New subject: UPDATED Public Comment Review Tool - questions about inclusion

Aug. 10, 2015

      Thanks Vicky.

For everybody: the more I've thought about it, the more I've come to the conclusion that we're probably not going to resolve our differences on how to interpret "verifiable evidence" before 10:00 AM tomorrow.  So in the interest of being able to circulate something to the WG before our call, I propose that the only reference to the SDP submissions in our document be something like:

We also note that the Save Domain Privacy petition - which had 10,042 signatories and also included [x] number of comments - 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.

And then Kathy, Sara, and I can each just take a little bit of time on the call tomorrow to explain our respective suggested interpretations of "verifiable evidence" to the larger WG and leave it to them.  What does everybody think of that?

TW.

From: Victoria Sheckler [mailto:vsheckler@riaa.com]
Sent: Monday, August 10, 2015 5:01 PM
To: Williams, Todd <Todd.Williams@turner.com>; Mary Wong <mary.wong@icann.org>; gnso-ppsai3@icann.org
Subject: RE: [Gnso-ppsai3] UPDATED Public Comment Review Tool - questions about inclusion

Please wait for my comments before distributing anything to the broader group. I will send them tonight.

From: gnso-ppsai3-bounces@icann.org<mailto:gnso-ppsai3-bounces@icann.org> [mailto:gnso-ppsai3-bounces@icann.org] On Behalf Of Williams, Todd
Sent: Monday, August 10, 2015 4:50 PM
To: Mary Wong; gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>
Subject: Re: [Gnso-ppsai3] UPDATED Public Comment Review Tool - questions about inclusion

Thanks Mary.  No, I'm not putting my name on this.  Nobody has responded to the questions that I raised earlier today (see attached).  And we still don't have Vicky's comments.  Just to reiterate my problems with the attached:

*        The attached says that our sub-team is debating whether "verifiable evidence of wrongdoing" either means court order or "a higher standard of evidence and proof in Annex E (which is not currently a "verifiable evidence" standard) before disclosure."  But that is not an accurate representation of our internal debate, as I've outlined in the attached emails.  I'm fine telling the WG that we can't decide how to interpret "verifiable evidence" (though I still don't understand how to interpret "verifiable evidence" to mean "court order").  But if we do so, we at least have to accurately reflect what the competing arguments are.

*        I don't understand the statement that "the sub-team noted but has not yet evaluated the 11,000 comments received from commenters arriving from the Respect Our Privacy website.  These commenters, each individually, urged a rejection of Annex E in favor of due process as defined by judicial process" and that "The sub-team is continuing to review and weigh these comments."  What does that mean?  I thought from the attached email exchange that we were adding a bullet point to Category Two (after the bullet point about Key Systems) about those comments.  Why are we now saying that we haven't evaluated them and that we'll continue to review and weigh them?  What does that mean?

*        I don't understand the long inclusion of arguments from Jeff Wheelhouse, Simon Kissane, ICA, EasyDNS, Endurance, and Donuts.  To be precise: I'm fine if this sub-team wants to provide argumentation in the document.  But if we're going to do that, then we need to do it fairly, to give the WG an accurate representation.  So I'll go back through my section and include the argumentation from INTA, MPAA, RIAA, Turner, etc., which I intentionally left out of my draft, because I was trying to keep this document as neutral as possible (because that was how I viewed the objective of our sub-team: to fairly report back to the larger WG).  Obviously, to the extent that the comments I analyzed presented arguments on two sides of a question (e.g., why the cost-recovery provision in Section I(B)(iii) should stay or go), then I tried to fairly and succinctly summarize those arguments on both sides, for the benefit of the WG.  But I think the only other argumentation that I included was the one sentence from individual commenter Mike Fewings.

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: Monday, August 10, 2015 4:00 PM
To: gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>
Subject: Re: [Gnso-ppsai3] UPDATED Public Comment Review Tool - questions about inclusion

Thanks, Sara! If it's all right with everyone, I'll send this version around to the WG, noting that it is still a draft under discussion by the Sub Team and as such there may be further updates on the call tomorrow (bearing in mind that Vicky has indicated she may have some comments tonight). Additionally, I can also note that some of the language in the draft is also still under discussion by the Sub Team, and some of the issues the Sub Team is discussing will be highlighted during the update to the WG.

