > subsequently finds no actual infringement.* > > Thank you for considering these questions > and views as the WG moves toward a final > version of this document. > > Best to all, > > Philip > > *Philip S. Corwin, Founding Principal* > > *Virtualaw LLC* > > *1155 F Street, NW* > > *Suite 1050* > > *Washington, DC 20004* > > *202-559-8597/Direct* > > *202-559-8750/Fax* > > *202-255-6172/cell* > > ** > > *Twitter: @VlawDC* > > */"Luck is the residue of design" -- > Branch Rickey/* > > *From:*gnso-ppsai-pdp-wg-bounces@icann.org > <mailto:gnso-ppsai-pdp-wg-bounces@icann.org> > [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] > *On Behalf Of *Mary Wong > *Sent:* Monday, November 02, 2015 5:13 PM > *To:* gnso-ppsai-pdp-wg(a)icann.org > <mailto:gnso-ppsai-pdp-wg@icann.org> > *Subject:* [Gnso-ppsai-pdp-wg] Agenda and > documents for review on 3 November 2015 > > Dear WG members, > > The agenda for our next meeting, on > Tuesday 3 November, is as follows. *PLEASE > NOTE THE UTC TIME CHANGE* due to daylight > savings time in a number of countries – > the call will be at 1500 UTC (07:00 PST, > 10:00 EST, 15:00 London, 16:00 CET). > > 1. Roll call/updates to SOI > 2. Continued discussion of Illustrative > Disclosure Framework (latest version > attached – please also see the note below) > 3. Discussion of proposed revised text > for de-accreditation (see attached > draft text) and possible data escrow > recommendation > 4. Next steps > > For agenda item #2, please note that the > draft being circulated is still under > discussion by Sub Team 3 and is subject to > further revision and recommendations by > the group. As such, the “redlined” edits > that were presented during the Dublin F2F > meeting have been retained rather > than “accepted” as changes. For your > easier review, please note that the main > changes since Dublin that incorporate the > WG’s discussion points and agreement in > Dublin include: (1) clarification in > Section III.A regarding an exception to > disclosure in cases where personal safety > is endangered; and (2) an addition to > Section III.C (as sub-section (vii)) to > clarify that providers will not need to > disclose if the verifiable evidence > spelled out in Section II is not fully > produced by the requester. > > In addition, this current draft includes > new language on dispute resolution (see, > e.g., Section II.A(6)(c)). The new > language was inserted to cover what has > been termed “Option 2” in the annex, > concerning dispute resolution in the event > of disclosure due to improper > requests. The Sub Team acknowledges that > while this topic was discussed briefly in > Dublin, there was no WG agreement on a > specific recommendation. The new language > in the current draft document – as well as > specific edits to the “annex” containing > Options One and Two – reflects a > suggestion by some Sub Team members to > adopt Option Two. This suggestion, which > may not reflect the view of all Sub Team > members as it is still being discussed, is > nevertheless being presented to the full > WG for further consideration. > > Thanks and cheers > > Mary > > Mary Wong > > Senior Policy Director > > Internet Corporation for Assigned Names & > Numbers (ICANN) > > Telephone: +1 603 574 4889 > > Email: mary.wong(a)icann.org > <mailto:mary.wong@icann.org> > > ------------------------------------------------------------------------ > > No virus found in this message. > Checked by AVG - www.avg.com > <http://www.avg.com> > Version: 2015.0.6140 / Virus Database: > 4450/10889 - Release Date: 10/25/15 > Internal Virus Database is out of date. > > > > > > > > > _______________________________________________ > > Gnso-ppsai-pdp-wg mailing list > > Gnso-ppsai-pdp-wg(a)icann.org > <mailto:Gnso-ppsai-pdp-wg@icann.org>https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg > > > > > > > > _______________________________________________ > > Gnso-ppsai3 mailing list > > Gnso-ppsai3(a)icann.org <mailto:Gnso-ppsai3@icann.org> > > https://mm.icann.org/mailman/listinfo/gnso-ppsai3 >

1 0

Re: [Gnso-ppsai3] [Gnso-ppsai-pdp-wg] Feedback on Illustrative Disclosure Framework
by Mary Wong Nov. 12, 2015

Nov. 12, 2015

Dear Sub Team 3 members, Staff thought we ought to follow up with you after the WG discussion on the call yesterday. As noted then, there are two basic categories of changes/issues that were brought up for WG consideration. The first category concerns the changes made to Section III of the Framework following the WG¹s Dublin discussions, which were described by Todd on the call, and for which Steve had asked WG members to send any further comments they may have to the WG mailing list by COB tomorrow (Thursday). The second, and remaining, topic is the two options in the annex, on which further WG contributions have also been requested by this week while the Sub Team continues to try to develop a final recommendation for the WG before the next call next Tuesday. Kathy, I¹m not sure if this is what you meant by Steve¹s suggested language, but here is the part of the transcript that I think you may be referring to: ³ we need to figure out whether or not we need to resolve that in order to provide that additional marginal comfort for the customer who feels that the information that was disclosed was misused. I mean, I don't think we're - we've reached a conclusion on this. But I would ask people to try to think about this and see first, whether they feel this is necessary to address this. And second, if so, then how should we be tweaking Option Two to make it clear? Two points really. One is really that there is some way for the requestor to know what jurisdiction he or she is submitting to. And the second is -- the other point I would make is we probably could say, "solely for the purpose of disputes arising from a less than proper disclosure, et cetera.² Because it's not a general -- you know -- "I agree to be sued by the customer for anything in this jurisdiction." It's just for certain types of allegations. So unless you people have other comments on this question or suggestions about how we might resolve this. I think we have gotten some of the issues out on the table here. And I appreciate everyone's participation in that.² Perhaps the Sub Team could agree on whether or not its answer to the first question is yes, it¹s necessary to address the question of jurisdiction to be agreed on by a Requester for the purpose of a customer¹s seeking legal recourse in the event of an improper disclosure. If so, then the Sub Team could try to agree on recommended language for Option Two, including starting with Steve¹s suggestion as pasted above. We hope this summary helps with the Sub Team¹s further discussions. Please let us know how we can assist with your deliberations this week. 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: <gnso-ppsai-pdp-wg-bounces(a)icann.org> on behalf of Kathy Kleiman <kathy(a)kathykleiman.com> Date: Wednesday, November 4, 2015 at 13:15 To: "gnso-ppsai-pdp-wg(a)icann.org" <gnso-ppsai-pdp-wg(a)icann.org>, "Metalitz, Steven" <met(a)msk.com> Subject: Re: [Gnso-ppsai-pdp-wg] Feedback on Illustrative Disclosure Framework > Tx Mary. > > Hi Steve - could you please post the language that you suggested on the call > yesterday - language that would limit the jurisdictional provision solely to > matters in Annex E? > > Tx, > Kathy > > On 11/4/2015 1:00 PM, Mary Wong wrote: >> Thanks for the detailed follow up, Phil staff will in turn follow up with >> Sub Team 3 as they finalize their recommendations on the Framework for the WG >> this week. >> >> As requested by Steve on the WG call yesterday, we¹d like to remind everyone >> to please raise any further questions or comments you may have on: (1) the >> latest proposed edits to the Framework as presented by Todd and Kathy on the >> call; and (2) the proposed new language on recommendations concerning >> de-accreditation, to the mailing list by the end of your respective working >> days tomorrow (Thursday 5 November). If no further issues are raised with the >> few post-Dublin changes made to the Framework language (except for the annex, >> which is still being worked on by the Sub Team) or the de-accreditation text, >> we¹ll proceed to insert those into the next iteration of the draft Final >> Report. >> >> Staff will also follow up on the proposed discussion with our operational >> colleagues of implementation issues that may require refinement or >> reconsideration of the current language of the WG's policy recommendations >> please look out for a separate email on that topic. >> >> Thank you. >> >> Cheers >> Mary >> >> Mary Wong >> Senior Policy Director >> Internet Corporation for Assigned Names & Numbers (ICANN) >> Telephone: +1 603 574 4889 >> Email: mary.wong(a)icann.org >> >> >> From: Phil Corwin < <mailto:psc@vlaw-dc.com> psc(a)vlaw-dc.com> >> Date: Wednesday, November 4, 2015 at 11:49 >> To: Mary Wong <mary.wong(a)icann.org>, "gnso-ppsai-pdp-wg(a)icann.org" >> <gnso-ppsai-pdp-wg(a)icann.org> >> Subject: RE: [Gnso-ppsai-pdp-wg] Agenda and documents for review on 3 >> November 2015 >> >>> Following up on yesterday¹s call, and amplifying/further explaining my oral >>> comments in regard to the ³Revised Illustrative Draft Disclosure Framework >>> for Intellectual Property Rights-holders² --- >>> · Section IIA, starting on page 2, addresses situations where ³Where >>> a domain name allegedly infringes a trademark² and thus coincides with >>> scenarios where a rights holder could employ the URS (at new gTLDs) or the >>> UDRP (at all gTLDs; and noting that most ccTLDs have adopted similar >>> arbitration procedures) as well as initiate litigation under applicable >>> national laws. The ICANN-adopted RPMs allow an action to be initiated even >>> when the identity of the registrant is not known, and many national laws >>> provide for In Rem filings to address such circumstances. >>> >>> · Subsection 6a requires the rights holder (or its representative) >>> seeking registrant disclosure to provide a good faith statement that >>> ³provides a basis for reasonably believing that the use of the trademark in >>> the domain name -i. allegedly infringes the trademark holder¹s rights; and >>> ii. is not defensible². Some questions that may require clarifying >>> modifications : 1) Does the phrase ³use of the trademark in the domain name² >>> mean that this process is only available where the actual trademark, and not >>> an allegedly confusingly similar variant, constitutes the domain name or is >>> wholly incorporated within it? 2) Given that the rights holder is seeking a >>> lifting of privacy protection chosen by the registrant, is it sufficient >>> that its statement merely recite a basis for believing that the domain name >>> ³allegedly infringes² its trademark or should there be a higher threshold >>> that is, a requirement that the statement allege that the use of the TM in >>> the domain actually infringes its rights? 3) Does the phrase ³is not >>> defensible² mean that disclosure should only occur (or at least be seriously >>> considered) when the domain name presents a black-and-white, >>> know-it-when-you-see-it scenario such as that for which the URS is designed? >>> (Noting that in many UDRP cases a defense is raised, and where it is raised >>> it is often successful.)(Further noting that Section III.C.ii and iii allows >>> the provider to refuse disclosure where it has a basis for reasonably >>> believing that ³use of the claimed intellectual property is >>> >>> defensible².) >>> >>> · Subsection 6b requires the rights holder or representative thereof >>> to use the Customer¹s contact details only for certain purposes, one of >>> which is ³in a legal proceeding concerning the issue². Is it intended that a >>> URS or UDRP filing fall within the meaning of ³a legal proceeding²? If so, >>> can that be clarified as some may assume it only references court >>> proceedings? >>> >>> · Subsection 6c requires the Requestor¹s statement that it ³c) >>> agrees that the Requestor will submit, without prejudice to other >>> potentially applicable >>> >>> jurisdictions, to the jurisdiction of the courts (1) where the trademark >>> holder is incorporated and (2) where Provider is located for purposes of any >>> disputes arising from alleged improper disclosures caused by knowingly false >>> statements made by the Requester, or from Requester¹s knowing misuse of >>> information disclosed to it in response to its request². Given that the >>> allegation of an infringing domain name may also be subject to a >>> contemporaneous or subsequent URS or UDRP action, for the sake of >>> completeness should this agreement be expanded to include submitting to the >>> jurisdiction of an accredited dispute resolution provider (DRP) based upon >>> the applicable jurisdiction rules so that such bad conduct could be taken >>> into account to find either abuse of the URS or attempted reverse domain >>> name hijacking under the UDRP? >>> >>> · Noting that, while the UDRP and URS are not always directly >>> applicable, many of these same questions and requests for clarification >>> arise in regard to Section II.C (Domain name resolves to website where >>> trademark is allegedly infringed). >>> >>> · Section III.D states, ³Disclosure cannot be refused solely for >>> lack of any of the following: (i) a court order; (ii) a subpoena; (iii) a >>> pending civil action; or (iv) a UDRP or URS proceeding; nor can refusal to >>> disclose be solely based on the fact that the Request is founded on alleged >>> intellectual property infringement in content on a website associated with >>> the domain name². I take issue with the notion that the provider should >>> still continue to determine whether to disclose the customer¹s contact >>> information where a related civil action for trademark infringement, or a >>> URS or UDRP, have been initiated (presumably by the rights holder, since it >>> is unlikely that the customer would do so and thereby make its identity >>> known, in which event further consideration of disclosure would be moot). >>> The request for disclosure is based upon allegations of trademark >>> infringement and a court and/or accredited DRP have far greater expertise >>> than a P/P provider to determine whether actual infringement exists. Given >>> that disparity of expertise, my view is that the filing of such action by >>> the rights holder should stay the disclosure request and relieve the >>> provider from any further obligation to decide on it. Allowing the process >>> to continue could result in a situation where privacy is violated and the >>> court or DRP subsequently finds no actual infringement. >>> >>> >>> Thank you for considering these questions and views as the WG moves toward a >>> final version of this document. >>> >>> Best to all, >>> Philip >>> >>> >>> >>> Philip S. Corwin, Founding Principal >>> Virtualaw LLC >>> 1155 F Street, NW >>> Suite 1050 >>> Washington, DC 20004 >>> 202-559-8597/Direct >>> 202-559-8750/Fax >>> 202-255-6172/cell >>> >>> Twitter: @VlawDC >>> >>> "Luck is the residue of design" -- Branch Rickey >>> >>> >>> From: gnso-ppsai-pdp-wg-bounces(a)icann.org >>> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] On Behalf Of Mary Wong >>> Sent: Monday, November 02, 2015 5:13 PM >>> To: gnso-ppsai-pdp-wg(a)icann.org >>> Subject: [Gnso-ppsai-pdp-wg] Agenda and documents for review on 3 November >>> 2015 >>> >>> >>> Dear WG members, >>> >>> >>> >>> The agenda for our next meeting, on Tuesday 3 November, is as follows. >>> PLEASE NOTE THE UTC TIME CHANGE due to daylight savings time in a number of >>> countries the call will be at 1500 UTC (07:00 PST, 10:00 EST, 15:00 >>> London, 16:00 CET). >>> 1. Roll call/updates to SOI >>> 2. Continued discussion of Illustrative Disclosure Framework (latest version >>> attached please also see the note below) >>> 3. Discussion of proposed revised text for de-accreditation (see attached >>> draft text) and possible data escrow recommendation >>> 4. Next steps >>> For agenda item #2, please note that the draft being circulated is still >>> under discussion by Sub Team 3 and is subject to further revision and >>> recommendations by the group. As such, the ³redlined² edits that were >>> presented during the Dublin F2F meeting have been retained rather than >>> ³accepted² as changes. For your easier review, please note that the main >>> changes since Dublin that incorporate the WG¹s discussion points and >>> agreement in Dublin include: (1) clarification in Section III.A regarding an >>> exception to disclosure in cases where personal safety is endangered; and >>> (2) an addition to Section III.C (as sub-section (vii)) to clarify that >>> providers will not need to disclose if the verifiable evidence spelled out >>> in Section II is not fully produced by the requester. >>> >>> >>> >>> In addition, this current draft includes new language on dispute resolution >>> (see, e.g., Section II.A(6)(c)). The new language was inserted to cover what >>> has been termed ³Option 2² in the annex, concerning dispute resolution in >>> the event of disclosure due to improper requests. The Sub Team acknowledges >>> that while this topic was discussed briefly in Dublin, there was no WG >>> agreement on a specific recommendation. The new language in the current >>> draft document as well as specific edits to the ³annex² containing Options >>> One and Two reflects a suggestion by some Sub Team members to adopt Option >>> Two. This suggestion, which may not reflect the view of all Sub Team members >>> as it is still being discussed, is nevertheless being presented to the full >>> WG for further consideration. >>> >>> >>> >>> Thanks and cheers >>> >>> Mary >>> >>> >>> >>> Mary Wong >>> >>> Senior Policy Director >>> >>> Internet Corporation for Assigned Names & Numbers (ICANN) >>> >>> Telephone: +1 603 574 4889 >>> >>> Email: mary.wong(a)icann.org >>> >>> >>> >>> >>> >>> >>> >>> >>> >>> >>> >>> No virus found in this message. >>> Checked by AVG - www.avg.com <http://www.avg.com> >>> Version: 2015.0.6140 / Virus Database: 4450/10889 - Release Date: 10/25/15 >>> Internal Virus Database is out of date. >> >> >> _______________________________________________ >> Gnso-ppsai-pdp-wg mailing list >> Gnso-ppsai-pdp-wg@icann.orghttps://mm.icann.org/mailman/listinfo/gnso-ppsai-p >> dp-wg >

