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@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@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@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@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@icann.org<mailto:mary.wong@icann.org> From: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Date: Monday, August 31, 2015 at 15:46 To: "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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@icann.org<mailto:mary.wong@icann.org> From: <gnso-ppsai3-bounces@icann.org<mailto:gnso-ppsai3-bounces@icann.org>> on behalf of "Williams, Todd" <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>> Date: Friday, August 28, 2015 at 22:40 To: Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>>, "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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@turner.com<mailto:Todd.Williams@turner.com>>; gnso-ppsai3@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@turner.com><mailto:Todd.Williams@turner.com>; gnso-ppsai3@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.pd...), 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@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@icann.org<mailto:Gnso-ppsai3@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai3
Thanks Sara and Todd! I'm boarding a flight right now (to Domain Fear Asia in Macau from Singapore) but will send the latest documents with the caveats as noted upon landing in a few hours. Cheers, and I hope those subteam members who are US-based will enjoy your long weekend! Mary Sent from my iPhone On Sep 5, 2015, at 04:47, Sara Bockey <sbockey@godaddy.com<mailto:sbockey@godaddy.com>> wrote: 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@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@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] On Behalf Of Mary Wong Sent: Wednesday, September 02, 2015 6:59 AM To: gnso-ppsai3@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@icann.org<mailto:mary.wong@icann.org> From: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Date: Monday, August 31, 2015 at 15:46 To: "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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@icann.org<mailto:mary.wong@icann.org> From: <gnso-ppsai3-bounces@icann.org<mailto:gnso-ppsai3-bounces@icann.org>> on behalf of "Williams, Todd" <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>> Date: Friday, August 28, 2015 at 22:40 To: Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>>, "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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<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 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@turner.com<mailto:Todd.Williams@turner.com>>; gnso-ppsai3@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@turner.com><mailto:Todd.Williams@turner.com>; gnso-ppsai3@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.pd...), 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@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@icann.org<mailto:Gnso-ppsai3@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai3 <Revised Illustrative Disclosure Framework for Intellectual Property Rights - SB edits.docx>
Thanks Sara. Quick point: your suggestion re: date of first use should already be addressed by the addition to II(A)(5) and II(C)(5), which was based on the comment from Tim Kramer. Thanks everybody, talk to you all on the call. From: Sara Bockey [mailto:sbockey@godaddy.com] Sent: Friday, September 04, 2015 4:40 PM To: Williams, Todd <Todd.Williams@turner.com>; Mary Wong <mary.wong@icann.org>; gnso-ppsai3@icann.org Cc: Sara Bockey <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@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@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@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@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@icann.org<mailto:mary.wong@icann.org> From: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Date: Monday, August 31, 2015 at 15:46 To: "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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@icann.org<mailto:mary.wong@icann.org> From: <gnso-ppsai3-bounces@icann.org<mailto:gnso-ppsai3-bounces@icann.org>> on behalf of "Williams, Todd" <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>> Date: Friday, August 28, 2015 at 22:40 To: Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>>, "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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@turner.com<mailto:Todd.Williams@turner.com>>; gnso-ppsai3@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@turner.com><mailto:Todd.Williams@turner.com>; gnso-ppsai3@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.pd...), 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@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@icann.org<mailto:Gnso-ppsai3@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai3
I disagree and think clarification is needed. Generally when someone claims common law rights they do not have a federal registration and therefore some other form of evidence of prior commercial use supporting the claimed date must be provided. I personally am against the claim of common law rights in this instance and believe a federal registration must be the standard. Sara From: "Williams, Todd" Date: Tuesday, September 8, 2015 at 6:56 AM To: Sara Bockey, Mary Wong, "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" Subject: RE: [Gnso-ppsai3] Additional Comments for Sub Team Consideration Thanks Sara. Quick point: your suggestion re: date of first use should already be addressed by the addition to II(A)(5) and II(C)(5), which was based on the comment from Tim Kramer. Thanks everybody, talk to you all on the call. From: Sara Bockey [mailto:sbockey@godaddy.com] Sent: Friday, September 04, 2015 4:40 PM To: Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>>; Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>; gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org> Cc: Sara Bockey <sbockey@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@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@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@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@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@icann.org<mailto:mary.wong@icann.org> From: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Date: Monday, August 31, 2015 at 15:46 To: "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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@icann.org<mailto:mary.wong@icann.org> From: <gnso-ppsai3-bounces@icann.org<mailto:gnso-ppsai3-bounces@icann.org>> on behalf of "Williams, Todd" <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>> Date: Friday, August 28, 2015 at 22:40 To: Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>>, "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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@turner.com<mailto:Todd.Williams@turner.com>>; gnso-ppsai3@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@turner.com><mailto:Todd.Williams@turner.com>; gnso-ppsai3@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.pd...), 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@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@icann.org<mailto:Gnso-ppsai3@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai3