Let me know if you would prefer another approach. Thanks!

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: Sara Bockey <sbockey@godaddy.com<mailto:sbockey@godaddy.com>>
Date: Monday, August 10, 2015 at 13:32
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: Sara Bockey <sbockey@godaddy.com<mailto:sbockey@godaddy.com>>
Subject: Re: [Gnso-ppsai3] UPDATED Public Comment Review Tool - questions about inclusion

Mary,

Attached is the summary document that now includes my edits.  Since it appears that we are now addressing Save Domain Privacy and Respect Our Privacy in separate paragraphs/sections of this document, I have removed references to both petitions from other sections so that there is no confusion.

Thanks,

Sara

From: Mary Wong
Date: Monday, August 10, 2015 at 9:51 AM
To: Sara Bockey, "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>"
Subject: Re: [Gnso-ppsai3] UPDATED Public Comment Review Tool - questions about inclusion

Hi Sara - sorry, I haven't yet combined your document with Kathy's; please feel free to use whichever works best for you (e.g. dropping your document, with edits, into Kathy's, or just editing yours and sending it back to me). I attach both for your convenience. If I've missed out a version that came in after these, please, everyone, let me know!

Thanks so much!

Cheers
Mary

From: Sara Bockey <sbockey@godaddy.com<mailto:sbockey@godaddy.com>>
Date: Monday, August 10, 2015 at 12:31
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: Sara Bockey <sbockey@godaddy.com<mailto:sbockey@godaddy.com>>
Subject: Re: [Gnso-ppsai3] UPDATED Public Comment Review Tool - questions about inclusion

I'm having a hard time locating the latest document.  Do we have all the "bucket" comments in one document yet?  If so, can someone circulate it?

Thanks!

From: <gnso-ppsai3-bounces@icann.org<mailto:gnso-ppsai3-bounces@icann.org>> on behalf of Mary Wong
Date: Monday, August 10, 2015 at 9:02 AM
To: "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>"
Subject: Re: [Gnso-ppsai3] UPDATED Public Comment Review Tool - questions about inclusion

Hi Todd, yes, certainly - thank you! Actually, my second suggestion was really meant to have us just include a description of the 4 categories (buckets) somewhere in the document, preferably early on. I agree that any conclusion about the petition comments shouldn't be included unless the Sub Team has agreed on it. As has been the case elsewhere, it may also be possible to "square bracket" or otherwise highlight the options/differences under consideration, should that be a more appropriate alternative before tomorrow.

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: "Williams, Todd" <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>>
Date: Monday, August 10, 2015 at 11:54
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>>
Subject: RE: [Gnso-ppsai3] UPDATED Public Comment Review Tool - questions about inclusion

Thanks Mary.  To your last point: I think the question of whether the 10,042 signatures from the Save Domain Privacy petition support or oppose the basic premise of Annex E is what we're debating.  So no, we shouldn't use that sentence until we've decided that point.

I think we've still got some good emails going on these open questions.  But we shouldn't hold up your sending out the agenda.  Could you send out the agenda noting that our sub-team will be presenting, but then circulate our final document later once it's done (but before tomorrow morning obviously)?

From:gnso-ppsai3-bounces@icann.org<mailto:gnso-ppsai3-bounces@icann.org> [mailto:gnso-ppsai3-bounces@icann.org] On Behalf Of Mary Wong
Sent: Monday, August 10, 2015 11:38 AM
To: gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>
Subject: Re: [Gnso-ppsai3] UPDATED Public Comment Review Tool - questions about inclusion

Dear all,

As I'm preparing to send out the agenda for the WG call tomorrow, along with associated documents, I'm trying to consolidate Kathy's edited document with Sara's review that wasn't in Kathy's version. I also thought to offer the following suggested edit to the language around "verifiable evidence" for your consideration:

"The sub-team is working to better understand the meaning of "verifiable evidence of wrongdoing" and whether these commenters intended for this wording to seek a different or more specific standard for revealdisclosure, namelysuch as a court order in which the court "verifies" the abuse or infringement alleged with a specific judicial finding, or alternatively, whether the commenters seek a higher standard of evidence and proof in Annex E (which isdoes not currently specify what is a "verifiable evidence" standard) before disclosure. In this regard the sub-team notes that many signatories to the petition also added specific comments that may refer to this standard. These comments are currently under review."

