Steve, Both paragraphs that were posted in the WG on the Tuesday call and attributed to me had major deletions, replacements and even changes from AND to OR. Substantive edits that gutted the meaning and intent - yet were not distributed prior to the meeting or otherwise shared as revised/edited/modified text. Purposeful or inadvertent, it undermines the process in which we are engaged - and calls into question in the too-rapid speed in which we have been moving forward. I will be circulating revised text, but we need to agree that this type of misrepresentation will not take place again. Best, Kathy On 11/12/2015 11:15 AM, Metalitz, Steven wrote:

Kathy, can you be more specific as to what you are referring to?

Steve

*From:*Kathy Kleiman [mailto:kathy@kathykleiman.com] *Sent:* Thursday, November 12, 2015 11:12 AM *To:* Williams, Todd; Mary Wong; gnso-ppsai3@icann.org; Stephanie Perrin; James Gannon; Graeme Bunton; Holly Raiche; Metalitz, Steven *Subject:* Re: [Gnso-ppsai3] [Gnso-ppsai-pdp-wg] Feedback on Illustrative Disclosure Framework

All, It is very difficult to work with a situation where words are changed, meanings are changed and ideas are modified without notice and still attributing those words to the original person who wrote the original version. It undermines trust in this process and any sense of cooperation and shared endeavor.

Kathy

On 11/11/2015 8:14 AM, Williams, Todd wrote:

Thank you Mary. This language looks good to me, and should address the point raised by James. My only thought is that if we go this route, for the sake of full upfront notice to Requesters, the choice of jurisdiction in the “published Terms of Service” should be readily and easily accessible. Perhaps the easiest way to do that would be for P/P Providers to use a request form in which the jurisdiction is specified? I think that is where Kathy was headed with the edits to Section II that she had proposed. To the extent that we can get those finalized, I think we may be close to done with this last remaining issue.

*From:*Mary Wong [mailto:mary.wong@icann.org] *Sent:* Tuesday, November 10, 2015 10:31 PM *To:* Williams, Todd <Todd.Williams@turner.com> <mailto:Todd.Williams@turner.com>; Kathy Kleiman <kathy@kathykleiman.com> <mailto:kathy@kathykleiman.com>; gnso-ppsai3@icann.org <mailto:gnso-ppsai3@icann.org>; Stephanie Perrin <stephanie.perrin@MAIL.UTORONTO.CA> <mailto:stephanie.perrin@MAIL.UTORONTO.CA>; James Gannon <james@cyberinvasion.net> <mailto:james@cyberinvasion.net> *Subject:* Re: [Gnso-ppsai3] [Gnso-ppsai-pdp-wg] Feedback on Illustrative Disclosure Framework

Hello again everyone, and thanks to Todd and Kathy for continuing the work and discussions.

As you will have seen, I’ve sent an email to the full WG at the co-chairs’ requests, proposing updated draft language for Option Two on their behalf. For your convenience, here is the proposed language, with the changes highlighted in bold. You may recall that this originates in a proposal made by James Bladel a few weeks ago on a WG call.

/"In making a submission to request disclosure of a Customer’s contact information, Requester agrees to submit to the jurisdiction of the courts i*n the location specified by the Provider in its published Terms of Service*, solely for disputes arising from alleged improper disclosures caused by knowingly false statements made by the Requester, or from Requester’s knowing misuse of information disclosed to it in response to its request.”/

Although the idea is to have the full WG engaged in this discussion, I thought it might be helpful to also note the update for the Sub Team, especially as discussions continue here as well.