4 13

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

Re: [Gnso-ppsai3] Finishing the cleanup of Annex 1
by Mary Wong Nov. 2, 2015

Nov. 2, 2015

Dear all, Thanks for continuing the great work post-Dublin! he WG co-chairs have asked if we can circulate the latest draft document from t Sub Team for WG discussion tomorrow, with, of course, the usual caveats such as it being still a draft under discussion and as such does not rpresent the final recommendation from the Sub Team. I note that the main text curently is that with Kathy¹s latest edits, but am not sure whether to send t out with the new annex or with the previous version that had both options.Please advise thank you! Cheers Mary Mary Wong Senior Policy Director Inernet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4889Email: mary.wong(a)icann.org From: <gnso-ppsai3-bounces(a)icann.org> on behalf o "Williams, Todd" <Todd.Williams(a)turner.com> Date: Monday, November 2, 2015 at 1:38 To: Kathy Kleiman <kathy(a)kathykleiman.com>, Darcy Southwell <darcy.southwell(a)endurance.com>, "gnso-ppsai3(a)icann.org" <gnso-ppsai3icann.org> Subject: Re: [Gnso-ppsai3] Finishing the cleanup of Annex 1 > Thans Kathy. Couple thoughts: > > · I think it¹s fine if our sub-team want to recommend to the larger WG > that we choose Option Two over Option Oe (the same way that we¹ve made other > recommendations between two possible laguage alternatives). But just to be > clear, I think it has to be couched thatway: as our recommendation. I don¹t > think we get to make the final decision to jettison one or the other, which > can only be made by te WG. > > · I still don¹t understand the ³Addition One² to Option Two. Th whole > Annex is about how to resolve two kinds of disputes: 1) disputes in wich a > Provider is alleged to have made a wrongful disclosure based on a Requestr > having provided knowingly false statements; or 2) disputes arising from > Requester¹s knowing misuse of information disclosed to it in response to is > request. That¹s what the language of III(G) refers to (³Two options for > rsolving disputes in which a Provider is alleged to have made a wrongful > disclosure based on a Requester having provided false information are outlined > in Annex 1 below.²). That¹s what the very title of the Annex refers to(³Two > options for resolving disputes arising from disclosures made as a result of > allegedly improper requests²). All of that assumes that the disclosure has > already been made. But what you¹re referring to (I think) is a situation in > which the disclosure has not yet been made, but the Customer thinks that the > Provider is about to disclose, and somehow wants to challenge that decision. That¹s a totally different issue, and I just don¹t see any way to fit that > suare peg into this round hole. Moreover, it feels like what you are > descriing is a process for Customers to appeal their Provider¹s decision to > disclse (before it has been implemented) by going to Court. But we had > language inSection III(F) of the Disclosure Framework discussing that very > issue (appeal) and intentionally took it out, for many reasons, most of which > were based on pints that had been raised in the public comments that we > reviewed. I don¹t see why we would now reinsert it (or something like it) > especially in his Annex, which by its terms only deals with what happens > after a disclosurehas been made. > > From: Kathy Kleiman [mailto:kathy@kathykleiman.com] > Sent: Monday, November 02, 2015 11:00 AM > To: Williams, Todd <Todd.Williams(a)turner.com>; Darcy Southell > <darcy.southwell(a)endurance.com>; gnso-ppsai3(a)icann.org > Subject: Finishin the cleanup of Annex 1 > > Hi All, > We have devoted so much work to the main sections of Annex E that it is right > that we devote the same fine style to Annex 1. Annex 1 is still in its > original form, I think, and ripe for the type of clarity we brought to other > sections. > > Attached is a slightly streamlined version of the draft I circulated on > Friday. Overall, I recommend that we: > a. Jettison Annex 1, Option 1. I don't think we can refer something to > arbitration when there is no arbitration mechanism for it. Creation of > arbitration system could be a whole new avenue of their own. I don't think we > are providing any policy direction for it. > > b. Update Annex 1, Option 2 with small but key changes. I have n idea what > the "seat of the Provider" is, do you? I can guess, so I draftd it with more > standard language that I think will help everyone down th line with > implementation. > > c. Interim avenues -- yes, if I file a otion to quash in my local court, > like the UDRP, I think the proceeding bfore the Provider should be suspended > until the Court rules. It's completel consistent with how we handle the UDRP > (WIPO stops processing), and it wil avoid any question of who or what takes > priority. I doubt it will be used ver often, but since Motions to Quash are > standard in the other areas, they are lkely to be used here as well. > > Basically a few key clean-ups, clarifications, and revisions, and I think we > have scrubbed Annex 1 nice and clean! > Edited document, V.2 basedon this discussion, attached. > Best, > Kathy > > On 11/2/2015 10:04 AM, Willias, Todd wrote: >> Thanks Kathy, Darcy, all. My quick thoughts on Kathy¹s points: >> >> · If we like the GoDaddy go-by language for clarification, that¹s fine. >> >> · I don¹t think we need to discuss suggested damages, and frankly don¹t >> see how we could even if we wanted to. All we¹re doing is drafting >> accreditation standards for P/P Providers. If we want to suggest as a policy >> that they include some sort of jurisdictional clause in their Terms, or in >> their isclosure Frameworks, then OK. But to then go one step further and >> tell a Court in that jurisdiction (wherever it may be) what they can or can¹t >> award either in terms of damages, or in terms of injunctive relief seems >> quite beyond our remit. Moreover, how many different types of claims might a >> wronged Customer may have in such a situation? Presumably many, depending on >> the facts of a given case. I don¹t see how we could prospectively say what >> the daages should be for each of those different claims if we don¹t know >> what the will be. >> >> · Similarly, I don¹t understand how or what we¹d have tosay in this >> document on Kathy¹s last point about a Customer taking it¹s Prvider to court >> before a disclosure takes place. Presumably Customers can ta their >> Providers to court for many reasons (and vice versa), based on the term >> outlined in their contracts. I¹m not sure how that¹s related to the P/P >> rovider¹s accreditation. Bottom line: I don¹t think there is anything more >> ranular that needs to be done on Option 2 (especially at this juncture, and >>especially if it¹s only one of two options that we end up recommending in our > Final Report). >> >> As I mentioned in my 10-28 email below, I think Steve and raeme were wanting >> us to circulate something today, before the call tomorrow. What do we as a >> sub-team think about where the documnt is now? OK to circulate? Should we >> circulate the whole thing? If s, should we highlight for the broader WG >> that the post-Dublin changes are liited to: 1) Darcy¹s language changes to >> the ³Preamble² and to I(B); 2) Secton III, which includes all of the changes >> that were discussed in our F2F in ublin (business days, new III(C)(vii), >> etc.); and 3) the Annexto the Annex? >> >> >> From: Kathy Kleiman [mailto:kathy@kathykleiman.com] > Sent: Friday, October 30, 2015 12:13 PM >> To: Williams, Todd <Todd.Williams(a)tuner.com> >> <mailto:Todd.Williams@turner.com> ; Darcy Southwell >> <darcy.outhwell(a)endurance.com> <mailto:darcy.southwell@endurance.com> ; >> gnso-ppsai3(a)cann.org >> Subject: Re: [Gnso-ppsai3] Fwd: RE: [renamed] Comments and concens about >> revisions >> >> Hi All, >> This is email #2. It has my proposed edts to Annex 1, Option 2. (Quick note: >> that like others, I have a lot of questins about Option 1 and agree that we >> need to discuss it with the WG.) >> >> ut Option 2 is a pure jurisdiction clause, which is fine. I don't think tha >> Providers have to do anything other than ensure that the right language is >> included in the filled-out materials (the Templtes) that the Provider >> submits. >> >> In terms of use of Option 2, I agre with Todd's interpretation: "if EITHER >> the Provider or the Customer lter comes to believe that the Requester made >> knowingly false statements in itsequest, or knowingly misused information >> disclosed to it in response to its rquest, then either the Provider or the >> Customer could sue the Requester in thejurisdiction at the seat of the >> Provider, and the Requester could not at tht point challenge that >> jurisdiction (though obviously they cold still challenge the underlying >> claim that they made a knowingly false sttement or misused the >> information)." >> >> But what is the "seat of the Provder?" I am not sure exactly what that >> means, so I looked up similar language [egistrants have to agree to waiver >> jurisdiction to the location of the Registars] and added it to our draft >> Annex E. I also responded to Darcy's commentswith what I hope are responsive >> thoughts. Plus a new issue - a bit of a winkle on the question of court >> cases... >> >> Annex E edited attached -- al of my edits/comments/etc are at the very end - >> last page, Annex 1, Opton 2. >> >> Best regards, >> Kathy >> p.s. if you have any trouble reading ths file, please let me know (if may be >> my word processor) >> >> >> On 10/29/2015 9:51 AM, Williams, Todd wrote: >>> Thanks Darcy. On your second question I think the answer is yes: if that is >>>the option that the WG selects (of the two), I think that is how it would >>> work. >>> >>> >> From: Darcy Southwell [mailto:darcy.southwell@endurance.com] >>> Sent: Thursday, October 29, 2015 9:39 AM >>> To: Williams, Todd <Todd.Williams(a)turner.com> >>> <mailto:Todd.Williams@turner.com> ; Kathy Kleiman <kathykathykleiman.com> >>> <mailto:kathy@kathykleiman.com> ; gnso-ppsai3(a)icann.org >>> Subject: Re: [Gnso-ppsai3] Fwd: RE: [renamed] Comments and concerns about >>> revisions >>> >>> >>> Thanks, Todd. >>> >>> >> >>> For I(B), my preference is we use ³Nothing in this document prevents a >>> Provider from.