The other suggestion I had was to reorganize the document slightly, to make it clearer what the "buckets" are. In this regard, I suggest moving up the following summary from Sara to where Kathy's insertions began (after the specific suggestions for Annex E and before Darcy's additions):

"Our sub-team also reviewed and analyzed 39 comments - including one with 10,000+ signatures from the Respect Our Privacy petition and one with 10,042 signatures from the Save Domain Privacy petition - that oppose the basic premise of Annex E.  The comments fell into 1 or 4 categories:
Category 1 - No disclosure/publication ever.
Category 2 - No disclosure/publication unless following a court order.
Category 3 - No disclosure/publication unless following a court order or other legal process (such as a UDRP)
Category 4 - No disclosure/publication unless following a court order or other legal process (such as a UDRP), but with some exceptions for cases of abuse."

Please let me know if you have any comments or objections to the above. 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: "Williams, Todd" <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>>
Date: Monday, August 10, 2015 at 10:13
To: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>, 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] UPDATED Public Comment Review Tool - questions about inclusion

Thanks Kathy.  My thoughts on the attached:

*       My only point on the "contested vs. uncontested" language was to distinguish those suggested changes to Annex E for which we received comments on both sides of a question vs. those suggested changes for which we did not.  Mainly it was just to distinguish the final two paragraphs conceptually.  But your changes serve that same purpose well.

*       I don't understand why we would include "while seeking significantly higher standards for disclosure and options to disclosure" in the third paragraph.  We get to what changes the various comments suggested (including which comments asked for higher disclosure standards, and which asked for lower) later in the document.  That third paragraph is just noting which comments supported certain sections of Annex E.  Plus I'm not sure that all of the comments mentioned in that third paragraph did in fact seek "significantly higher standards for disclosure."

*       Isn't the analysis of the 11,000 comments from Respect our Privacy contained in Sara and Holly's section (see attached)?  Why would we reference them twice?

*       Darcy's analysis of the "miscellaneous" bucket looks great.  Many thanks Darcy - in many ways I think you took the most difficult part, because sometimes it's hard to make sense of how exactly those comments were relevant!

Finally: for the reasons I've already outlined in the attached email, I don't understand why we would say that the process outlined in Annex E "is not currently a verifiable evidence standard."  As I mentioned before, the "evidence" that Annex E requires, as outlined in Sections II(A), (B), and (C), is extensive.  So I don't see any argument why Annex E wouldn't meet the "evidence" part of "verifiable evidence."

So I think what we're really trying to interpret is "verifiable."  And Kathy in the attached has offered the interpretation that "verifiable" means "a court order in which the court 'verifies' the abuse or infringement alleged with a specific judicial finding."  But if that was the correct interpretation, wouldn't the word be "verified" instead of "verifiable"?  If a court has issued an order, then it has already done the verifying.

Rather, I think the basic plain meaning of "verifiable" - and hence the meaning that we should assume the 10,000+ supporters signed on to - is simply "able to be checked or proved."  So it seems much simpler to read "verifiable" to support the portions of Sections III(A), (B), and (C) of Annex E that give P/P Providers the ability to verify the evidence submitted by a Requester by notifying the P/P Customer of the complaint, reviewing the P/P Customer's response, and then responding to the Requester with either disclosure or its reasons for refusing to disclose - which reasons may come from either the Customer under Section III(C)(ii), or from the P/P Provider's own investigation under Section III(C)(iii).  In other words, the most plausible reading of "verifiable" is that it simply means that it is not enough for the Requester to provide any evidence and then disclosure automatically follows.  Rather, the evidence must be capable of being verified.  Which is what Section III provides.