Thanks and cheers

Mary

Mary Wong

Senior Policy Director

Internet Corporation for Assigned Names & Numbers (ICANN)

Telephone: +1 603 574 4889

Email: mary.wong@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: *Tuesday, November 10, 2015 at 11:20 *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>>, Stephanie Perrin <stephanie.perrin@MAIL.UTORONTO.CA <mailto:stephanie.perrin@MAIL.UTORONTO.CA>>, James Gannon <james@cyberinvasion.net <mailto:james@cyberinvasion.net>> *Subject: *Re: [Gnso-ppsai3] [Gnso-ppsai-pdp-wg] Feedback on Illustrative Disclosure Framework

So while this is fresh in my mind having just finished the call:

I’m still somewhat surprised that we think that various jurisdictions are going to provide more certainty than one. I suppose that rests on an empirical assumption that Kathy is making (that most P/P Providers are located in “major jurisdictions” – and will stay there). But for the sake of moving us toward the rapidly approaching finish line: OK, if we’re going with Option Two, then what is the exact language that we should use? Here is what Mary circulated in her last email and what we just discussed on the call:

"In making a submission to request disclosure of a Customer’s contact information, Requester agrees to submit to the jurisdiction of the courts in the location either of its or the Provider’s primary place of business, solely for disputes arising from alleged improper disclosures caused by knowingly false statements made by the Requester, or from Requester’s knowing misuse of information disclosed to it in response to its request."

And here is what Kathy had recommended in the last draft that we had circulated:

“In making a submission to request disclosure of a Customer’s contact information, Requester agrees to submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts (1) of your domicile and (2) where Provider is located for disputes arising from alleged improper disclosures caused by knowingly false statements made by the Requester, or from Requester’s knowing misuse of information disclosed to it in response to its request.”

I understand Kathy’s point from the call that the first “or” should be an “and.” But beyond that, I don’t understand what’s wrong with the language that Mary proposed. I certainly don’t understand the idea that the Requester should submit to the jurisdiction of the Customer (which it has no way of knowing when it makes the request). As I mentioned on the call, that’s never been on the table (and just so that there is not any doubt that the “your” in Kathy’s first formulation referred to the Requester and not to the Customer, the clarifying language that Kathy suggested for Section II references the jurisdiction of the “copyright holder” or the “trademark holder”). Nor has the idea of a bond (unless somebody can point me to one of our sub-team emails or drafts that discussed a bond that I just forgot).

*From:*Kathy Kleiman [mailto:kathy@kathykleiman.com] *Sent:* Saturday, November 07, 2015 8:44 PM *To:* Williams, Todd <Todd.Williams@turner.com <mailto:Todd.Williams@turner.com>>; gnso-ppsai3@icann.org <mailto:gnso-ppsai3@icann.org>; Stephanie Perrin <stephanie.perrin@MAIL.UTORONTO.CA <mailto:stephanie.perrin@MAIL.UTORONTO.CA>>; James Gannon <james@cyberinvasion.net <mailto:james@cyberinvasion.net>> *Subject:* Re: [Gnso-ppsai3] [Gnso-ppsai-pdp-wg] Feedback on Illustrative Disclosure Framework

Hi Todd and All, I am still confused about affiliated providers vs. accredited providers (can someone please help me with these definitions? -- shout-out to Steve and Mary too) because I think the answers will dispel many of the concerns, including this Panama one. Most registrars are located in major jurisdictions, as are their providers (e.g., GoDaddy and Domains By Proxy).

If you would help me walk through an example, i would appreciate it. Interestingly JEB2016.COM <http://JEB2016.COM> is registered to Tucows through its privacy services, Contact Privacy Inc., both in Toronto, Ontario. Let's say that Jeb Bush's private residence was listed as the underlying Customer information, and a Reveal Request allegedly for purpose X (trademark on "jeb," for example) resulted in revealed data of this residence which was the misused by people with a grudge to the Bush family and real harm/damage to person or property (or both) was done. If the Requester is now located in Panama (a far more likely scenario than that the Provider would be), then why would we want to force Jeb Bush to go down to Panama to seek redress of his rights? It seems that the locus of the illegality and the "res" of the domain name property would both be in Toronto. These are the courts that will become expert in the issues and timely settlement/decision of these issues...

I would be interested in your thoughts. Best regards, Kathy

On 11/6/2015 12:38 PM, Williams, Todd wrote:

Thanks Kathy. To be clear: nothing in either Option One or Option Two prevents a wronged Customer from suing in “real-world courts” wherever they can establish jurisdiction for whatever remedies they can allege. But the premise of the Annex is that the harms that you’ve identified (doxing, swatting, etc.) are significant enough that Customers might need even more than that. And the question is what is a better “even more” – also being able to sue in the jurisdiction of the Provider, or also being able to bring an action at an ICANN-approved dispute resolution provider?