We’ll certainly discuss with the larger WG your point about common-law marks. But regardless of the outcome of that discussion, we’ve still added language requiring that the Requester provide evidence of their date of first use, per the comment from Mr. Kramer. From: Sara Bockey [mailto:sbockey@godaddy.com] Sent: Tuesday, September 08, 2015 10:08 AM To: Williams, Todd <Todd.Williams@turner.com>; Mary Wong <mary.wong@icann.org>; gnso-ppsai3@icann.org Cc: Sara Bockey <sbockey@godaddy.com> Subject: Re: [Gnso-ppsai3] Additional Comments for Sub Team Consideration I disagree and think clarification is needed. Generally when someone claims common law rights they do not have a federal registration and therefore some other form of evidence of prior commercial use supporting the claimed date must be provided. I personally am against the claim of common law rights in this instance and believe a federal registration must be the standard. Sara From: "Williams, Todd" Date: Tuesday, September 8, 2015 at 6:56 AM To: Sara Bockey, Mary Wong, "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" Subject: RE: [Gnso-ppsai3] Additional Comments for Sub Team Consideration Thanks Sara. Quick point: your suggestion re: date of first use should already be addressed by the addition to II(A)(5) and II(C)(5), which was based on the comment from Tim Kramer. Thanks everybody, talk to you all on the call. From: Sara Bockey [mailto:sbockey@godaddy.com] Sent: Friday, September 04, 2015 4:40 PM To: Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>>; Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>; gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org> Cc: Sara Bockey <sbockey@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@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@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@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@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@icann.org<mailto:mary.wong@icann.org> From: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Date: Monday, August 31, 2015 at 15:46 To: "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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@icann.org<mailto:mary.wong@icann.org> From: <gnso-ppsai3-bounces@icann.org<mailto:gnso-ppsai3-bounces@icann.org>> on behalf of "Williams, Todd" <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>> Date: Friday, August 28, 2015 at 22:40 To: Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>>, "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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@turner.com<mailto:Todd.Williams@turner.com>>; gnso-ppsai3@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@turner.com><mailto:Todd.Williams@turner.com>; gnso-ppsai3@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.pd...), 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@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@icann.org<mailto:Gnso-ppsai3@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai3
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? 2) Can you show me where in the NCSG comment (here: http://forum.icann.org/lists/comments-ppsai-initial-05may15/pdfBoyWzlMS3q.pd...) 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. Thanks. Todd. From: Sara Bockey [mailto:sbockey@godaddy.com] Sent: Friday, September 04, 2015 4:40 PM To: Williams, Todd <Todd.Williams@turner.com>; Mary Wong <mary.wong@icann.org>; gnso-ppsai3@icann.org Cc: Sara Bockey <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@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@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@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@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@icann.org<mailto:mary.wong@icann.org> From: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Date: Monday, August 31, 2015 at 15:46 To: "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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@icann.org<mailto:mary.wong@icann.org> From: <gnso-ppsai3-bounces@icann.org<mailto:gnso-ppsai3-bounces@icann.org>> on behalf of "Williams, Todd" <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>> Date: Friday, August 28, 2015 at 22:40 To: Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>>, "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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@turner.com<mailto:Todd.Williams@turner.com>>; gnso-ppsai3@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@turner.com><mailto:Todd.Williams@turner.com>; gnso-ppsai3@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.pd...), 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@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@icann.org<mailto:Gnso-ppsai3@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai3
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@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.pd... ) 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] Sent: Friday, September 04, 2015 4:40 PM To: Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>>; Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>; gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org> Cc: Sara Bockey <sbockey@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@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@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@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@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@icann.org<mailto:mary.wong@icann.org> From: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Date: Monday, August 31, 2015 at 15:46 To: "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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@icann.org<mailto:mary.wong@icann.org> From: <gnso-ppsai3-bounces@icann.org<mailto:gnso-ppsai3-bounces@icann.org>> on behalf of "Williams, Todd" <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>> Date: Friday, August 28, 2015 at 22:40 To: Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>>, "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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@turner.com<mailto:Todd.Williams@turner.com>>; gnso-ppsai3@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@turner.com><mailto:Todd.Williams@turner.com>; gnso-ppsai3@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.pd...), 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@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@icann.org<mailto:Gnso-ppsai3@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai3