² >>> >>> >>> >>> Regarding your last bullet, if the Requester efuses to include the consent >>> in its Request, is the Provider allowed to rfuse to process the Request? >>> This consent requirement isn¹t included in he rest of the Annex. >>> >>> >>> >>> Thanks, >>> >>> Darcy >>> >>> >>> >>> From: "Williams, Todd" <Todd.Williams(a)turner.com> >>> Date: Thursday, Octobr 29, 2015 at 9:31 AM >>> To: Darcy Southwell <darcy.southwell(a)endurance.com>, Kahy Kleiman >>> <kathy(a)kathykleiman.com>, "gnso-ppsai3(a)icann.org" <gnso-ppsai3(a)cann.org> >>> Subject: RE: [Gnso-ppsai3] Fwd: RE: [renamed] Comments andconcerns about >>> revisions >>> >>> >>> >>> Great, thanks Darcy. My thougts on your points, in order: >>> >>> · Aren¹t Providers by definitio accredited: good point; good change. >>> >>> · Automation: no, that language has always applied to everybody >>> involved. >>> >>> · Choice of language to begin I(B): good point, we should pick one. I >>> don¹t hve a preference. Does anybody else? >>> >>> · On your concerns about the o options listed in A 1: agree, this >>> is still the only significant unresolved issue for the Disclosure Framework.>>> Perhaps we should plan to talk about it on the WG call on Tuesday? The only >>> answer I have to the good questions you raised is on the last one: how will >>> Providers enforce a jurisdiction selection when the contract is with the >>> Customer and not the Requester? >>> >>> Thanks! >>> >>> Todd. >>> >>> >>> Frm: Darcy Southwell [mailto:darcy.southwell@endurance.com] >>> Sent: Wednesday, ctober 28, 2015 6:35 PM >>> To: Williams, Todd <Todd.Williams(a)turner.com>; Katy Kleiman >>> <kathy(a)kathykleiman.com>; gnso-ppsai3(a)icann.org >>> Subject: Re: nso-ppsai3] Fwd: RE: [renamed] Comments and concerns about >>> revisions >>> > >>> Todd, >>> >>> >>> >>> Thanks for taking the time to make the edits thatfollow upon our F2F >>> discussion. I¹ve added a few edits and comments in the atached document. >>> >>> >>> >>> Best, >>> >>> Darcy >>> >>> >>> >>> From: <gnso-ppsai3-bounces(a)icann.org on behalf of "Williams, Todd" >>> <Todd.Williams(a)turner.com> >>> Date: Wednesday October 28, 2015 at 2:58 PM >>> To: Kathy Kleiman <kathy(a)kathykleiman.com>, "gnso-ppsai3(a)icann.org" >>> <gnso-ppsai3(a)icann.org> >>> Subject: Re: [Gnso-ppsai3] Fwd: RE: [renamed] Comments and concerns about >>> revisios >>> >>> >>> >>> Hope everybody enjoyed the rest of their time in Dublin. ¹ve attached a >>> revised draft of the Illustrative Disclosure Framework, in whih I tried to >>> capture the edits that we discussed in our face-to-face (calendar days to >>> business days, etc.). I included them all in blue so that you can easil >>> see which are new, post-Dublin (all are in Section III, which begins on pag >>> 6). If anybody wants to change any of these, or has any others that they >> want to add to capture what we discussed in the F2F, please do so. >>> >> From our public meeting on Wednesday morning in Dublin, I think that Graeme >> and Steve are wanting us to circulate this for discussion before our next WG>>> call, which will be on 11-3. >>> >>> Thanks all. >>> >>> Todd. >>> >>> >>> From:gnso-ppsai3-bounces@icann.org [mailto:gnso-ppsai3-bounces@icann.org]On >>> Behalf Of Kathy Kleiman >>> Sent: Sunday, October 04, 2015 2:31 PM >>> To:gnso-ppsai3@icann.org >>> Subject: [Gnso-ppsai3] Fwd: RE: [renamed] Comments an concerns about >>> revisions >>> >>> Hi All, >>> This version has now been assed on to the WG co-chairs and is likely to be >>> queued up for discussion ths Tuesday. >>> >>> Quick note: big remaining question is penalties (Annex 1, Option 1). Should >>> we set up a whole new arbitraton infrastructure or are there other ways to >>> create and enforce penalties fr violating the Requestor's strict >>> limitations on the use of the revealed roxied data? >>> >>> This is a huge open issues. Ideas welcome! >>> Kathy >>> >> >>> >>> >>> >>> -------- Forwarded Message -------- >>> >>> Subject RE: [Gnso-ppsai3] [renamed] Comments and concerns about revisions >>> Date: Fri 2 Oct 2015 21:35:30 +0000 >>> From: Williams, Todd <Todd.Williams(a)turner.com> >> <mailto:Todd.Williams@turner.com> >>> To: Kathy Kleiman <kathy(a)kathykleiman.om> <mailto:kathy@kathykleiman.com> , >>> gnso-ppsai3(a)icann.org <gnso-ppsai3(a)icann.org> <mailto:gnso-ppsai3@icann.org> >>> >>> >>> >>> >>> >>> >>> >>> >>> All >>> >>> Kathy called me today so that we could walk through the document, hich was >>> incredibly helpful. Thank you Kathy for that. Based on that I have>>> attached a new draft that captures the results of that call. I¹ve fagged >>> in the Comments those areas that were changed from what I sent yesterday >>> based on our call. But just to highight them for your ease of reference: >>> >>> · The language ³comply with ll applicable data protection laws while >>> retaining Customer¹s contact dtails and² was addedo II(A)(6)(b), >>> II(B)(7)(c), and II(C)(6)(b). >>> >>> · The language ³using secre communication channels² was added back to >>> III(B)(i). As I told Kathy: I don¹t have an opinion onthat language. I >>> had only removed it in what I sent yesterday to reflect the push-back >>> against it that we had received in the 9-15 and 9-29 WG calls from Graeme, >>> James, and other registrar representatives. But if we as a sub-team want to >>> put it ack in over their objection, so be it. >>> >>> · On III(C)(ii) and (iii)(which were the two provisions that were the >>> subject of my 9-29 email to Kath below): Kathy agreed to include them in >>> the draft if we changed ³a reasonabe basis for² to ³a basis for reasonably² >> in order to more precisely mirror the language from Sections II(A)(6)(a), >>> II(B)(7(a), and II(C)(6)(a) (which as I understand it was the original >>> intent beind that language). So that change has been made. >>> >>> · For II(C)(iv): again, I have no opinion on whether surrender should >>> be optionalor mandatory. My selection of optional in what I sent yesterday >>> was only o reflect the push-back against making it mandatory that we had >>> heard inthe 9-15 and 9-29 calls from the registrar representatives. But >>> Kathy asked hat we also add, as another potential formulation for the WG to >> consider, ³which all Providers must either allow or be allowed to allow.² >>> So that i what you see there. >>> >>> · We moved III(C)(vi) back to its own section in the draft yesterday >>> it had been collased into III(C)(v). >>> >>> · We also discussed whether to make a note alogside Option 1 in the >>> Annex asking how much more work the WG might ned to do on Option #1 (e.g., >>> what penalties would the arbitrator beauthorized to levy?), and how much of >>> that should instead be left to implementatin or a different PDP. We didn¹t >>> add any language per se just added a notein the comment highlighting that >>> point. >>> >>> Kathy: please correctme if any of what I said does not accurately reflect >>> what we discussed. Lok forward to hearing the thoughts from the rest of >>> the sub-team. Thans and have a good weekend. >>> >>> Todd. >>> >>> From: Williams, Todd >>> Snt: Thursday, October 01, 2015 5:52 PM >>> To: 'Kath Kleiman' <kathy(a)kathykleiman.com> <mailto:kathy@kathykleiman.com> >>> ; 'gnso-ppsai3(a)icnn.org' <gnso-ppsai3(a)icann.org> >>> <mailto:gnso-ppsai3@icann.org> >>> Subject:RE: [Gnso-ppsai3] [renamed] Comments and concerns about revisions >>> >>> Per Mry¹s latest status email (attached), I tried to revise the draft to >>> capturethe comments from our latest 9-29 call. See attached. Happy to >>> discuss. Aso happy to discuss further your concerns on III(C)(ii) and >>> (iii) Kathy, i you¹d like. >>> >>> >>> From: Williams, Todd >>> Sent: Tuesday, Septeber 29, 2015 11:42 AM >>> To: 'Kathy Kleiman' <kathy(a)kathykleiman.com>; gso-ppsai3(a)icann.org >>> Subject: RE: [Gnso-ppsai3] [renamed] Comments and conerns about revisions >>> >>> Thanks Kathy. ow that we had the WG call and you identified the specific >>> language that you were concrned about as III(C)(ii) and (iii), I¹m even >>> more confused. >>> >>> As I mntioned on the call, the two alternative formulations for III(C)(ii) >>>and (iii) were included in the WG¹s Initial Report as alternative >>> formulation for which the WG was seeking community input. See Initial >>> Report at pg. 91(attached). While many commenters opined on which of the >>> two they preferre (with more preferring the second alternative), the NSG >>> in its comment did not specify a preference for either. See: >>> http://forum.icann.org/lists/comments-ppsai-initial-05may15/pdfBoyWzlMS3q.pd >>> f. Based on that history, I don¹t understand your claim fromyour email >>> yesterday (attached) that ³I am very, very concerned about Secton III, as >>> revised, and I am very certain that NCSG and many other comenters (some >>> following NCSG) would ever have supported Annex E in this revise form.² >>> >>> >>> From: Kathy Kleiman [mailto:kathy@kathykleiman.com] >>> Sent: Tuesday, September 29, 2015 9:54 M >>> To: Williams, Todd <Todd.Williams(a)turner.com>; gnso-ppsai3(a)icann.org >>> Subject: Re: [Gnso-ppsai3] [renamed] Comments and concerns about revisions >>> >>> i Todd, >>> Looking forward to seeing you on the call! >>> Kathy >>> >>> On 9/29/2015 9:46 AM, Williams, Todd wrote: >>>> Thanks Katy. Look forward to discussing in the WG call. I guess my >>>> question was ore specific: what language has been changed in Section III >>>> as part ofthis sub-team¹s work that you think ³raises the standard for >>>> denial² in the manner that you¹ve identified? >>>> >>>> >>>> From: Kathy Kleiman [maito:kathy@kathykleiman.com] >>>> Sent: Tuesday, September 29, 2015 9:41 AM >>> To: Williams, Todd <Todd.Williams(a)turner.com> >>>> <mailto:Todd.Williams@turner.om> ; gnso-ppsai3(a)icann.org >>>> Subject: Re: [Gnso-ppsai3] [renamed] Comments nd concerns about revisions >>>> >>>> Todd, sorry for the delay. Muc happening here in DC (including tons of >>>> traffic). I am particularly concered that the standard for denial has >>>> been raised to one that requires Prviders to act as judge and jury. I am >>>> also deeply concerned about a commenthat I read that said we are giving >>>> copyright owners a bypass of the legal du process mechanisms of the DMCA. >>>> This is very troubling to me. would be inteested in your thoughts. >>>> >>>> Best, >>>> Kathy >>>> >>>> On 9/29/2015 9:16AM, Williams, Todd wrote: >>>>> >>>>> Well, I guess our sub-team will just findout on the 10:00 call with the >>>>> rest of the WG... >>>>> >>>>> >>>>>From:gnso-ppsai3-bounces@icann.org [mailto:gnso-ppsai3-bounces@icann.org] >>>>> On Behalf Of Williams, Tdd >>>>> Sent: Monday, September 28, 2015 3:47 PM >>>>> To: Kathy Kleiman <kahy(a)kathykleiman.com> <mailto:kathy@kathykleiman.com> >>>>> ; gnso-ppsai3(a)icann.or >>>>> Subject: Re: [Gnso-ppsai3] [renamed] Comments and concerns about reviions >>>>> >>>>> Thanks Kathy. Can I ask what edits to III(C) you¹re concernedabout? >>>>> >>>>> >>>>> From:gnso-ppsai3-bounces@icann.org [mailto:gnso-ppsai-bounces@icann.org] >>>>> On Behalf Of Kathy Kleiman >>>>> Sent: Monday, Septeber 28, 2015 2:09 PM >>>>> To: gnso-ppsai3(a)icann.org >>>>> Subject: Re: [Gnsoppsai3] [renamed] Comments and concerns about revisions >>>>> Importance: High >>>>> >>>>> Hi All, >>>>> Here are my response to the template as it was reviewed on riday by Sara. >>>>> Sara's comments are in red, my comments are in green (atleast according >>>>> to my screen). I will now di into Todd's comments, but I am very, very >>>>> concerned about Section III, as revised, and I am very certain that NCSG >>>>> and many other commenters (sme following NCSG) would ever have supported >>>>> Annex E in this revised form. Huge issue to dicuss - and looking forward >>>>> to doing so. >>>>> >>>>> Best, >>>>> Kathy >>>>> >>>>> ------------------------------------------------------------ >>>>> >>>>> Sara's comments in Red >>>>> Kathy's comments in Green >>>>> From: <gnso-ppsai3-bounces(a)icann.org> on behalf of Mary Wong >>>>> Date: Thursday, September 24, 2015 at 9:34 AM >>>>> To: "gnso-ppsi3(a)icann.org" >>>>> Subject: Re: [Gnso-ppsai3] PROPOSAL: Sub Team 3 call this Friay? (Re: >>>>> Follow up from WG call yesterday) >>>>> >>>>> Hello everyone, >>>> >>>>> As it looks like several Sub Team members will not be available for >>>>> Friday call, staff would like to ask if the Sub Team would prefer th >>>>> following alternative approach: >>>>> >>>>> Sub Team members to circulate to this email list their >>>>> comments/sggestions on the notes and questions from the WG call last week >>>>> by Friday 25 September, 1900 UTC. Staff will send out a draft updated >>>>> Annex E based on the Sub Team¹s input as received as of that time. Should >>>> the Sub Team wish to further discuss the updated draft on Monday, the GNSO >>>> Secretariat can assist with setting one up at a convenient time for most >>>> unfortunately, I can only be available between 1400-1500 UTC on Monday, so >>>>> if there is a call that results in further updates, I hope one of the Sub >>>>> Tam will not mind taking on that task and circulating the further revised >>>> draft to the WG before the Tuesday call. >>>>> >>>>> Alternatively, we cld still aim for a Friday call as proposed, to >>>>> discuss any input that may come in from Sub Team members up to that point. >>>>> >>>>> For your convenience, the notes and questions from the WG call last week >>>>> are reproduced again here: >>>>> >>>>> Section I.B.(iii): >>>>> - Need to discuss retaining it in some form; costs are real for providers >>>>> I support this being retained. I do too. We received comments about the >>>>> costs of the P/P services, and a real concern in keeping these services >>>>> accessible and affordable. Reasonable costs of requests, many feel should >>>>> be borne by Requesters. >>>>> >>>>> Section II: >>>>> - Should there be proision for indemnification to provider against misuse >>>>> of data? (NOTE: unlikely to gain support, so possibly no need to add) I >>>>> agree that a provision should be added and the main WG can determine if >>>>> they will support it. +1 >>>>> - 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 i.e. do they keep >>>>> data that¹s sent to them? Seems we need to clarify ³objectives². >>>>> >>>>> Limited to original request? Commenters shared their concern that a) data >>>>> can be misused by the Requester, including publication (e.g., via blog) >>>>> and harvesting (e.g., compilation of data bases). >>>>> According to comments received, we should >>>>> >>>>> a) tightly restrict use of data by Requester by contract [already agreed >>>>> to, but language should be tightened in light of comments], >>>>> b) create a jurisdiction for challenging the Requester if they violate the >>>>> terms [now part of Annex 1, but perhaps should be moved here] >>>>> c) create a wy of communicating with ICANN and other Providers if the >>>>> Requester violates the terms, >>>>> d) create a penalty sufficiently severe to deter violations (perhaps a >>>>> bond). >>>>> >>>>> The above are only a first set of ideas, but clearly we want to ensure >>>>> that the rules we adopt are binding and with real consequences for >>>>> violation. >>>>> >>>>> 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) I would not discount this one at all. There are very safe, >>>>> effective and cheap ways of transferring confidential data over the >>>>> Internet. This is actually critically important; sending personal or >>>>> sensitive information over open Internet could subject Providers to >>>>> liability. >>>>> >>>>> - 5 calendar days rather than 3 is more reasonable from providers¹ >>>>> perspective Agree. >>>>> >>>>> - saying ³encouraged" but not mandating action would nullify need for this >>>>> section B (NOTE: many people on the call agree with this, one objected) >>>>> Agree Sorry, but I don¹t see how using the word encouraged nullifies >>>>> Section B. >>>>> >>>>> - **I don¹t agree with the edits to III.C at all. The Provider is not a >>>>> court of law and should not rendering a legal opinion. The original >>>>> language was a much more accurate representation of the most of the >>>>> comments that we received; and the new language operates against many of >>>>> the ³due process² protections that thousands of commenters sought to >>>>> protect.** >>>>> >>>>> - 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) Agree; I actually think the word ³surrender² is a >>>>> pretty good and accurate one; I would keep it. I think it does need to be >>>>> clarified that a surrender is absolutely not a transfer. >>>>> >>>>> - III.C.(v) & (vi): do they overlap? Should they be merged? Leave >>>>> separate. Let¹s discuss the wording of vi. It¹s getting close, but needs >>>>> to be tweaked. >>>>> >>>>> Annex I: >>>>> - Keep both options to clarify they are two possible ways of dealing with >>>>> the issues? Yes. I think the edits as noted make sense deletion of >>>>> Option 1 and editing of Option 2 (now just Annex I) >>>>> >>>>> Please let me know what you think of these two suggestions as soon as you >>>>> can. Thank you! >>>>> >>>>> Cheers >>>>> Mary >>>>> >>>>> Mary Wong >>>>> Senior Policy Director >>>>> Internet Corporation for Assigned Names & Numbers (ICANN) >>>>> Telephone: +1 603 574 4889 >>>>> Email: mary.wong(a)icann.org >>>>> >>>>> >>>>> On 9/25/2015 10:04 PM, Mary Wong wrote: >>>>>> >>>>>> Hello Todd and everyone, thank you so much for the comments and >>>>>> suggestions. I apologize I was not able to respond earlier as I have been >>>>>> traveling back to the US from Asia. >>>>>> >>>>>> >>>>>> >>>>>> What staff will do is update the document in accordance with the comments >>>>>> provided by Sub Team members, with (where possible) notes indicating the >>>>>> transcript as noted by Todd and other specific pointers to >>>>>> reasons/justifications/further dicussions. perhaps, with that updated >>>>>> document and the approach as outlined by Todd below, the Sub Team can >>>>>> frame the specific points that merit further WG discussion on the Tuesday >>>>>> call. It will certainly be helpful to get some concrete indication from >>>>>> the WG as to how they might wish to proceed on a number of these points. >>>>>> >>>>>> >>>>>> >>>>>> 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: Friday, September 25, 2015 at 23:52 >>>>>> To: Mary Wong <mary.wong(a)icann.org>, "gnso-ppsai3(a)icann.org" >>>>>> <gnso-ppsai3(a)icann.org> >>>>>> Subject: RE: [Gnso-ppsai3] PROPOSAL: Sub Team 3 call this Friday? (Re: >>>>>> Follow up from WG call yesterday) >>>>>> >>>>>> >>>>>>> >>>>>>> Thanks Mary and thanks Sara. My thoughts on where we are as a WG after >>>>>>> going back through the transcript of the 9-15 call: >>>>>>> >>>>>>> · I(B)(iii): we didn¹t really substantively discuss this on the >>>>>>> 9-15 call. Rather, I noted as I was summarizing the document that it >>>>>>> had been removed because more commenters had opposed it than supported >>>>>>> it. Transcript at pg. 5. And then James Bladel noted at the end of the >>>>>>> call that he wanted to put a marker down for further discussion on it. >>>>>>> Transcript at 27. So I would just propose that we have that as one >>>>>>> agenda item for the call this coming Tuesday: as a WG, do we want to >>>>>>> keep I(B)(iii)? And why or why not? >>>>>>> >>>>>>> · II(A)(6)(b) (note that these same points also apply to >>>>>>> II(B)(7)(c) and II(C)(6)(b)): I would slightly reframe these as part of >>>>>>> a bigger discussion that the WG should revisit on Tuesday. >>>>>>> Specifically: we¹ve got the new language in the draft per the comments >>>>>>> from Cyberinvasion/NCSG. And several people on the call expressed >>>>>>> concerns over whether that new language was administratively feasible >>>>>>> and/or enforceable. Transcript at 8-16. So indemnification was floated >>>>>>> as one potential alternative that might address the points of both the >>>>>>> Cyberinvasion/NCSG comments AND the feasibility concerns. Transcript at >>>>>>> 11. So I think the options on the table for the WG are: 1) keep the >>>>>>> current language as is; 2) replace the current language with some sort >>>>>>> of indemnification language; or 3) replace the current language with >>>>>>> something else. I definitely think that a discussion of the pros/cons >>>>>>> of each of those three options should be another specific agenda item >>>>>>> for the call on Tuesday. But I don¹t think that we as a sub-team have >>>>>>> enough guidance/discussion from the WG yet to choose among the three >>>>>>> options ourselves. >>>>>>> >>>>>>> · III(B): >>>>>>> >>>>>>> § 5 calendar days: agree. See Transcript at 18. >>>>>>> >>>>>>> § Remove reference to secure communications as not administratively >>>>>>> feasible: agree. See Transcript at 18-19. >>>>>>> >>>>>>> § ³Shall² over ³encouraged but not required to²: agree. See Transcript >>>>>>> at 20-21. >>>>>>> >>>>>>> § I would add one additional point not included in your email below. I >>>>>>> think the agreement on the 9-15 call was that we need to go back to the >>>>>>> original formulation ³the contact information it has for Customer that >>>>>>> would ordinarily appear in the publicly accessible Whois for >>>>>>> non-proxy/privacy registration² instead of the new proposed formulation >>>>>>> ³name, mailing address, and contact information for service of process >>>>>>> that it has for Customer.