And just to be clear: when you say you “don’t agree” – what does that mean? That you think that having recourse to courts in Panama is more likely to help correct the “power imbalance” and provide “certainty” as to outcomes than would having recourse to a dispute-resolution provider? If so, why do you think that?

*From:*gnso-ppsai3-bounces@icann.org <mailto:gnso-ppsai3-bounces@icann.org> [mailto:gnso-ppsai3-bounces@icann.org] *On Behalf Of *Kathy Kleiman *Sent:* Friday, November 06, 2015 12:08 PM *To:* gnso-ppsai3@icann.org <mailto:gnso-ppsai3@icann.org>; Stephanie Perrin <stephanie.perrin@MAIL.UTORONTO.CA> <mailto:stephanie.perrin@MAIL.UTORONTO.CA>; James Gannon <james@cyberinvasion.net> <mailto:james@cyberinvasion.net> *Subject:* Re: [Gnso-ppsai3] [Gnso-ppsai-pdp-wg] Feedback on Illustrative Disclosure Framework

Dear Todd, I don't agree and do not want to spend 3 more years drafting the arbitration proceedings to take place here. Ones that may or may not have the ability to address the real-world damages of the costs and harms of doxing, swatting, outing a blogger or relocating a battered women's shelter.

Real-world harms, real-world due process, real-world courts. At this point the problems are WAY outside of ICANN's mandate or remit.

Best, Kathy

On 11/5/2015 5:42 PM, Williams, Todd wrote:

Thanks Mary for this summary. Let me jump in with some first thoughts, hopefully to stimulate some email thread traffic:

As I mentioned before, I’m not sure where I come out on this Annex to the Annex. And so to help me think through that, I threw out some basic questions on the call on Tuesday: what is the purpose of this Annex, how is it related to the bigger picture of what we’re trying to do (formulate policy recommendations re: P/P Provider accreditation), and would our Final Report be missing something if we just took it out? We heard two answers to those questions: one from Kathy and one from Stephanie. The discussion is at pages 23-24 of the Transcript, but to summarize, those two answers were:

1)Kathy’s: we received thousands of comments noting the potential harm to Customers if their data is disclosed/misused, and so Customers need certainty as to how to obtain a remedy if that happens.

2)Stephanie’s: there is a power imbalance, and Customers aren’t going to know how to sue Requesters who have misused their data unless they are seasoned and sophisticated Internet users.

Accepting the premises of those two points as true (for the sake of our discussion): where does that leave us? Just picking one example (the one that Steve used on the call): WhoisGuard is a Panamanian company. So which of our two options would be more helpful to correct the “power imbalance” for a wronged WhoisGuard Customer? If they live in Panama and/or can afford a Panamanian local counsel, then perhaps Option Two. But if they live anywhere else in the world and/or can’t afford a Panamanian local counsel, then presumably Option One – right? And what about Kathy’s point about “certainty” as to a remedy? What is more likely to produce “certainty” for wronged Customers – a mishmash of local court precedent, such that your remedy varies by the jurisdiction of your Provider (meaning, you get one remedy in Panamanian court if you use WhoisGuard, but a different remedy in US court if you use DomainsByProxy, and so on)? Or a unified body of precedent developed by the ICANN-approved dispute resolution provider referenced in Option One?

*From:*gnso-ppsai3-bounces@icann.org <mailto:gnso-ppsai3-bounces@icann.org> [mailto:gnso-ppsai3-bounces@icann.org] *On Behalf Of *Mary Wong *Sent:* Wednesday, November 04, 2015 6:02 PM *To:* gnso-ppsai3@icann.org <mailto:gnso-ppsai3@icann.org> *Subject:* Re: [Gnso-ppsai3] [Gnso-ppsai-pdp-wg] Feedback on Illustrative Disclosure Framework

Dear Sub Team 3 members,

Staff thought we ought to follow up with you after the WG discussion on the call yesterday. As noted then, there are two basic categories of changes/issues that were brought up for WG consideration. The first category concerns the changes made to Section III of the Framework following the WG’s Dublin discussions, which were described by Todd on the call, and for which Steve had asked WG members to send any further comments they may have to the WG mailing list by COB tomorrow (Thursday).