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] Sent: Monday, September 14, 2015 3:50 PM To: Williams, Todd <Todd.Williams@turner.com>; Mary Wong <mary.wong@icann.org>; gnso-ppsai3@icann.org Cc: Sara Bockey <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@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.pd... ) 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] Sent: Friday, September 04, 2015 4:40 PM To: Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>>; Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>; gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org> Cc: Sara Bockey <sbockey@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@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@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@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@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@icann.org<mailto:mary.wong@icann.org> From: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Date: Monday, August 31, 2015 at 15:46 To: "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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@icann.org<mailto:mary.wong@icann.org> From: <gnso-ppsai3-bounces@icann.org<mailto:gnso-ppsai3-bounces@icann.org>> on behalf of "Williams, Todd" <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>> Date: Friday, August 28, 2015 at 22:40 To: Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>>, "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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@turner.com<mailto:Todd.Williams@turner.com>>; gnso-ppsai3@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@turner.com><mailto:Todd.Williams@turner.com>; gnso-ppsai3@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.pd...), 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@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@icann.org<mailto:Gnso-ppsai3@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai3
Thanks, Todd. From: "Williams, Todd" Date: Monday, September 14, 2015 at 1:18 PM To: Sara Bockey, Mary Wong, "gnso-ppsai3@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] Sent: Monday, September 14, 2015 3:50 PM To: Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>>; Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>; gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org> Cc: Sara Bockey <sbockey@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@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.pd... ) 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] Sent: Friday, September 04, 2015 4:40 PM To: Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>>; Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>; gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org> Cc: Sara Bockey <sbockey@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@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@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@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@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@icann.org<mailto:mary.wong@icann.org> From: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Date: Monday, August 31, 2015 at 15:46 To: "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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@icann.org<mailto:mary.wong@icann.org> From: <gnso-ppsai3-bounces@icann.org<mailto:gnso-ppsai3-bounces@icann.org>> on behalf of "Williams, Todd" <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>> Date: Friday, August 28, 2015 at 22:40 To: Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>>, "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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@turner.com<mailto:Todd.Williams@turner.com>>; gnso-ppsai3@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@turner.com><mailto:Todd.Williams@turner.com>; gnso-ppsai3@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.pd...), 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@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@icann.org<mailto:Gnso-ppsai3@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai3
Sorry. Wrong attachment. Please use the attached for tomorrow’s meeting. Sara From: Sara Bockey Date: Monday, September 14, 2015 at 2:11 PM To: "Williams, Todd", Mary Wong, "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" Cc: Sara Bockey Subject: Re: [Gnso-ppsai3] Additional Comments for Sub Team Consideration Thanks, Todd. From: "Williams, Todd" Date: Monday, September 14, 2015 at 1:18 PM To: Sara Bockey, Mary Wong, "gnso-ppsai3@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] Sent: Monday, September 14, 2015 3:50 PM To: Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>>; Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>; gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org> Cc: Sara Bockey <sbockey@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@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.pd... ) 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] Sent: Friday, September 04, 2015 4:40 PM To: Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>>; Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>; gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org> Cc: Sara Bockey <sbockey@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@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@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@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@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@icann.org<mailto:mary.wong@icann.org> From: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Date: Monday, August 31, 2015 at 15:46 To: "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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@icann.org<mailto:mary.wong@icann.org> From: <gnso-ppsai3-bounces@icann.org<mailto:gnso-ppsai3-bounces@icann.org>> on behalf of "Williams, Todd" <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>> Date: Friday, August 28, 2015 at 22:40 To: Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>>, "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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@turner.com<mailto:Todd.Williams@turner.com>>; gnso-ppsai3@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@turner.com><mailto:Todd.Williams@turner.com>; gnso-ppsai3@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.pd...), 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@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@icann.org<mailto:Gnso-ppsai3@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai3
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@godaddy.com> wrote:
Thanks, Todd.
