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.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@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




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