The second, and remaining, topic is the two options in the annex, on which further WG contributions have also been requested by this week while the Sub Team continues to try to develop a final recommendation for the WG before the next call next Tuesday.

Kathy, I’m not sure if this is what you meant by Steve’s suggested language, but here is the part of the transcript that I think you may be referring to:

/“ … we need to figure out whether or not we need to resolve that in order to provide that additional marginal comfort for the customer who feels that the information that was disclosed was misused. I mean, I don't think we're - we've reached a conclusion on this. But I would ask people to try to think about this and see first, whether they feel this is necessary to address this. And second, if so, then how should we be tweaking Option Two to make it clear? Two points really. One is really that there is some way for the requestor to know what jurisdiction he or she is submitting to. And the second is -- the other point I would make is — we probably could say, "solely for the purpose of disputes arising from a less than proper disclosure, et cetera.” Because it's not a general -- you know -- "I agree to be sued by the customer for anything in this jurisdiction." It's just for certain types of allegations. So unless you people have other comments on this question or suggestions about how we might resolve this. I think we have gotten some of the issues out on the table here. And I appreciate everyone's participation in that.”/

Perhaps the Sub Team could agree on whether or not its answer to the first question is yes, it’s necessary to address the question of jurisdiction to be agreed on by a Requester for the purpose of a customer’s seeking legal recourse in the event of an improper disclosure. If so, then the Sub Team could try to agree on recommended language for Option Two, including starting with Steve’s suggestion as pasted above.

We hope this summary helps with the Sub Team’s further discussions. Please let us know how we can assist with your deliberations this week.

Thanks and cheers

Mary

Mary Wong

Senior Policy Director

Internet Corporation for Assigned Names & Numbers (ICANN)

Telephone: +1 603 574 4889

Email: mary.wong@icann.org <mailto:mary.wong@icann.org>

*From: *<gnso-ppsai-pdp-wg-bounces@icann.org <mailto:gnso-ppsai-pdp-wg-bounces@icann.org>> on behalf of Kathy Kleiman <kathy@kathykleiman.com <mailto:kathy@kathykleiman.com>> *Date: *Wednesday, November 4, 2015 at 13:15 *To: *"gnso-ppsai-pdp-wg@icann.org <mailto:gnso-ppsai-pdp-wg@icann.org>" <gnso-ppsai-pdp-wg@icann.org <mailto:gnso-ppsai-pdp-wg@icann.org>>, "Metalitz, Steven" <met@msk.com <mailto:met@msk.com>> *Subject: *Re: [Gnso-ppsai-pdp-wg] Feedback on Illustrative Disclosure Framework

Tx Mary.

Hi Steve - could you please post the language that you suggested on the call yesterday - language that would limit the jurisdictional provision solely to matters in Annex E?

Tx, Kathy

On 11/4/2015 1:00 PM, Mary Wong wrote:

Thanks for the detailed follow up, Phil – staff will in turn follow up with Sub Team 3 as they finalize their recommendations on the Framework for the WG this week.

As requested by Steve on the WG call yesterday, we’d like to remind everyone to _please raise any further questions or comments you may have on: (1) the latest proposed edits to the Framework as presented by Todd and Kathy on the call; and (2) the proposed new language on recommendations concerning de-accreditation, to the mailing list_ by the end of your respective working days tomorrow (*Thursday 5 November*). If no further issues are raised with the few post-Dublin changes made to the Framework language (except for the annex, which is still being worked on by the Sub Team) or the de-accreditation text, we’ll proceed to insert those into the next iteration of the draft Final Report.

Staff will also follow up on the proposed discussion with our operational colleagues of implementation issues that may require refinement or reconsideration of the current language of the WG's policy recommendations – please look out for a separate email on that topic.