From: "Williams, Todd" Date: Monday, September 14, 2015 at 1:18 PM To: Sara Bockey, Mary Wong, "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] Sent: Monday, September 14, 2015 3:50 PM To: Williams, Todd <Todd.Williams@turner.com>; Mary Wong <mary.wong@icann.org>; gnso-ppsai3@icann.org Cc: Sara Bockey <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@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.pd... ) 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] Sent: Friday, September 04, 2015 4:40 PM To: Williams, Todd <Todd.Williams@turner.com>; Mary Wong <mary.wong@icann.org>; gnso-ppsai3@icann.org Cc: Sara Bockey <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@icann.org> on behalf of "Williams, Todd" Date: Wednesday, September 2, 2015 at 2:58 PM To: Mary Wong, "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@icann.org [mailto:gnso-ppsai3-bounces@icann.org] On Behalf Of Mary Wong Sent: Wednesday, September 02, 2015 6:59 AM To: 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@icann.org
From: Mary Wong <mary.wong@icann.org> Date: Monday, August 31, 2015 at 15:46 To: "gnso-ppsai3@icann.org" <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@icann.org
From: <gnso-ppsai3-bounces@icann.org> on behalf of "Williams, Todd" <Todd.Williams@turner.com> Date: Friday, August 28, 2015 at 22:40 To: Kathy Kleiman <kathy@kathykleiman.com>, "gnso-ppsai3@icann.org" <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@turner.com>; 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@turner.com>; 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.pd...), 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
_______________________________________________ Gnso-ppsai3 mailing list Gnso-ppsai3@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@icann.org https://mm.icann.org/mailman/listinfo/gnso-ppsai3
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@icann.org From: Holly Raiche <h.raiche@internode.on.net> Date: Tuesday, September 15, 2015 at 20:18 To: Mary Wong <mary.wong@icann.org>, "gnso-ppsai3@icann.org" <gnso-ppsai3@icann.org> Cc: "Williams, Todd" <Todd.Williams@turner.com>, Sara Bockey <sbockey@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@godaddy.com> wrote:
Thanks, Todd.
From: "Williams, Todd" Date: Monday, September 14, 2015 at 1:18 PM To: Sara Bockey, Mary Wong, "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] Sent: Monday, September 14, 2015 3:50 PM To: Williams, Todd <Todd.Williams@turner.com>; Mary Wong <mary.wong@icann.org>; gnso-ppsai3@icann.org Cc: Sara Bockey <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@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.pd f <http://forum.icann.org/lists/comments-ppsai-initial-05may15/pdfBoyWzlMS3q.p df> ) 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] Sent: Friday, September 04, 2015 4:40 PM To: Williams, Todd <Todd.Williams@turner.com>; Mary Wong <mary.wong@icann.org>; gnso-ppsai3@icann.org Cc: Sara Bockey <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@icann.org> on behalf of "Williams, Todd" Date: Wednesday, September 2, 2015 at 2:58 PM To: Mary Wong, "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] On Behalf Of Mary Wong Sent: Wednesday, September 02, 2015 6:59 AM To: 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@icann.org
From: Mary Wong <mary.wong@icann.org> Date: Monday, August 31, 2015 at 15:46 To: "gnso-ppsai3@icann.org" <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@icann.org
From: <gnso-ppsai3-bounces@icann.org> on behalf of "Williams, Todd" <Todd.Williams@turner.com> Date: Friday, August 28, 2015 at 22:40 To: Kathy Kleiman <kathy@kathykleiman.com>, "gnso-ppsai3@icann.org" <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 <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 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@turner.com>; 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@turner.com> <mailto:Todd.Williams@turner.com> ; 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 .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 > > > > > > > > > _______________________________________________ > Gnso-ppsai3 mailing list > Gnso-ppsai3@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@icann.org https://mm.icann.org/mailman/listinfo/gnso-ppsai3
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@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@icann.org
From: Holly Raiche <h.raiche@internode.on.net> Date: Tuesday, September 15, 2015 at 20:18 To: Mary Wong <mary.wong@icann.org>, "gnso-ppsai3@icann.org" <gnso-ppsai3@icann.org> Cc: "Williams, Todd" <Todd.Williams@turner.com>, Sara Bockey <sbockey@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@godaddy.com> wrote:
Thanks, Todd.