From: Mary Wong [mailto:mary.wong@icann.org]
Sent: Sunday, August 09, 2015 7:08 PM
To: Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>>; Williams, Todd <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>>; gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>
Subject: Re: [Gnso-ppsai3] UPDATED Public Comment Review Tool - questions about inclusion

Thanks everyone, that is a lot of work and a document that will clearly help advance the WG's progress quite a bit!

Kathy - can I confirm that the document you edited is Darcy's update to Todd's last version, and so does not include what was added/sent by Sara? I'm trying to keep all the drafts clear and ordered, and that's what it looks like to me. If that's the case, I will add Sara's report to Kathy's document (unless there are further changes between now and the WG call on Tuesday). I'll then upload the consolidated draft document and have that ready for the WG at the Tuesday meeting.

All - it seems to me that the question as to where the comments relating to "verifiable evidence" should fit is a question that you may wish to bring back to the WG on Tuesday, if there is still no agreement amongst yourselves by then.

Finally - two minor suggested changes, both to do with numbers: first, I'd suggest that instead of saying 10,042 comments came with the Save Domain Privacy petition we should say that the petition had 10,042 signatories. Secondly, I suggest adding the word "approximately" to the 11,000 Respect Your Privacy comments.

I hope this helps, and thank you all again. Following the WG call on Tuesday, please let me know how you would like to proceed and if there is a need for the Sub Team to get together for a call to discuss its final recommendations to the WG (due in about 2-3 weeks from this Tuesday, according to the current WG Work Plan).

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 Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>>
Date: Sunday, August 9, 2015 at 18:40
To: "Williams, Todd" <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>>, "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>>
Subject: Re: [Gnso-ppsai3] UPDATED Public Comment Review Tool - questions about inclusion

Hi Todd and All,
Nice job! I reviewed the entire document and attached is my crack at our summary. I think it includes everyone additions and edits to date (but please check!).

I've lost track of who drafted what sections, but I think we are moving in the right direction. Some really good work has been done. I made one small change and two bigger ones and few general edits. The small change is removing the reference to contested and uncontested edits since I am not sure what an uncontested edit and whether commenters would have contested it if they knew what the proposed edit would be. (Unfortunately, since our "Reply Comment" period was removed by ICANN, we don't have this important reply time to review others edits and support or contest them.).

I also added in two short paragraphs. The first one describes the Save Domains Privacy comments, the petition language, and the discussion now in place in our sub-team over the meaning of these comments. Perhaps others in the WG can help us shed light on the questions being raised in our sub-team.

The second paragraph summarizes the 11,000 Respect Our Privacy comments. They told us that "No one's personal information should be revealed without a court order," and of course, we should reflect them in our summary.

On my machine, my redlines appear in red, and the prior editor's redlines (for the paragraphs at the end starting "Finally, our sub-team reviewed and analyzed 21 miscellaneous comments...") appear in grey.  I hope these redlines are clear for you too.

Best and enjoy the rest of the weekend,
Kathy

:
Kathy:

Attached is my first crack at our portion of the summary (on the Bucket Two comments).  Let me know if you have any suggested edits, additions, subtractions, etc.

Also, I've copied the entire sub-team mailing list on this email, for two reasons:

1)     So that there is a transparent public record of any back-and-forth red-lining of the document that we may do; and

2)     So that Sara and Holly for Bucket One, and Darcy for our miscellaneous bucket, can see what I envision for our summary report to the WG.  If you all want to add your summaries to this one to make it consistent in terms of formatting, etc., feel free.

I had one thought Sara and Holly for Bucket One (which came to me as I was conceptually dividing our Bucket Two comments into general support, specific support, suggested changes by addition, suggested edits uncontested, suggested edits contested): it may be helpful for the WG if we divide our Bucket One comments into categories along a spectrum.  As I envision it (in order along the spectrum):

1)     No disclosure/publication ever.