Thank you.

Cheers

Mary

Mary Wong

Senior Policy Director

Internet Corporation for Assigned Names & Numbers (ICANN)

Telephone: +1 603 574 4889

Email: mary.wong@icann.org <mailto:mary.wong@icann.org>

From: Phil Corwin <psc@vlaw-dc.com <mailto:psc@vlaw-dc.com>> Date: Wednesday, November 4, 2015 at 11:49 To: Mary Wong <mary.wong@icann.org <mailto:mary.wong@icann.org>>, "gnso-ppsai-pdp-wg@icann.org <mailto:gnso-ppsai-pdp-wg@icann.org>" <gnso-ppsai-pdp-wg@icann.org <mailto:gnso-ppsai-pdp-wg@icann.org>> Subject: RE: [Gnso-ppsai-pdp-wg] Agenda and documents for review on 3 November 2015

Following up on yesterday’s call, and amplifying/further explaining my oral comments in regard to the “Revised Illustrative Draft Disclosure Framework for Intellectual Property Rights-holders” ---

· Section IIA, starting on page 2, addresses situations where “Where a domain name allegedly infringes a trademark” and thus coincides with scenarios where a rights holder could employ the URS (at new gTLDs) or the UDRP (at all gTLDs; and noting that most ccTLDs have adopted similar arbitration procedures) as well as initiate litigation under applicable national laws. The ICANN-adopted RPMs allow an action to be initiated even when the identity of the registrant is not known, and many national laws provide for /In Rem/ filings to address such circumstances.

· Subsection 6a requires the rights holder (or its representative) seeking registrant disclosure to provide a good faith statement that “provides a basis for reasonably believing that the use of the trademark in the domain name -i. allegedly infringes the trademark holder’s rights; and ii. is not defensible”. *Some questions that may require clarifying modifications : 1) Does the phrase “use of the trademark in the domain name” mean that this process is only available where the actual trademark, and not an allegedly confusingly similar variant, constitutes the domain name or is wholly incorporated within it? 2) Given that the rights holder is seeking a lifting of privacy protection chosen by the registrant, is it sufficient that its statement merely recite a basis for believing that the domain name “allegedly infringes” its trademark or should there be a higher threshold – that is, a requirement that the statement allege that the use of the TM in the domain _actually_ infringes its rights? 3) Does the phrase “is not defensible” mean that disclosure should only occur (or at least be seriously considered) when the domain name presents a black-and-white, know-it-when-you-see-it scenario such as that for which the URS is designed? (Noting that in many UDRP cases a defense is raised, and where it is raised it is often successful.)(Further noting that Section III.C.ii and iii allows the provider to refuse disclosure where it has a basis for reasonably believing that “use of the claimed intellectual property is*

*defensible”.)*

· Subsection 6b requires the rights holder or representative thereof to use the Customer’s contact details only for certain purposes, one of which is “in a legal proceeding concerning the issue”. *Is it intended that a URS or UDRP filing fall within the meaning of “a legal proceeding”? If so, can that be clarified as some may assume it only references court proceedings?*

· Subsection 6c requires the Requestor’s statement that it “c) agrees that the Requestor will submit, without prejudice to other potentially applicable

jurisdictions, to the jurisdiction of the courts (1) where the trademark holder is incorporated and (2) where Provider is located for purposes of any disputes arising from alleged improper disclosures caused by knowingly false statements made by the Requester, or from Requester’s knowing misuse of information disclosed to it in response to its request”. *Given that the allegation of an infringing domain name may also be subject to a contemporaneous or subsequent URS or UDRP action, for the sake of completeness should this agreement be expanded to include submitting to the jurisdiction of an accredited dispute resolution provider (DRP) based upon the applicable jurisdiction rules so that such bad conduct could be taken into account to find either abuse of the URS or attempted reverse domain name hijacking under the UDRP?*

· *Noting that, while the UDRP and URS are not always directly applicable, many of these same questions and requests for clarification arise in regard to Section II.C (Domain name resolves to website where trademark is allegedly infringed).*