² See Transcript at 19. >>>>>>> >>>>>>> · III(C)(iv): the issue here is whether this action (giving up the >>>>>>> domain name in lieu of disclosure) should be optional (as the original >>>>>>> language contemplated) or mandatory (as the new language proposed, per >>>>>>> the comments from Cyberinvasion/NCSG). And in the discussion on the >>>>>>> 9-15 call we heard from James Bladel that making it mandatory may be >>>>>>> difficult b/c not all P/P Providers are also going to be Registrars. >>>>>>> Transcript at 24. I think that¹s a good point, and on the 9-15 call >>>>>>> James Gannon seemed to express agreement that going back to optional >>>>>>> (vs. mandatory) was fine. Transcript at 24. So based on that, it looks >>>>>>> like the WG as a whole is more in support of ³optional² vs. ³mandatory² >>>>>>> for III(C)(iv), and thus that we should go back to the old language. >>>>>>> But frankly I personally don¹t have an opinion one way or the other, and >>>>>>> am happy to discuss further if the WG wants. >>>>>>> >>>>>>> · III(C)(vi): the question was raised on the 9-15 call how the new >>>>>>> III(C)(vi) differs in any way or adds anything to III(C)(v). Transcript >>>>>>> at 23. We got no answer to that question from the proponents of the new >>>>>>> III(C)(vi), and in fact James Gannon seemed to suggest that upon >>>>>>> reflection it would be fine to merge the new III(C)(vi) into III(C)(v). >>>>>>> Transcript at 24. So again, it seems like the WG as a whole is more in >>>>>>> support of either folding the new III(C)(vi) into III(C)(v) somehow, or >>>>>>> deleting it altogether. But again, I personally don¹t have an opinion >>>>>>> yet, and if the proponents of the new III(C)(vi) want to take time on >>>>>>> the call on Tuesday to answer the question that is on the table (how >>>>>>> does it add anything to III(C)(v)?), or to otherwise advocate for it, >>>>>>> that¹s fine. >>>>>>> >>>>>>> · Annex One keep both options: agree. See Transcript at 26-27. >>>>>>> >>>>>>> >>>>>>> >>>>>>> From:gnso-ppsai3-bounces@icann.org >>>>>>> [mailto:gnso-ppsai3-bounces@icann.org] On Behalf Of Mary Wong >>>>>>> Sent: Friday, September 25, 2015 4:50 AM >>>>>>> To: gnso-ppsai3(a)icann.org >>>>>>> Subject: Re: [Gnso-ppsai3] PROPOSAL: Sub Team 3 call this Friday? (Re: >>>>>>> Follow up from WG call yesterday) >>>>>>> >>>>>>> >>>>>>> Thanks much, Sara! >>>>>>> >>>>>>> >>>>>>> Everyone it will be great if you can provide your feedback as well, >>>>>>> perhaps in a similar format as Sara did if that¹s the easiest for you. >>>>>>> Staff will try to pull a revised document together as best we can with >>>>>>> whatever input we receive. >>>>>>> >>>>>>> >>>>>>> >>>>>>> I should add that I am very sorry, but due to a flight rerouting I can >>>>>>> no longer make a call on Friday 1900 UTC. Since we haven¹t heard from >>>>>>> many Sub Team members that they can do a Friday call, I¹m going to >>>>>>> suggest that staff attempt to revise the document (in the manner noted >>>>>>> above, in light of comments received by 1900 UTC on Friday). We can then >>>>>>> circulate the document to the WG on Monday, noting as we did this past >>>>>>> week for the updated proposed language for Section 1.3.2 (Sub Team 1) >>>>>>> that it Is not language that has been discussed, much less fully >>>>>>> supported, by the Sub Team. >>>>>>> >>>>>>> >>>>>>> >>>>>>> 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: Friday, September 25, 2015 at 04:48 >>>>>>> To: Mary Wong <mary.wong(a)icann.org>, "gnso-ppsai3(a)icann.org" >>>>>>> <gnso-ppsai3(a)icann.org> >>>>>>> Subject: Re: [Gnso-ppsai3] PROPOSAL: Sub Team 3 call this Friday? (Re: >>>>>>> Follow up from WG call yesterday) >>>>>>> >>>>>>> >>>>>>> >>>>>>> Mary, >>>>>>> >>>>>>> >>>>>>> >>>>>>> I¹ve provided feedback in red below. >>>>>>> >>>>>>> >>>>>>> >>>>>>> Sara >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: <gnso-ppsai3-bounces(a)icann.org> on behalf of Mary Wong >>>>>>> Date: Thursday, September 24, 2015 at 9:34 AM >>>>>>> To: "gnso-ppsai3(a)icann.org" >>>>>>> Subject: Re: [Gnso-ppsai3] PROPOSAL: Sub Team 3 call this Friday? (Re: >>>>>>> Follow up from WG call yesterday) >>>>>>> >>>>>>> >>>>>>> >>>>>>> Hello everyone, >>>>>>> >>>>>>> >>>>>>> >>>>>>> As it looks like several Sub Team members will not be available for a >>>>>>> Friday call, staff would like to ask if the Sub Team would prefer the >>>>>>> following alternative approach: >>>>>>> >>>>>>> >>>>>>> >>>>>>> Sub Team members to circulate to this email list their >>>>>>> comments/suggestions on the notes and questions from the WG call last >>>>>>> week by Friday 25 September, 1900 UTC. Staff will send out a draft >>>>>>> updated Annex E based on the Sub Team¹s input as received as of that >>>>>>> time. Should the Sub Team wish to further discuss the updated draft on >>>>>>> Monday, the GNSO Secretariat can assist with setting one up at a >>>>>>> convenient time for most unfortunately, I can only be available >>>>>>> between 1400-1500 UTC on Monday, so if there is a call that results in >>>>>>> further updates, I hope one of the Sub Team will not mind taking on that >>>>>>> task and circulating the further revised draft to the WG before the >>>>>>> Tuesday call. >>>>>>> >>>>>>> >>>>>>> >>>>>>> Alternatively, we could still aim for a Friday call as proposed, to >>>>>>> discuss any input that may come in from Sub Team members up to that >>>>>>> point. >>>>>>> >>>>>>> >>>>>>> >>>>>>> For your convenience, the notes and questions from the WG call last week >>>>>>> are reproduced again here: >>>>>>> >>>>>>> >>>>>>> >>>>>>> Section I.B.(iii): >>>>>>> >>>>>>> - Need to discuss retaining it in some form; costs are real for >>>>>>> providers I support this being retained. >>>>>>> >>>>>>> >>>>>>> >>>>>>> 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) I agree that a provision should be added and the main WG can >>>>>>> determine if they will support it. >>>>>>> >>>>>>> - 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 i.e. do they >>>>>>> keep data that¹s sent to them? Seems we need to clarify ³objectives². >>>>>>> Limited to original request? >>>>>>> >>>>>>> >>>>>>> >>>>>>> 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 providers¹ >>>>>>> perspective Agree. >>>>>>> >>>>>>> - saying ³encouraged" but not mandating action would nullify need for >>>>>>> this section B (NOTE: many people on the call agree with this, one >>>>>>> objected) Agree >>>>>>> >>>>>>> - 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) Agree >>>>>>> >>>>>>> - III.C.(v) & (vi): do they overlap? Should they be merged? Leave >>>>>>> separate. >>>>>>> >>>>>>> >>>>>>> >>>>>>> Annex I: >>>>>>> >>>>>>> - Keep both options to clarify they are two possible ways of dealing >>>>>>> with the issues? Yes. >>>>>>> >>>>>>> >>>>>>> >>>>>>> Please let me know what you think of these two suggestions as soon as >>>>>>> you can. Thank you! >>>>>>> >>>>>>> >>>>>>> >>>>>>> Cheers >>>>>>> >>>>>>> Mary >>>>>>> >>>>>>> >>>>>>> >>>>>>> Mary Wong >>>>>>> >>>>>>> Senior Policy Director >>>>>>> >>>>>>> Internet Corporation for Assigned Names & Numbers (ICANN) >>>>>>> >>>>>>> Telephone: +1 603 574 4889 >>>>>>> >>>>>>> Email: mary.wong(a)icann.org >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: <gnso-ppsai3-bounces(a)icann.org> on behalf of Kathy Kleiman >>>>>>> <kathy(a)kathykleiman.com> >>>>>>> Date: Thursday, September 24, 2015 at 23:56 >>>>>>> To: "gnso-ppsai3(a)icann.org" <gnso-ppsai3(a)icann.org> >>>>>>> Subject: Re: [Gnso-ppsai3] PROPOSAL: Sub Team 3 call this Friday? (Re: >>>>>>> Follow up from WG call yesterday) >>>>>>> >>>>>>> >>>>>>> >>>>>>> Hi Holly, >>>>>>> Were you able to attend this call? I am sorry, but I cannot see your >>>>>>> text in the email below :-(. >>>>>>> >>>>>>> As for me, I am very unlikely to be able to attend a call at this time >>>>>>> tomorrow. Can we try for Monday? >>>>>>> Best, >>>>>>> Kathy >>>>>>> >>>>>>> On 9/23/2015 9:58 PM, Holly Raiche wrote: >>>>>>> >>>>>>> >>>>>>> On 24 Sep 2015, at 5:14 am, Williams, Todd <Todd.Williams(a)turner.com> >>>>>>> wrote: >>>>>>> >>>>>>> >>>>>>> Works for me. Thanks Mary. >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: gnso-ppsai3-bounces(a)icann.org >>>>>>> [mailto:gnso-ppsai3-bounces@icann.org] On Behalf Of Mary Wong >>>>>>> Sent: Wednesday, September 23, 2015 3:10 PM >>>>>>> Cc: gnso-ppsai3(a)icann.org >>>>>>> Subject: [Gnso-ppsai3] PROPOSAL: Sub Team 3 call this Friday? (Re: >>>>>>> Follow up from WG call yesterday) >>>>>>> >>>>>>> >>>>>>> >>>>>>> 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" >>>>>>> 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] >>>>>>> Sent: Monday, September 14, 2015 3:50 PM >>>>>>> To: Williams, Todd <Todd.Williams(a)turner.com>; Mary Wong >>>>>>> <mary.wong(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 >>>>>>> >>>>>>> >>>>>>> >>>>>>> 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" >>>>>>> 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 >>>>>>> >>>>>>> ) 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] >>>>>>> Sent: Friday, September 04, 2015 4:40 PM >>>>>>> To: Williams, Todd <Todd.Williams(a)turner.com>; Mary Wong >>>>>>> <mary.wong(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 >>>>>>> <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] 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 <http://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 <http://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/pdfwOfjgYV0i >>>>>>> 9.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 >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> <Revised Illustrative Disclosure Framework for Intellectual Property >>>>>>> Righ...[2][1].docx>_______________________________________________ >>>>>>> Gnso-ppsai3 mailing list >>>>>>> Gnso-ppsai3(a)icann.org >>>>>>> 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 >>>>>>> >>>>>>> >>>>>>> _______________________________________________ >>>>>>> Gnso-ppsai3 mailing list >>>>>>> Gnso-ppsai3(a)icann.org >>>>>>> https://mm.icann.org/mailman/listinfo/gnso-ppsai3 >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> _______________________________________________ >>>>>>> Gnso-ppsai3 mailing list >>>>>>> Gnso-ppsai3@icann.orghttps://mm.icann.org/mailman/listinfo/gnso-ppsai3 >>>>>>> >>>>>>> >>>>>>> _______________________________________________ >>>>>>> Gnso-ppsai3 mailing list >>>>>>> Gnso-ppsai3(a)icann.org >>>>>>> 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

