Folks Just to elaborate on what I was trying to say. Some in this group (and others in the larger WG) hold the view that support for ‘verifiable evidence’ amounts to support for Annex E. Others believe that the term verifiable evidence calls for a higher standard of evidence than is required in Annex E. The significance of this second view is that it is in a separate category to those whose view is that ‘reveal’ should only occur after a court order or some legal judgment on a request (court order, subpoena etc). That is not making a judgment on either of the views - it is trying to explain both in more detail. Holly On 28 Aug 2015, at 12:56 am, Victoria Sheckler <vsheckler@riaa.com> wrote:

Kathy – my comment about going backwards was with respect to your email, not Holly’s. I apologize for the confusion. With respect to your earlier email, we agreed to the categories b/c we wanted to capture the nuance in the comments. You are suggesting our thinking has changed from that. I don’t think that is true, and I think it better to provide that nuance to the larger working group.

Moreover, the standard of evidence for Annex E has been noted as an issue for discussion. If Holly thinks we need to amplify the different views on the standard of evidence, I think that is fine, and welcome her suggestion. But it is not fine to suggest that any particular interpretation of the comments beyond their plain meeting is necessarily accurate, or it is what a commenter intended.

I view the goal of the subteam to capture the substance of the comments in a neutral manner, and note where there is divergence or questions about the comments that the subteam has about the comments or about how to interpret the comments. It is not our place at this stage to advocate for a particular view. I think that is for the larger working group discussion.

From: Kathy Kleiman [mailto:kathy@kathykleiman.com] Sent: Thursday, August 27, 2015 9:17 AM To: Victoria Sheckler; Holly Raiche Cc: gnso-ppsai3@icann.org Subject: Re: [Gnso-ppsai3] Revised Subteam 3 Summary with Overview

With respect, I don't think we are going backwards. I think Holly has really hit at the nub of the issue now in front of us (not when we started, but now, after we have spent so much time with the comments). It is what standard of evidence is needed for Annex E, if we keep Annex E?

I think Holly's reasoning below makes sense and I would welcome her drafting of a sentence or two to reflect it.

Best, Kathy : I feel like we are going backwards

Sent from my iPad

On Aug 26, 2015, at 11:16 PM, Holly Raiche <h.raiche@internode.on.net> wrote:

I won’t worry at this stage.

My concern is with the following

. Some on the subteam viewed these comments as supporting Annex E because of the plain meaning of the text and because Annex E calls for verifiable evidence, while others on the subteam interpret ‘verifiable evidence’ as requiring a court order and therefore not in support of Annex E.[DS1]

I am not sure that the ‘plain meaning’ of ‘verifiable evidence’ is support for Annex E - but if that is the take away for some, okay. I think I am in the ‘others’ camp and that position more complex. While ‘verifiable evidence’ suggests a very high standard of evidence, it does not imply a court order (or other legal process). As I said in an earlier comment at some point, the word verifiable does not imply that the evidence has been tested through a legal process; it suggests instead that the evidence is credible/provable enough so that, in a legal process, it would withstand legal scrutiny - but hasn’t so far. The implication therefore, is that this test is apart from the court/legal process route - implying something apart from that. James Bladel’s words were that he was thinking of provable in the context of the RAA - not a legal process, but a very high standard of credibility.

I realise that may seem like nitpicking, but it opens doors for fort her work in a way that Darcy’s first paragraphs don’t.

So if everyone is happy with my slightly different summation, I’ll draft a sentence or two

Holly

Since the subteam can’t agree on the meaning of “verifiable evidence” as used in the petition, it doesn’t seem we should include this in the support for section. I’ve moved it here to indicate the need for further interpretation by the PPSAI WG.

On 27 Aug 2015, at 11:45 am, Kathy Kleiman <Kathy@kathykleiman.com> wrote:

Sorry Holly, I must have missed the email with your edits. If you could kindly add them into the text, that would be great! RE: the last call, I was referring to the Subteam 3 call... about a week ago, I think.

To Todd: I'll be back in touch later tonight. In the midst of packing for a trip to see my parents before the summer is over...

Best, Kathy

: Hi Kathy

Great job.

First - I did suggest some changes to the first paragraph - I gather you aren’t happy with them?

Next - you refer to the ‘last call’. Is that the full PPSAI or one just for Subteam 3 Thanks Holly On 27 Aug 2015, at 7:16 am, Kathy Kleiman <Kathy@kathykleiman.com> wrote:

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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