· Section III.D states, “Disclosure cannot be refused solely for lack of any of the following: (i) a court order; (ii) a subpoena; *(iii) a pending civil action; or (iv) a UDRP or URS proceeding*; nor can refusal to disclose be solely based on the fact that the Request is founded on alleged intellectual property infringement in content on a website associated with the domain name”. *I take issue with the notion that the provider should still continue to determine whether to disclose the customer’s contact information where a related civil action for trademark infringement, or a URS or UDRP, have been initiated (presumably by the rights holder, since it is unlikely that the customer would do so and thereby make its identity known, in which event further consideration of disclosure would be moot). The request for disclosure is based upon allegations of trademark infringement and a court and/or accredited DRP have far greater expertise than a P/P provider to determine whether actual infringement exists. Given that disparity of expertise, my view is that the filing of such action by the rights holder should stay the disclosure request and relieve the provider from any further obligation to decide on it. Allowing the process to continue could result in a situation where privacy is violated and the court or DRP subsequently finds no actual infringement.*

Thank you for considering these questions and views as the WG moves toward a final version of this document.

Best to all,

Philip

*Philip S. Corwin, Founding Principal*

*Virtualaw LLC*

*1155 F Street, NW*

*Suite 1050*

*Washington, DC 20004*

*202-559-8597/Direct*

*202-559-8750/Fax*

*202-255-6172/cell*

**

*Twitter: @VlawDC*

*/"Luck is the residue of design" -- Branch Rickey/*

*From:*gnso-ppsai-pdp-wg-bounces@icann.org <mailto:gnso-ppsai-pdp-wg-bounces@icann.org> [mailto:gnso-ppsai-pdp-wg-bounces@icann.org] *On Behalf Of *Mary Wong *Sent:* Monday, November 02, 2015 5:13 PM *To:* gnso-ppsai-pdp-wg@icann.org <mailto:gnso-ppsai-pdp-wg@icann.org> *Subject:* [Gnso-ppsai-pdp-wg] Agenda and documents for review on 3 November 2015

Dear WG members,

The agenda for our next meeting, on Tuesday 3 November, is as follows. *PLEASE NOTE THE UTC TIME CHANGE* due to daylight savings time in a number of countries – the call will be at 1500 UTC (07:00 PST, 10:00 EST, 15:00 London, 16:00 CET).

1. Roll call/updates to SOI 2. Continued discussion of Illustrative Disclosure Framework (latest version attached – please also see the note below) 3. Discussion of proposed revised text for de-accreditation (see attached draft text) and possible data escrow recommendation 4. Next steps

For agenda item #2, please note that the draft being circulated is still under discussion by Sub Team 3 and is subject to further revision and recommendations by the group. As such, the “redlined” edits that were presented during the Dublin F2F meeting have been retained rather than “accepted” as changes. For your easier review, please note that the main changes since Dublin that incorporate the WG’s discussion points and agreement in Dublin include: (1) clarification in Section III.A regarding an exception to disclosure in cases where personal safety is endangered; and (2) an addition to Section III.C (as sub-section (vii)) to clarify that providers will not need to disclose if the verifiable evidence spelled out in Section II is not fully produced by the requester.

In addition, this current draft includes new language on dispute resolution (see, e.g., Section II.A(6)(c)). The new language was inserted to cover what has been termed “Option 2” in the annex, concerning dispute resolution in the event of disclosure due to improper requests. The Sub Team acknowledges that while this topic was discussed briefly in Dublin, there was no WG agreement on a specific recommendation. The new language in the current draft document – as well as specific edits to the “annex” containing Options One and Two – reflects a suggestion by some Sub Team members to adopt Option Two. This suggestion, which may not reflect the view of all Sub Team members as it is still being discussed, is nevertheless being presented to the full WG for further consideration.

Thanks and cheers

Mary

Mary Wong

Senior Policy Director

Internet Corporation for Assigned Names & Numbers (ICANN)

Telephone: +1 603 574 4889

Email: mary.wong@icann.org <mailto:mary.wong@icann.org>

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