P.S. Re: [renamed] Comments and concerns about revisions
by Mary Wong Oct. 3, 2015

Oct. 3, 2015

Helo again everyone, just to note that the WG chairs have also asked if itwill be at all possible to send a version of the updated document tomorrow (Satrday), and in any event before Monday. Again, just let me know thank you ll, and have a good weekend! Cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 03 574 4889 Email: mary.wong(a)icann.org From: Mary Wong <mary.wong(a)icann.org> ate: Friday, October 2, 2015 at 18:38 To: Kathy Kleiman <kathy(a)kathykleiman.co Cc: "Williams, Toddodd.Williams(a)turner.com>, "gnso-ppsai3(a)icann.org" <gnso-ppsai3(a)icann.org> Subject: Re: [Gnso-ppsa3] [renamed] Comments and concerns abou revisions > Thanks, Kathy and Todd! Just wondering if it's ok to send this version to the > WG with the usul caveats. As we're also expecting a document from sub team 4 > my concern is that sending both on Monday night mean people have little time > to review either. Please advise - thanks! > > Cheers > Mary > > Sent from my iPhone > > On Oct 2, 2015, at 18:1, Kathy Kleiman <kathy(a)kathykleiman.com> wrote: > >> Hi All, >> Tx to Todd forhis time and notes! I look forward to reviewing the draft, as >> I hope you wll. One quick note below... : >>> All: >>> >>> Kathy called me today so thawe could walk through the document, which was >>> incredibly helpful. Thank youathy for that. Based on that I have >>> attached a new draft that captures the rsults of that call. I¹ve flagged >>> in the Comments those areas that were changd from what I sent yesterday >>> based on our call. But just to highlight them for your ease of reference: >>> >> · The language ³comply with all applicable data protection laws while >>>retaining Customer¹s contact details and² was added to II(A)(6)(b), >>> II(B)(7)(c), and II(C)(6)(b). >> ==> this is an "add back." it was in the immediately prior versions (and the >> one we reviewed together on Tuesdy), but removed due to something I said. >> Since I was referring to other partsof the subsection, but not this one, >> Todd and I added it back in. >>> · he language ³using secure communication channels² was added back to >>> III(B)(i). As I told Kathy: I don¹t have an opinion on that language. I >>> had only removed t in what I sent yesterday to reflect the push-back >>> against it that we had rceived in the 9-15 and 9-29 WG calls from Graeme, >>> James, and other registrar epresentatives. But if we as a sub-team want to >>> put it back in over teir objection, so be it. >>> >>> · On III(C)(ii) and (iii) (which were th two provisions that were the >>> subject of my 9-29 email to Kathy below): Kahy agreed to include them in >>> the draft if we changed ³a reasonable basis fo² to ³a basis for reasonably² >>> in order to more precisely mirror the languae from Sections II(A)(6)(a), >>> II(B)(7)(a), and II(C)(6)(a) (which as I understnd it was the original >>> intent behind that language). So that change has ben made. >>> >>> · For III(C)(iv): again, I have no opinion on whether srrender should >>> be optional or mandatory. My selection of optional in what Isent yesterday >>> was only to reflect the push-back against making it mandatory that we had >>> heard in the 9-15 and 9-29 calls rom the registrar representatives. But >>> Kathy asked that we also add, as anther potential formulation for the WG to >>> consider, ³which all Providers mut either allow or be allowed to allow.² >>> So that is what you see there. >>> >> · We moved III(C)(vi) back to its own section in the draft yesteday >>> it had been collapsed into III(C)(v). >>> >>> · We also discussedwhether to make a note alongside Option 1 in the >>> Annex asking how much more ork the WG might need to do on Option #1 (e.g., >>> what penalties would the abitrator be authorized to levy?), and how much of >>> that should instead be left to implementation or a different PDP. We didn¹t >>> add any language per se just dded a note in the comment highlighting that >>> point. >> >> Best and have good weekend, >> Kathy >> >>> Kathy: please correct me if any of what I said dos not accurately reflect >>> what we discussed. Look forward to hearingthe thoughts from the rest of >>> the sub-team. Thanks and have a good weekend. >>> >>> Todd. >>> >>> From: Williams, Tdd >>> Sent: Thursday, October 01, 2015 5:52 PM >>> To: 'Kathy Kleiman' <kathy(a)kahykleiman.com> <mailto:kathy@kathykleiman.com> >>> ; 'gnso-ppsai3(a)icann.org <gnso-ppsai3(a)icann.g> >>> <mailto:gnso-ppsai3@icann.org> >>> Subject: RE: [Gnso-ppsai3] [renamed] Comments an concerns about revisions >>> >>> PerMary¹s latest status email (attached), I tried to revise the draft to >>> capture the comments from our latest 929 call. See attached. Happy to >>> discuss. Also happy to discuss frther your concerns on III(C)(ii) and >>> (iii) Kathy, if you¹d like. >>> >>> >>> From: Williams, Todd >>> Sent: Tuesday, September 29, 2015 11:42 AM >>> To: 'Kathy Kleiman' <kathy(a)kathykleiman.com>; gnso-ppsai3(a)icann.org >> Subject: RE: [Gnso-ppsai3] [renamed] Comments and concerns about revisions >> >>> Thanks Kathy. Now that we had the WG call and you identified the specific>>> language that you were concerned about as III(C)(ii) and (iii), I¹m even >>>more confused. >>> >>> As I mentioned n the call, the two alternative formulations for III(C)(ii) >>> and (iii) were included n the WG¹s Initial Report as alternative >>> formulations for which the WG wa seeking community input. See Initial >>> Report at pg. 91 (attached). hile many commenters opined on which of the >>> two they preferred (with morepreferring the second alternative), the NCSG >>> in its comment did not specif a preference for either. See: >>> <http://forum.icann.org/lists/comments-psai-initial-05may15/pdfBoyWzlMS3q.p >>> df> >>> http://forum.icann.org/lists/coments-ppsai-initial-05may15/pdfBoyWzlMS3q.pd >>> f. Based on tha history, I don¹t understand your claim from your email >>> yesterday (attached) that ³I a very, very concerned about Section II, as >>> revised, and I am very certain that NCSG and many other commenters (some >>> folowing NCSG) would ever have supported Annex E in this revised form.² >>> >>> >>> From: Kathy Kleiman [mailto:kathy@kathykleiman.com] >>> Sent: Tuesda, September 29, 2015 9:54 AM >>> To: Williams, Todd <Todd.Williams(a)turnr.com>; gnso-ppsai3(a)icann.org >>> Subject: Re: [Gnso-ppsai3] [renamed] Comments and cncerns about revisions >>> >>> Hi Todd, >>> Looking forward to seeing you on he call! >>> Kathy >>> >>> On 9/29/2015 9:46 AM, Williams, Todd wrote: >>> Thanks Kathy. Look forward to discussing in the WG call. I guess my >>>> qestion was more specific: what language has been changed in Section III >>> as part of this sub-team¹s work that you think ³raises the standard for >>>> enial² in the manner that you¹ve identified? >>>> >>> >>>> From: Kathy Kleiman [mailto:kathy@kathykleiman.com] >>>> Sent: Tuesday, Septemer 29, 2015 9:41 AM >>>> To: Williams, Todd <Todd.Williams(a)turner.com> >>>> <malto:Todd.Williams@turner.com> ; gnso-ppsai3(a)icann.org >>>> Subject: Re: [Gnso-ppsi3] [renamed] Comments and concerns about revisions >>>> >>>> Todd, sorry forthe delay. Much happening here in DC (including tons of >>>> traffic). I am paricularly concerned that the standard for denial has >>>> been raised to one tht requires Providers to act as judge and jury. I am >>>> also deeply concrned about a comment that I read that said we are giving >>>> copyright oners a bypass of the legal due process mechanisms of the DMCA. >>>> This is vry troubling to me. would be interested in you thoughts. >>>> >>>> Best, >>>> Kathy >>>> >>>> On 9/29/2015 9:16 AM, Williams, Todd wroe: >>>>> >>>>> Well, I guess our sub-team will just find out on the 10:00 call wth the >>>>> rest of the WG... >>>>> >>>>> >>>>> From:gnso-ppsai3-bonces@icann.org [mailto:gnso-ppsai3-bounces@icann.org] >>>>> On Behalf Of Williams Todd >>>>> Sent: Monday, September 28, 2015 3:47 PM >>>>> To: Kathy Kleiman <kahy(a)kathykleiman.com> <mailto:kathy@kathykleiman.com> >>>>> ; gnso-ppsai3(a)icann.rg >>>>> Subject: Re: [Gnso-ppsai3] [renamed] Comment and concerns about revisions >>>>> >>>>> Thanks Kathy. Can I ask what edits to III(C) you¹re concerned about? >>>>> >>>>> >>>>> From:gnso-ppsai3-bounces@icann.org [mailto:gnso-ppsai3-bounces@icann.org] >>>>> n Behalf Of Kathy Kleiman >>>>> Sent: Monday, September 28, 2015 2:09 PM >>>>>To: gnso-ppsai3(a)icann.org >>>>> Subject: Re: [Gnso-ppsai3] [renamed] Commets and concerns about revisions >>>>> Importance: High >>>>> >>>>> Hi All, >>>> Here are my response to the template as it was reviewed on Friday by Sara. >>>>> Sara's comments are in red, my commets are in green (at least according >>>>> to my screen). I will now dive into Todd's comments, but I am very, very >>>>> concerned about Section III, as revised, an I am very certain that NCSG >>>>> and many other commenters (some following NCSG) would ever have supported >>>>> Annex E in this reised form. Huge issue to discuss - and looking forward >>>>> to doing so. >>>> >>>>> Best, >>>>> Kathy >>>>> >>>>> ----------------------------------------------------------- >>>>> >>>>> Sara's comments in Red >>>>> Kathy's comments in Green >>>>> From: <gnso-ppsai3-bounces(a)icann.org> on behalf of Mar Wong >>>>> Date: Thursday, September 24, 2015 at 9:34 AM >>>>> To: "gnso-ppsi3(a)icann.org" >>>>> Subject: Re: [Gnso-ppsai3] PROPOSAL: Sub Team 3 call this Friay? (Re: >>>>> Follow up from WG call yesterday) >>>>> >>>>> Hello everyone, >>>> >>>>> As it looks like several Sub Team members will not be avalable for a >>>>> Friday call, staff would like to ask if the Sub Team would prefr the >>>>> following alternative approach: >>>>> >>>>> Sub Team members t circulate to this email list their >>>>> comments/suggestions on the notes and estions from the WG call last week >>>>> by Friday 25 September, 1900 UTC. Staff ill send out a draft updated >>>>> Annex E based on the Sub Team¹s input as receied as of that time. Should >>>>> the Sub Team wish to further discuss the update draft on Monday, the GNSO >>>>> Secretariat can assist with setting one up at aconvenient time for most >>>>> unfortunately, I can only be available betwen 1400-1500 UTC on Monday, so >>>>> if there is a call that results in further updates, I hope one of te Sub >>>>> Team will not mind taking on that task and circulating the furthe revised >>>>> draft to the WG before the Tuesday call. >>>>> >>>>> Alternativey, we could still aim for a Friday call as proposed, to >>>>> discuss any inut that may come in from Sub Team members up to that point. >>>>> >>>>> For you convenience, the notes and questions from the WG call last week >>>>> are reprodced again here: >>>>> >>>>> Section I.B.