From: "Williams, Todd" Date: Monday, September 14, 2015 at 1:18 PM To: Sara Bockey, Mary Wong, "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] Sent: Monday, September 14, 2015 3:50 PM To: Williams, Todd <Todd.Williams@turner.com>; Mary Wong <mary.wong@icann.org>; gnso-ppsai3@icann.org Cc: Sara Bockey <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@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.pd... ) 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] Sent: Friday, September 04, 2015 4:40 PM To: Williams, Todd <Todd.Williams@turner.com>; Mary Wong <mary.wong@icann.org>; gnso-ppsai3@icann.org Cc: Sara Bockey <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@icann.org> on behalf of "Williams, Todd" Date: Wednesday, September 2, 2015 at 2:58 PM To: Mary Wong, "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@icann.org [mailto:gnso-ppsai3-bounces@icann.org] On Behalf Of Mary Wong Sent: Wednesday, September 02, 2015 6:59 AM To: 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@icann.org
From: Mary Wong <mary.wong@icann.org> Date: Monday, August 31, 2015 at 15:46 To: "gnso-ppsai3@icann.org" <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@icann.org
From: <gnso-ppsai3-bounces@icann.org> on behalf of "Williams, Todd" <Todd.Williams@turner.com> Date: Friday, August 28, 2015 at 22:40 To: Kathy Kleiman <kathy@kathykleiman.com>, "gnso-ppsai3@icann.org" <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@turner.com>; 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@turner.com>; 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.pd...), 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 >> >> >> >> >> >> >> >> >> _______________________________________________ >> Gnso-ppsai3 mailing list >> Gnso-ppsai3@icann.org >> https://mm.icann.org/mailman/listinfo/gnso-ppsai3 >
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As far as I'm aware, they have not been agreed upon. Sara Sent from my iPhone On Sep 15, 2015, at 5:43 AM, Holly Raiche <h.raiche@internode.on.net<mailto:h.raiche@internode.on.net>> wrote: 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@icann.org<mailto:mary.wong@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@icann.org<mailto:mary.wong@icann.org> From: Holly Raiche <h.raiche@internode.on.net<mailto:h.raiche@internode.on.net>> Date: Tuesday, September 15, 2015 at 20:18 To: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>, "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>> Cc: "Williams, Todd" <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>>, Sara Bockey <sbockey@godaddy.com<mailto:sbockey@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@godaddy.com<mailto:sbockey@godaddy.com>> wrote: Thanks, Todd. From: "Williams, Todd" Date: Monday, September 14, 2015 at 1:18 PM To: Sara Bockey, Mary Wong, "gnso-ppsai3@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] Sent: Monday, September 14, 2015 3:50 PM To: Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>>; Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>; gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org> Cc: Sara Bockey <sbockey@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@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.pd... ) 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] Sent: Friday, September 04, 2015 4:40 PM To: Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>>; Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>; gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org> Cc: Sara Bockey <sbockey@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@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@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] On Behalf Of Mary Wong Sent: Wednesday, September 02, 2015 6:59 AM To: gnso-ppsai3@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@icann.org<mailto:mary.wong@icann.org> From: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Date: Monday, August 31, 2015 at 15:46 To: "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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@icann.org<mailto:mary.wong@icann.org> From: <gnso-ppsai3-bounces@icann.org<mailto:gnso-ppsai3-bounces@icann.org>> on behalf of "Williams, Todd" <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>> Date: Friday, August 28, 2015 at 22:40 To: Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>>, "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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<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 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@turner.com<mailto:Todd.Williams@turner.com>>; gnso-ppsai3@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@turner.com><mailto:Todd.Williams@turner.com>; gnso-ppsai3@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.pd...), 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@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@icann.org<mailto:Gnso-ppsai3@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@icann.org<mailto:Gnso-ppsai3@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai3 _______________________________________________ Gnso-ppsai3 mailing list Gnso-ppsai3@icann.org<mailto:Gnso-ppsai3@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai3 _______________________________________________ Gnso-ppsai3 mailing list Gnso-ppsai3@icann.org<mailto:Gnso-ppsai3@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai3