2)     No disclosure/publication unless following a court order.  I would put the 10,000+ "Respect our Privacy" comments here.

3)     No disclosure/publication unless following a court order or other legal process (such as a UDRP).  E.g., I think the Google comment would go here.

4)     No disclosure/publication unless following a court order or other legal process (such as a UDRP), but with some exceptions for cases of abuse.  E.g., I think the ICA and EasyDNS comments would go here.

For the WG's sake, we may also want to distinguish between those Bucket One comments that couched their discussion of disclosure/publication in terms of what P/P Providers ought to be required to do (or not required to do) in response to external third-party disclosure requests such as from IP owners or LEA (e.g., the Google and Key Systems comments) vs. those Bucket One comments that simply said "no publication/disclosure absent a court order" without distinguishing b/w whether the impetus for the disclosure was an external third-party request or the P/P Provider's own desire to disclose/publish (e.g., the 10,000+ "Respect our Privacy" comments).

Thanks all!

TW.

From: Williams, Todd
Sent: Wednesday, August 05, 2015 10:06 AM
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>
Subject: RE: [Gnso-ppsai3] UPDATED Public Comment Review Tool - questions about inclusion

Whoops, I left out Jawala at the bottom, who should go in bucket two.  Sorry.

From:gnso-ppsai3-bounces@icann.org<mailto:gnso-ppsai3-bounces@icann.org> [mailto:gnso-ppsai3-bounces@icann.org] On Behalf Of Williams, Todd
Sent: Wednesday, August 05, 2015 10:01 AM
To: Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>>; gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>
Subject: Re: [Gnso-ppsai3] UPDATED Public Comment Review Tool - questions about inclusion

Yes, thanks Mary.  Of the highlighted additions in the attached, I've added the comments from Stefan Grunder, Reagan Lynch, Reid Baker, and the Save Domain Privacy petitioners to the second bucket that Kathy and I are reviewing/summarizing (accept premise of Annex E, but with changes).  I think the highlighted comments from Dan M, Simon Kissane, Adam Creighton, Jason Weinberg, J Wilson, Dylan Henderson, M.B., and the Respect our Privacy submissions should go in the first bucket that Holly and Sara are reviewing/summarizing (reject premise of Annex E).  Thanks.

From:gnso-ppsai3-bounces@icann.org<mailto:gnso-ppsai3-bounces@icann.org> [mailto:gnso-ppsai3-bounces@icann.org] On Behalf Of Kathy Kleiman
Sent: Tuesday, August 04, 2015 6:47 PM
To: gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>
Subject: Re: [Gnso-ppsai3] UPDATED Public Comment Review Tool - questions about inclusion

Tx Mary!
Kathy
:
Thanks again, Todd, Kathy, Holly and everyone - this is just a note to follow up on one portion of the discussion during the WG call earlier today. I'll be going through the current WG Public Comment Review Tool (Part 1, covering the WG's preliminary recommendations #1 through #9) to pick out those additional comments that, though "attached" to a different recommendation or question, is actually more directly relevant to the scope of this Sub Team. What this means, I'm afraid, is that there will most likely be an updated version of the Sub Team's Review Tool (i.e. the Word document that you're working off of). I will try to get that to you all as soon as I possibly can - with the caveat that as I complete preparation of the WG Tool Part 2 (covering the remainder of the WG's preliminary recommendations except for those being covered by the Sub Teams) there may yet be further updates.

I'm happy to help update any existing summary documents you may already have as a result, of course, and, Todd, to your point about adding an extra row to the existing Tool to reflect the Save Domain Privacy comment in their petition, I'm happy to do that (per Kathy's suggestion on the call today) while I'm doing the current update anyway.

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, August 4, 2015 at 09:55
To: Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>>, Holly Raiche <h.raiche@internode.on.net<mailto:h.raiche@internode.on.net>>
Cc: "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>>
Subject: Re: [Gnso-ppsai3] UPDATED Public Comment Review Tool - questions about inclusion

Thanks Kathy and Holly.  Just to summarize where I think we are (and again, I've been working backward from what Sub-team 1.3.2 presented last week, which I've attached - I assume that what our sub-team will present next week will look something like that):

*       First there will be a paragraph (or bullet point or however we want to style it) discussing those comments that argued that the WG's proposed accreditation standards should hold that P/P Providers can never disclose and/or publish under any circumstances.  This section will discuss: how many of those comments were there, who did they come from, what did they argue.