(iii): >>>>> - Need to discuss retaiing it in some form; costs are real for providers >>>>> I support this being etained. I do too. We received comments about the >>>>> costs of the P/P services, and a real concern in keeping these services >>>>> accessible and affordable. Reasnable costs of requests, many feel should >>>>> be borne by Requesters. >>>>> >>>>> Section II: >>>>> - Should there be provin for indemnification to provider against misuse >>>>> of data? (NOTE: unlikely to gain support, so possibly no need to add) I >>>>> agree that a provision should be added and the main WG can determine if >>>>> they will support it. +1 >>>>> - A(6)(b)(i): can a requester under the new wording keep/use the data to >>>>> assocate with other information about th registrant e.g. for future or >>>>> other requests? Does reverse apply to regisrar/provider i.e. do they keep >>>>> data that¹s sent to them? Seems we need to clarify ³objectives². >>>>> >>>>> Limited to original request? Commenters shared their concern that a) data >>>>> can be misused by the Requester, including publication (e.g., via blog) >>>>> and harvesting (e.g., compilation of dat bases). >>>>> According to comments received, we should >>>>> >>>>> a) tightly estrict use of data by Requester by contract [already agreed >>>>> to, but langage should be tightened in light of comments], >>>>> b) create a jurisdiction forchallenging the Requester if they violate the >>>>> terms [now part of Anne 1, but perhaps should be moved here] >>>>> c) create a way of communicating with ICANN and other Providers if the >>>>> Reqester violates the terms, >>>>> d) create a penalty sufficiently severe to deter violations (perhaps a >>>>> bond). >>>>> >>>>> The above are only a first set of ideas, but clearly we want to ensure >>>>> that the rules e adopt are binding and with real consequences for >>>>> violation. >>>>> >>>> Section III: >>>>> - III.B: Secure communications may not be as easily or redily done as >>>>> might be desired (so revision is well-intended but maybe not entirely >>>>> practical) I would not discount this one at all. There are very safe, >>>> effective and cheap ways of transferring confidential data over the >>>> Internet. This is actually critically important; sending personal or >>>>>ensitive information over open Internet could subject Providers to >>>>> liability. >>>>> >>>>> - 5 calendar days rather than 3 is more reasonable from providers¹ >>>>> perspective Agree. >>>>> >>>>> - saying ³encouraged" but not mandating action would nullify need for this >>>>> section B (NOTE: many people on the call agree with this, one objected) >>>>> Agree Sorry, but I don¹t see how using the word encouraged nullifies >>>>> Section B. >>>>> >>>>> - **I don¹t agree with the edits to III.C at all. The Provider is not a >>>>> court of law and should not rendering a legal opinion. The original >>>>> language was a much moe accurate representation of the most of the >>>>> comments that we received; and the new language operates against many of >>>>> the ³due process² protections that thousands of commenters sought to >>>>> protect.** >>>>> >>>>> -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 tha previous WG >>>>> discussions had led to agreement to NOT make it mandatory due to varying >>>>> provider practices) Agree; I actually think the word ³surrender² is a >>>>> pretty good and accurate one; I would keep it. I think it does need to be >>>>> clarified that a surrender is absoltely not a transfer. >>>>> >>>>> - III.C.(v) & (vi): do they overlap? Should they be merged? Leave >>>>> separate. Let¹s discuss the wording of vi. It¹s getting close, but needs >>>>> to be tweaked. >>>>> >>>>> Annex I: >>>>> - Keep both options to clarify they are two possible ways of dealing with >>>>> the issues? Yes. I think the edits as noted make sense deletion of >>>>> Option 1 and editing of Option 2 (now just Annex I) >>>>> >>>>> Please let me know what you think of these two suggestions as soon as you >>>>> can. Thank you! >>>>> >>>>> Cheers >>>>> Mary >>>>> >>>>> Mary Wong >>>>> Senior Policy Director >>>>> Internet Corporation for Assigned Names & Numbers (ICANN) >>>>> Telephone: +1 603 574 4889 >>>>> Email: mary.wong(a)icann.org >>>>> >>>>> >>>>> On 9/25/2015 10:04 PM, Mary Wong wrote: >>>>>> >>>>>> Hello Todd and everyone, thank you so much for the comments and >>>>>> suggestions. I apologize I was not able to respond earlier as I have been >>>>>> traveling back to the US from Asia. >>>>>> >>>>>> >>>>>> >>>>>> What staff will do is update the document in accordance with the comments >>>>>> provided by Sub Team members, with (where possible) notes indicating the >>>>>> transcript as noted by Todd and other specific pointers to >>>>>> reasons/justifications/further dicussions. perhaps, with that updated >>>>>> document and the approach as outlined by Todd below, the Sub Team can >>>>>> frame the specific points that merit further WG discussion on the Tuesday >>>>>> call. It will certainly be helpful to get some concrete indication from >>>>>> the WG as to how they might wish to proceed on a number of these points. >>>>>> >>>>>> >>>>>> >>>>>> 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: Friday, September 25, 2015 at 23:52 >>>>>> To: Mary Wong <mary.wong(a)icann.org>, "gnso-ppsai3(a)icann.org" >>>>>> <gnso-ppsai3(a)icann.org> >>>>>> Subject: RE: [Gnso-ppsai3] PROPOSAL: Sub Team 3 call this Friday? (Re: >>>>>> Follow up from WG call yesterday) >>>>>> >>>>>> >>>>>>> >>>>>>> Thanks Mary and thanks Sara. My thoughts on where we are as a WG after >>>>>>> going back through the transcript of the 9-15 call: >>>>>>> >>>>>>> · I(B)(iii): we didn¹t really substantively discuss this on the >>>>>>> 9-15 call. Rather, I noted as I was summarizing the document that it >>>>>>> had been removed because more commenters had opposed it than supported >>>>>>> it. Transcript at pg. 5. And then James Bladel noted at the end of the >>>>>>> call that he wanted to put a marker down for further discussion on it. >>>>>>> Transcript at 27. So I would just propose that we have that as one >>>>>>> agenda item for the call this coming Tuesday: as a WG, do we want to >>>>>>> keep I(B)(iii)? And why or why not? >>>>>>> >>>>>>> · II(A)(6)(b) (note that these same points also apply to >>>>>>> II(B)(7)(c) and II(C)(6)(b)): I would slightly reframe these as part of >>>>>>> a bigger discussion that the WG should revisit on Tuesday. >>>>>>> Specifically: we¹ve got the new language in the draft per the comments >>>>>>> from Cyberinvasion/NCSG. And several people on the call expressed >>>>>>> concerns over whether that new language was administratively feasible >>>>>>> and/or enforceable. Transcript at 8-16. So indemnification was floated >>>>>>> as one potential alternative that might address the points of both the >>>>>>> Cyberinvasion/NCSG comments AND the feasibility concerns. Transcript at >>>>>>> 11. So I think the options on the table for the WG are: 1) keep the >>>>>>> current language as is; 2) replace the current language with some sort >>>>>>> of indemnification language; or 3) replace the current language with >>>>>>> something else. I definitely think that a discussion of the pros/cons >>>>>>> of each of those three options should be another specific agenda item >>>>>>> for the call on Tuesday. But I don¹t think that we as a sub-team have >>>>>>> enough guidance/discussion from the WG yet to choose among the three >>>>>>> options ourselves. >>>>>>> >>>>>>> · III(B): >>>>>>> >>>>>>> § 5 calendar days: agree. See Transcript at 18. >>>>>>> >>>>>>> § Remove reference to secure communications as not administratively >>>>>>> feasible: agree. See Transcript at 18-19. >>>>>>> >>>>>>> § ³Shall² over ³encouraged but not required to²: agree. See Transcript >>>>>>> at 20-21. >>>>>>> >>>>>>> § I would add one additional point not included in your email below. I >>>>>>> think the agreement on the 9-15 call was that we need to go back to the >>>>>>> original formulation ³the contact information it has for Customer that >>>>>>> would ordinarily appear in the publicly accessible Whois for >>>>>>> non-proxy/privacy registration² instead of the new proposed formulation >>>>>>> ³name, mailing address, and contact information for service of process >>>>>>> that it has for Customer.² See Transcript at 19. >>>>>>> >>>>>>> · III(C)(iv): the issue here is whether this action (giving up the >>>>>>> domain name in lieu of disclosure) should be optional (as the original >>>>>>> language contemplated) or mandatory (as the new language proposed, per >>>>>>> the comments from Cyberinvasion/NCSG). And in the discussion on the >>>>>>> 9-15 call we heard from James Bladel that making it mandatory may be >>>>>>> difficult b/c not all P/P Providers are also going to be Registrars. >>>>>>> Transcript at 24. I think that¹s a good point, and on the 9-15 call >>>>>>> James Gannon seemed to express agreement that going back to optional >>>>>>> (vs. mandatory) was fine. Transcript at 24. So based on that, it looks >>>>>>> like the WG as a whole is more in support of ³optional² vs. ³mandatory² >>>>>>> for III(C)(iv), and thus that we should go back to the old language. >>>>>>> But frankly I personally don¹t have an opinion one way or the other, and >>>>>>> am happy to discuss further if the WG wants. >>>>>>> >>>>>>> · III(C)(vi): the question was raised on the 9-15 call how the new >>>>>>> III(C)(vi) differs in any way or adds anything to III(C)(v). Transcript >>>>>>> at 23. We got no answer to that question from the proponents of the new >>>>>>> III(C)(vi), and in fact James Gannon seemed to suggest that upon >>>>>>> reflection it would be fine to merge the new III(C)(vi) into III(C)(v). >>>>>>> Transcript at 24. So again, it seems like the WG as a whole is more in >>>>>>> support of either folding the new III(C)(vi) into III(C)(v) somehow, or >>>>>>> deleting it altogether. But again, I personally don¹t have an opinion >>>>>>> yet, and if the proponents of the new III(C)(vi) want to take time on >>>>>>> the call on Tuesday to answer the question that is on the table (how >>>>>>> does it add anything to III(C)(v)?), or to otherwise advocate for it, >>>>>>> that¹s fine. >>>>>>> >>>>>>> · Annex One keep both options: agree. See Transcript at 26-27. >>>>>>> >>>>>>> >>>>>>> >>>>>>> From:gnso-ppsai3-bounces@icann.org >>>>>>> [mailto:gnso-ppsai3-bounces@icann.org] On Behalf Of Mary Wong >>>>>>> Sent: Friday, September 25, 2015 4:50 AM >>>>>>> To: gnso-ppsai3(a)icann.org >>>>>>> Subject: Re: [Gnso-ppsai3] PROPOSAL: Sub Team 3 call this Friday? (Re: >>>>>>> Follow up from WG call yesterday) >>>>>>> >>>>>>> >>>>>>> Thanks much, Sara! >>>>>>> >>>>>>> >>>>>>> Everyone it will be great if you can provide your feedback as well, >>>>>>> perhaps in a similar format as Sara did if that¹s the easiest for you. >>>>>>> Staff will try to pull a revised document together as best we can with >>>>>>> whatever input we receive. >>>>>>> >>>>>>> >>>>>>> >>>>>>> I should add that I am very sorry, but due to a flight rerouting I can >>>>>>> no longer make a call on Friday 1900 UTC. Since we haven¹t heard from >>>>>>> many Sub Team members that they can do a Friday call, I¹m going to >>>>>>> suggest that staff attempt to revise the document (in the manner noted >>>>>>> above, in light of comments received by 1900 UTC on Friday). We can then >>>>>>> circulate the document to the WG on Monday, noting as we did this past >>>>>>> week for the updated proposed language for Section 1.3.2 (Sub Team 1) >>>>>>> that it Is not language that has been discussed, much less fully >>>>>>> supported, by the Sub Team. >>>>>>> >>>>>>> >>>>>>> >>>>>>> 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: Friday, September 25, 2015 at 04:48 >>>>>>> To: Mary Wong < <mailto:mary.wong@icann.org> mary.wong(a)icann.org>, >>>>>>> "gnso-ppsai3(a)icann.org" <gnso-ppsai3(a)icann.org> >>>>>>> Subject: Re: [Gnso-ppsai3] PROPOSAL: Sub Team 3 call this Friday? (Re: >>>>>>> Follow up from WG call yesterday) >>>>>>> >>>>>>> >>>>>>> >>>>>>> Mary, >>>>>>> >>>>>>> >>>>>>> >>>>>>> I¹ve provided feedback in red below. >>>>>>> >>>>>>> >>>>>>> >>>>>>> Sara >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: <gnso-ppsai3-bounces(a)icann.org> on behalf of Mary Wong >>>>>>> Date: Thursday, September 24, 2015 at 9:34 AM >>>>>>> To: "gnso-ppsai3(a)icann.org" >>>>>>> Subject: Re: [Gnso-ppsai3] PROPOSAL: Sub Team 3 call this Friday? (Re: >>>>>>> Follow up from WG call yesterday) >>>>>>> >>>>>>> >>>>>>> >>>>>>> Hello everyone, >>>>>>> >>>>>>> >>>>>>> >>>>>>> As it looks like several Sub Team members will not be available for a >>>>>>> Friday call, staff would like to ask if the Sub Team would prefer the >>>>>>> following alternative approach: >>>>>>> >>>>>>> >>>>>>> >>>>>>> Sub Team members to circulate to this email list their >>>>>>> comments/suggestions on the notes and questions from the WG call last >>>>>>> week by Friday 25 September, 1900 UTC. Staff will send out a draft >>>>>>> updated Annex E based on the Sub Team¹s input as received as of that >>>>>>> time. Should the Sub Team wish to further discuss the updated draft on >>>>>>> Monday, the GNSO Secretariat can assist with setting one up at a >>>>>>> convenient time for most unfortunately, I can only be available >>>>>>> between 1400-1500 UTC on Monday, so if there is a call that results in >>>>>>> further updates, I hope one of the Sub Team will not mind taking on that >>>>>>> task and circulating the further revised draft to the WG before the >>>>>>> Tuesday call. >>>>>>> >>>>>>> >>>>>>> >>>>>>> Alternatively, we could still aim for a Friday call as proposed, to >>>>>>> discuss any input that may come in from Sub Team members up to that >>>>>>> point. >>>>>>> >>>>>>> >>>>>>> >>>>>>> For your convenience, the notes and questions from the WG call last week >>>>>>> are reproduced again here: >>>>>>> >>>>>>> >>>>>>> >>>>>>> Section I.B.