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@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@icann.org> Cc: gnso-ppsai3@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@icann.org<mailto:mary.wong@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@icann.org<mailto:mary.wong@icann.org> From: Holly Raiche <h.raiche@internode.on.net<mailto:h.raiche@internode.on.net>> Date: Tuesday, September 15, 2015 at 20:18 To: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>, "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>> Cc: "Williams, Todd" <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>>, Sara Bockey <sbockey@godaddy.com<mailto:sbockey@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@godaddy.com<mailto:sbockey@godaddy.com>> wrote: Thanks, Todd. From: "Williams, Todd" Date: Monday, September 14, 2015 at 1:18 PM To: Sara Bockey, Mary Wong, "gnso-ppsai3@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] Sent: Monday, September 14, 2015 3:50 PM To: Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>>; Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>; gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org> Cc: Sara Bockey <sbockey@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@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.pd... ) 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] Sent: Friday, September 04, 2015 4:40 PM To: Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>>; Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>; gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org> Cc: Sara Bockey <sbockey@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@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@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] On Behalf Of Mary Wong Sent: Wednesday, September 02, 2015 6:59 AM To: gnso-ppsai3@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@icann.org<mailto:mary.wong@icann.org> From: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Date: Monday, August 31, 2015 at 15:46 To: "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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@icann.org<mailto:mary.wong@icann.org> From: <gnso-ppsai3-bounces@icann.org<mailto:gnso-ppsai3-bounces@icann.org>> on behalf of "Williams, Todd" <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>> Date: Friday, August 28, 2015 at 22:40 To: Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>>, "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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<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 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@turner.com<mailto:Todd.Williams@turner.com>>; gnso-ppsai3@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@turner.com><mailto:Todd.Williams@turner.com>; gnso-ppsai3@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.pd...), 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@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@icann.org<mailto:Gnso-ppsai3@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@icann.org<mailto:Gnso-ppsai3@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai3 _______________________________________________ Gnso-ppsai3 mailing list Gnso-ppsai3@icann.org<mailto:Gnso-ppsai3@icann.org> https://mm.icann.org/mailman/listinfo/gnso-ppsai3
Hi All, I am hoping today will not be a final decision on Annex E, Section III or any other parts of our comments. I think our subteam has done a good job of placing before the Working Group a great summary of complex comments and issues. I think the proposed revisions to Annex E reflect many of the requested changes and bring it to a much closer spot to the requests of a number of commenters. Ultimately, I think the WG will need to make the call between Sections II and III, but not today. I will not be able to join you as I will be at the swearing in of a close friend as a US Ambassador. I thought I could do both meetings, but we received word that in order to pass through security, we have to be at the State Department especially early. Apologies! All the best and tx, Kathy :
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] *Sent:* Monday, September 14, 2015 3:50 PM *To:* Williams, Todd <Todd.Williams@turner.com>; Mary Wong <mary.wong@icann.org>; gnso-ppsai3@icann.org *Cc:* Sara Bockey <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@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.pd...
) 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] *Sent:* Friday, September 04, 2015 4:40 PM *To:* Williams, Todd <Todd.Williams@turner.com <mailto:Todd.Williams@turner.com>>; Mary Wong <mary.wong@icann.org <mailto:mary.wong@icann.org>>; gnso-ppsai3@icann.org <mailto:gnso-ppsai3@icann.org> *Cc:* Sara Bockey <sbockey@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@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@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@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@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@icann.org <mailto:mary.wong@icann.org>
*From: *Mary Wong <mary.wong@icann.org <mailto:mary.wong@icann.org>> *Date: *Monday, August 31, 2015 at 15:46 *To: *"gnso-ppsai3@icann.org <mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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@icann.org <mailto:mary.wong@icann.org>
*From: *<gnso-ppsai3-bounces@icann.org <mailto:gnso-ppsai3-bounces@icann.org>> on behalf of "Williams, Todd" <Todd.Williams@turner.com <mailto:Todd.Williams@turner.com>> *Date: *Friday, August 28, 2015 at 22:40 *To: *Kathy Kleiman <kathy@kathykleiman.com <mailto:kathy@kathykleiman.com>>, "gnso-ppsai3@icann.org <mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@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@turner.com <mailto:Todd.Williams@turner.com>>; gnso-ppsai3@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@turner.com> <mailto:Todd.Williams@turner.com>; gnso-ppsai3@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.pd...), 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@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
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participants (5)
-
Holly Raiche -
Kathy Kleiman -
Mary Wong -
Sara Bockey -
Williams, Todd