*       Next there will be a paragraph discussing those comments that argued that the WG's proposed accreditation standards should hold that P/P Providers can only disclose and/or publish following a court order, subpoena, or other legal process.  Again, this section will discuss: how many of those comments were there, who did they come from, what did they argue, etc.  I agree with Kathy that the "Respect our Privacy" submissions should be analyzed in this paragraph.  I also agree with Holly's point though that in this paragraph we should note that the "Respect our Privacy" submissions took a more extreme position than others (like Google's, for example), in that they argued that P/P Providers can only disclose and/or publish following a court order, and didn't accept that other legal or ICANN-recognized processes (such as a UDRP for example) could suffice.

*       Next there will be a paragraph discussing those comments that argued that our WG's proposed accreditation standards should hold that P/P Providers can sometimes disclose and/or publish absent a court order, subpoena, or other legal process, but then offered thoughts as to whether and how the Disclosure Framework outlined in Annex E ought to be modified.  My plan for this paragraph was to first have a general summary of whose comments fell in this category.  And I agree with Kathy that the Save Domain Privacy petition signatories fit here, in that "verifiable evidence of wrongdoing" is what II(A), (B), and (C) of Annex E contemplate.  Following that summary, my plan was then to list each proposed change to the language of Annex E (perhaps in a bullet point format), followed by who recommended it, and what their arguments were for it.  That said, I disagree with Kathy that each of those comments and all of those suggested changes will necessarily be to a "higher standard."  From my initial review, I think the comments are going to recommend changes in both directions, which we ought to reflect in the summary.

*       Finally there will be a paragraph discussing those comments that we're not sure what to do with.

That's how I see our task anyway.  So far we have Sara and Holly writing the first draft of the first two paragraphs, me and Kathy writing the third, and Darcy writing the fourth (though of course we can all edit the final before it goes to the entire WG).  Let me know if anybody else wants to join.  And with that, my quick thoughts on some of the bigger-picture points below:

*       Given that our summary will only be on what commenters said about Annex E, and given that Annex E doesn't touch on LE requests, my thought is that we should leave analysis of comments on LE to the other sub-teams (I'm pretty sure LE would fall in both sub-team 1 and sub-team 4's work).  Not that I'm not interested in LE - just that we have plenty of work as it is, without duplicating work that is being handled by other sub-teams.

*       In response to Mary's email (attached): I agree that I'm not sure that I see the utility of adding the form-based submissions to the compiled template/matrix Word doc.  As I understand it, the attached Word doc is just a tool to help us get to our final work product, which is the summary presentation to the rest of the WG.  If we make a point to discuss the form-based submissions in our summary presentation to the rest of the WG (which, as I noted above, we're certainly planning to do), then I don't see why we'd need to add columns to the attached Word doc for each of those.  I mean, if somebody wants to take the time to do so, that's fine.  I just don't see how that helps us get to our final work product.

*       Finally, one quick point: I see our sub-team's role, and the role of the summary that we are to present to the entire WG next week, as purely descriptive.  In other words: what did the comments say?  To the extent that there is going to be any normative or substantive discussion that goes one step beyond that - OK, this is what the comments said, but now what do we do about that? - I think that has to be left to the entire WG to debate after we present our summary.  I'm just throwing out that reminder b/c I think it will help keep our work easier.

Thanks all!