(iii): >>>>>>> >>>>>>> - Need to discuss retaining it in some form; costs are real for >>>>>>> providers I support this being retained. >>>>>>> >>>>>>> >>>>>>> >>>>>>> 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) I agree that a provision should be added and the main WG can >>>>>>> determine if they will support it. >>>>>>> >>>>>>> - 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 i.e. do they >>>>>>> keep data that¹s sent to them? Seems we need to clarify ³objectives². >>>>>>> Limited to original request? >>>>>>> >>>>>>> >>>>>>> >>>>>>> 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 providers¹ >>>>>>> perspective Agree. >>>>>>> >>>>>>> - saying ³encouraged" but not mandating action would nullify need for >>>>>>> this section B (NOTE: many people on the call agree with this, one >>>>>>> objected) Agree >>>>>>> >>>>>>> - 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) Agree >>>>>>> >>>>>>> - III.C.(v) & (vi): do they overlap? Should they be merged? Leave >>>>>>> separate. >>>>>>> >>>>>>> >>>>>>> >>>>>>> Annex I: >>>>>>> >>>>>>> - Keep both options to clarify they are two possible ways of dealing >>>>>>> with the issues? Yes. >>>>>>> >>>>>>> >>>>>>> >>>>>>> Please let me know what you think of these two suggestions as soon as >>>>>>> you can. Thank you! >>>>>>> >>>>>>> >>>>>>> >>>>>>> Cheers >>>>>>> >>>>>>> Mary >>>>>>> >>>>>>> >>>>>>> >>>>>>> Mary Wong >>>>>>> >>>>>>> Senior Policy Director >>>>>>> >>>>>>> Internet Corporation for Assigned Names & Numbers (ICANN) >>>>>>> >>>>>>> Telephone: +1 603 574 4889 >>>>>>> >>>>>>> Email: mary.wong(a)icann.org >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: <gnso-ppsai3-bounces(a)icann.org> on behalf of Kathy Kleiman < >>>>>>> <mailto:kathy@kathykleiman.com> kathy(a)kathykleiman.com> >>>>>>> Date: Thursday, September 24, 2015 at 23:56 >>>>>>> To: " <mailto:gnso-ppsai3@icann.org> gnso-ppsai3(a)icann.org" >>>>>>> <gnso-ppsai3(a)icann.org> >>>>>>> Subject: Re: [Gnso-ppsai3] PROPOSAL: Sub Team 3 call this Friday? (Re: >>>>>>> Follow up from WG call yesterday) >>>>>>> >>>>>>> >>>>>>> >>>>>>> Hi Holly, >>>>>>> Were you able to attend this call? I am sorry, but I cannot see your >>>>>>> text in the email below :-(. >>>>>>> >>>>>>> As for me, I am very unlikely to be able to attend a call at this time >>>>>>> tomorrow. Can we try for Monday? >>>>>>> Best, >>>>>>> Kathy >>>>>>> >>>>>>> On 9/23/2015 9:58 PM, Holly Raiche wrote: >>>>>>> >>>>>>> >>>>>>> On 24 Sep 2015, at 5:14 am, Williams, Todd < >>>>>>> <mailto:Todd.Williams@turner.com> Todd.Williams(a)turner.com> wrote: >>>>>>> >>>>>>> >>>>>>> Works for me. Thanks Mary. >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: gnso-ppsai3-bounces(a)icann.org >>>>>>> [mailto:gnso-ppsai3-bounces@icann.org] On Behalf Of Mary Wong >>>>>>> Sent: Wednesday, September 23, 2015 3:10 PM >>>>>>> Cc: <mailto:gnso-ppsai3@icann.org> gnso-ppsai3(a)icann.org >>>>>>> Subject: [Gnso-ppsai3] PROPOSAL: Sub Team 3 call this Friday? (Re: >>>>>>> Follow up from WG call yesterday) >>>>>>> >>>>>>> >>>>>>> >>>>>>> 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: <mailto:mary.wong@icann.org> mary.wong(a)icann.org >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: Mary Wong < <mailto:mary.wong@icann.org> mary.wong(a)icann.org> >>>>>>> Date: Tuesday, September 22, 2015 at 23:12 >>>>>>> Cc: " <mailto:gnso-ppsai3@icann.org> gnso-ppsai3(a)icann.org" < >>>>>>> <mailto:gnso-ppsai3@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: <mailto:mary.wong@icann.org> mary.wong(a)icann.org >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: "Williams, Todd" < <mailto:Todd.Williams@turner.com> >>>>>>> Todd.Williams(a)turner.com> >>>>>>> Date: Tuesday, September 22, 2015 at 23:00 >>>>>>> To: Mary Wong < <mailto:mary.wong@icann.org> mary.wong(a)icann.org> >>>>>>> Cc: " <mailto:gnso-ppsai3@icann.org> gnso-ppsai3(a)icann.org" < >>>>>>> <mailto:gnso-ppsai3@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: <mailto:mary.wong@icann.org> mary.wong(a)icann.org >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: Mary Wong < <mailto:mary.wong@icann.org> mary.wong(a)icann.org> >>>>>>> Date: Wednesday, September 16, 2015 at 16:27 >>>>>>> Cc: " <mailto:gnso-ppsai3@icann.org> gnso-ppsai3(a)icann.org" < >>>>>>> <mailto:gnso-ppsai3@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: <mailto:mary.wong@icann.org> mary.wong(a)icann.org >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: "Williams, Todd" < <mailto:Todd.Williams@turner.com> >>>>>>> Todd.Williams(a)turner.com> >>>>>>> Date: Tuesday, September 15, 2015 at 21:19 >>>>>>> To: Holly Raiche < <mailto:h.raiche@internode.on.net> >>>>>>> h.raiche(a)internode.on.net>, Mary Wong < <mailto:mary.wong@icann.org> >>>>>>> mary.wong(a)icann.org> >>>>>>> Cc: " <mailto:gnso-ppsai3@icann.org> gnso-ppsai3(a)icann.org" < >>>>>>> <mailto:gnso-ppsai3@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: <mailto:gnso-ppsai3-bounces@icann.org> >>>>>>> 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 < <mailto:mary.wong@icann.org> 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 < <mailto:mary.wong@icann.org> >>>>>>> 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: <mailto:mary.wong@icann.org> mary.wong(a)icann.org >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: Holly Raiche < <mailto:h.raiche@internode.on.net> >>>>>>> h.raiche(a)internode.on.net> >>>>>>> Date: Tuesday, September 15, 2015 at 20:18 >>>>>>> To: Mary Wong < <mailto:mary.wong@icann.org> mary.wong(a)icann.org>, " >>>>>>> <mailto:gnso-ppsai3@icann.org> gnso-ppsai3(a)icann.org" < >>>>>>> <mailto:gnso-ppsai3@icann.org> gnso-ppsai3(a)icann.org> >>>>>>> Cc: "Williams, Todd" < <mailto:Todd.Williams@turner.com> >>>>>>> Todd.Williams(a)turner.com>, Sara Bockey < <mailto:sbockey@godaddy.com> >>>>>>> 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 < <mailto:sbockey@godaddy.com> >>>>>>> sbockey(a)godaddy.com> wrote: >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> Thanks, Todd. >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: "Williams, Todd" >>>>>>> Date: Monday, September 14, 2015 at 1:18 PM >>>>>>> To: Sara Bockey, Mary Wong, " <mailto:gnso-ppsai3@icann.org> >>>>>>> gnso-ppsai3(a)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 < <mailto:Todd.Williams@turner.com> >>>>>>> Todd.Williams(a)turner.com>; Mary Wong < <mailto:mary.wong@icann.org> >>>>>>> mary.wong(a)icann.org>; gnso-ppsai3(a)icann.org >>>>>>> Cc: Sara Bockey < <mailto:sbockey@godaddy.com> sbockey(a)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, " <mailto:gnso-ppsai3@icann.org> >>>>>>> gnso-ppsai3(a)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/pdfBoyWzlMS >>>>>>> 3q.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 < <mailto:Todd.Williams@turner.com> >>>>>>> Todd.Williams(a)turner.com>; Mary Wong < <mailto:mary.wong@icann.org> >>>>>>> mary.wong(a)icann.org>; gnso-ppsai3(a)icann.org >>>>>>> Cc: Sara Bockey < <mailto:sbockey@godaddy.com> 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, " <mailto:gnso-ppsai3@icann.org> 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 >>>>>>> <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: <mailto:gnso-ppsai3-bounces@icann.org> >>>>>>> gnso-ppsai3-bounces(a)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: <mailto:mary.wong@icann.org> mary.wong(a)icann.org >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: Mary Wong < <mailto:mary.wong@icann.org> mary.wong(a)icann.org> >>>>>>> Date: Monday, August 31, 2015 at 15:46 >>>>>>> To: " <mailto:gnso-ppsai3@icann.org> gnso-ppsai3(a)icann.org" < >>>>>>> <mailto:gnso-ppsai3@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: <mailto:mary.wong@icann.org> mary.wong(a)icann.org >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: <gnso-ppsai3-bounces(a)icann.org> on behalf of "Williams, Todd" < >>>>>>> <mailto:Todd.Williams@turner.com> Todd.Williams(a)turner.com> >>>>>>> Date: Friday, August 28, 2015 at 22:40 >>>>>>> To: Kathy Kleiman < <mailto:kathy@kathykleiman.com> >>>>>>> kathy(a)kathykleiman.com>, " <mailto:gnso-ppsai3@icann.org> >>>>>>> gnso-ppsai3(a)icann.org" < <mailto:gnso-ppsai3@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> >>>>>>> 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. >>>>>>> >>>>>>> >>>>>>> >>>>>>> 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 < <mailto:Todd.Williams@turner.com> >>>>>>> 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> >>>>>>> mailto:kathy@kathykleiman.com] >>>>>>> Sent: Wednesday, August 26, 2015 10:59 PM >>>>>>> To: Williams, Todd <mailto:Todd.Williams@turner.com> >>>>>>> <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/pdfwOfjgYV0 >>>>>>> i9.pdf> >>>>>>> http://forum.icann.org/lists/comments-ppsai-initial-05may15/pdfwOfjgYV0i >>>>>>> 9.pdf), which we analyze in the previous section that supports the >>>>>>> premise of Annex E. >>>>>>> >>>>>>> >>>>>>> >>>>>>> From: <mailto:gnso-ppsai3-bounces@icann.org> >>>>>>> gnso-ppsai3-bounces(a)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 >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> <Revised Illustrative Disclosure Framework for Intellectual Property >>>>>>> Righ...[2][1].docx>_______________________________________________ >>>>>>> Gnso-ppsai3 mailing list >>>>>>> <mailto:Gnso-ppsai3@icann.org> Gnso-ppsai3(a)icann.org >>>>>>> <https://mm.icann.org/mailman/listinfo/gnso-ppsai3> >>>>>>> https://mm.icann.org/mailman/listinfo/gnso-ppsai3 >>>>>>> >>>>>>> >>>>>>> >>>>>>> _______________________________________________ >>>>>>> Gnso-ppsai3 mailing list >>>>>>> <mailto:Gnso-ppsai3@icann.org> Gnso-ppsai3(a)icann.org >>>>>>> <https://mm.icann.org/mailman/listinfo/gnso-ppsai3> >>>>>>> https://mm.icann.org/mailman/listinfo/gnso-ppsai3 >>>>>>> >>>>>>> >>>>>>> _______________________________________________ >>>>>>> Gnso-ppsai3 mailing list >>>>>>> <mailto:Gnso-ppsai3@icann.org> Gnso-ppsai3(a)icann.org >>>>>>> <https://mm.icann.org/mailman/listinfo/gnso-ppsai3> >>>>>>> https://mm.icann.org/mailman/listinfo/gnso-ppsai3 >>>>>>> >>>>>>> >>>>>>> _______________________________________________ >>>>>>> Gnso-ppsai3 mailing list >>>>>>> Gnso-ppsai3@icann.orghttps://mm.icann.org/mailman/listinfo/gnso-ppsai3 >>>>>>> >>>>>>> >>>>>>> _______________________________________________ >>>>>>> Gnso-ppsai3 mailing list >>>>>>> Gnso-ppsai3(a)icann.org >>>>>>> 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 >

3 2

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

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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

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