From:gnso-ppsai3-bounces@icann.org<mailto:gnso-ppsai3-bounces@icann.org> [mailto:gnso-ppsai3-bounces@icann.org] On Behalf Of Kathy Kleiman
Sent: Tuesday, August 04, 2015 5:49 AM
To: Holly Raiche <h.raiche@internode.on.net<mailto:h.raiche@internode.on.net>>
Cc: gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>
Subject: Re: [Gnso-ppsai3] UPDATED Public Comment Review Tool - questions about inclusion

Hi All,
I support the division of comments into buckets as Todd has created and Holly has revised.  Do we have four buckets now? Below (and preceeded by "==>") I show where the two large groups of missing comments might go. Tx!
Hi Everyone

First- sorry not to follow up sooner.  And Todd - I agree with the refined break up into three buckets- with an additional element or so.

The first category is clearly no, not ever, under any circumstances.  All that is needed from us is to count the comments and where they are from.

==> So bucket one, no disclosure ever.
The second is one I'd like to expand a bit - and see where that gets us.  As Todd and I suggest, it is a category  that specifically states the need for a legal process. (it is framed variously as court order court process, Subpoena) My suggestion is that the overall heading is no reveal unless there has been a legal process of some sort in the relevant jurisdiction.  The wrinkle here is that, under an ICANN dispute resolution process (e.g., UDRP) where details of the customer would be revealed. Given this is a recognised ICANN process in which details are already revealed, my suggestion is to characterise th category in that way.
==> Bucket Two, disclosure of data to private parties and law enforcement only subject to court order. This is where the "Respect our Privacy" thousands of individual submissions fits: "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". (Mary, do we happen to have a final count of these individual submission?)

My reading of both categories is to say that Annex E is not necessary for either.  (and Kathy - the comments you refer to below would fit into the first or second basket)

The third category is the only one that goes beyond what is already required to suggest there may be other circumstances where the contact details of the customer would be revealed to a third party that is either not part of an ICANN process or a court process.  And the challenge will be to work through what those situations are.

==> Bucket Three (formerly Two) is now the one that accepts the premise of Annex E, as Holly and Todd have laid out, but offers thoughts on how to change the Disclosure Framework to the higher standards requested by commenters. The question for me is what bucket the 11,000 Save Domain Privacy petition signatories fit in: they wrote "Privacy providers should not forced to reveal my private information without verifiable evidence of wrongdoing."  Can Annex E be revised to raise the standard to require "verifiable evidence of wrongdoing" w/o a court order? If so, what changes must be made in Annex E to meet this higher standard? If not, do these 11,000+ petition signatures really belong in [revised] Bucket 2, court order? I look forward to our discussions ahead!

My next query is where we put Law Enforcement Agency requests.  If they have a warrant, I'd suggest that we put them in the second category - in most jurisdictions, warrants are not granted without some kind of judicial oversight.    Without a warrant (or some judicial oversight), requests by Law Enforcement/Security requests would be under some kind of Annex.
==> Holly, do I understand right that this might be a new Bucket Four - LE w/o CO -- Law Enforcement w/o Court Order.  I think it makes sense and I would like to see where the comments fall on this issue. Plus Annex E is only for private individuals/private attorneys/private companies. So now seems to be a good time to break out informal LE requests into its own category.
I"ll be having a look at that third category

My other way of looking at this issue is whether or not the relevant p/p provider must make some sort of judgment call.  For the first category - the answer is a simple NO.  For the second category, there is either some sort of judicially approved document for that jurisdiction or an approved ICANN process -  or not.  It is only in the third category that the providers must make a judgment call on whether the requirements are met, or not.

==> Quick note, we still need the miscellaneous bucket that Todd created for "unclear" bucket, so [renamed] Bucket Five = unclear? Best, Kathy
Happy to discuss

Holly

On 4 Aug 2015, at 8:44 am, Kathy Kleiman <Kathy@kathykleiman.com<mailto:Kathy@kathykleiman.com>> wrote:

Hi Mary and All,
Glad to be with you on this subteam 3 and looking forward to our discussion.

Mary, I was very glad to see that Turner Broadcasting comments had been included in this comment summary. Let me ask about the 10,000+ comments we received, the vast majority entitled: ICANN- Respect Our Privacy. All of these comments contain a clear call:
- 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.

Sorry if I missed it, but is this call from so many thousands of commenters for not disclosing p/p data to a private individual (which would include a private lawyer) reflected in our comment summary tool?

Best and tx,
Kathy

:
Dear all,

Please find an updated Word document that now INCLUDES the extensive comments from Turner Broadcasting System (once again, thanks for spotting this omission, Todd!). They have been inserted into ROW 19 for the first question/topic (General Comments) on PAGE 16, and ROW 7 for the second question/topic (Specific Comments on the Framework Language) on PAGE 39.

Apologies again for the inadvertent omission - they have been added to these rows and pages simply to retain the chronology of when they were received, to maintain consistency across all the templates. I'll update the Sub Team wiki page accordingly.

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 Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>
Date: Thursday, July 30, 2015 at 18:06
To: "Williams, Todd" <Todd.Williams@turner.com<mailto:Todd.Williams@turner.com>>, "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>>
Subject: Re: [Gnso-ppsai3] Thoughts on a work plan

Hello Todd and everyone,

Welcome to the Sub Team 3 (Annex E) mailing list!

Todd - I think you just found an omission from staff (me), for which I apologize. I definitely had the Turner comment in my compilation of comments and documents, but I think what happened is that in formatting the table for the Word document I somehow managed to edit that out. I am very sorry, and thanks for noting it! This is exactly why staff welcomes WG members' questions, and why we emphasize that our compilation/edits don't replace WG members' reading the comments themselves if possible. At the same time, I do hope you all know that we try our best to do as thorough and comprehensive a job as possible, so a combination of our efforts and a WG's/Sub Team's eagle eyes is the best arrangement.

Basically, we read through all the comments that appeared to address specific recommendations and/or open questions, and we also read all the online template responses that do the same. The Word document is therefore the compilation of all of these, tailored to each Sub Team (or the full WG, as appropriate). I've taken a quick look through my documents/collected comments and don't believe I have missed out any others; however, I will do a more thorough check shortly on all the Word documents I've compiled to date for all the Sub Teams, just to be sure.

On the approach - from the staff perspective, Todd's suggested approach seems to make sense, and would align pretty well with what we ourselves would probably have suggested. You could start with two smaller groups to tackle the two categories suggested, based on Todd's initial sweep, and in doing so also note any comments that didn't address either - so that they can either be referred to the appropriate Sub Team (if any) or considered by the full WG (if appropriate).

BTW, Todd, maybe it's my machine or more likely that I haven't looked through it in detail, but I'm not seeing your comments/additions/edits in the document you circulated .... ?

Thanks for kicking things off, and do let me know if you need assistance from staff in any way!

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: Thursday, July 30, 2015 at 16:52
To: "gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>" <gnso-ppsai3@icann.org<mailto:gnso-ppsai3@icann.org>>
Subject: [Gnso-ppsai3] Thoughts on a work plan

Am I the first to try this out?  Cool.

As I mentioned in my email on Tuesday (attached), I thought that the presentation that we had on our last call from the 1.3.2 sub-team was helpful to illustrate where we'll need to be by 8-11, which in turn might help us decide what we'll need to do to get there.  Specifically, I thought it helped that the 1.3.2 sub-team divided their work into two basic questions, and then presented separately on each.  I'd recommend that we do the same.  Here are the two that I'd propose:

1)      Those comments that rejected the premise of Annex E, and instead argued that P/P Providers can never disclose and/or publish absent a court order, subpoena, or other legal process authorizing them to do so.  Presumably this group would present on:
*        How many of these comments were there?
*        Who did they come from?
*        What arguments did they make?
*        What ramifications would these arguments have on other portions of the Initial Report beyond Annex E?
2)      Those comments that accepted the premise of Annex E that P/P Providers can sometimes disclose and/or publish absent a court order, subpoena, or other legal process, but then offered thoughts as to whether and how the Disclosure Framework outlined in Annex E ought to be modified.  Presumably this group would present on:
*        How many of these comments were there?
*        Who did they come from?
*        What arguments did they make?
*        What potential changes to Annex E could the WG make to address the arguments raised in these comments?

I offer those two buckets for a couple of reasons.  First, I think it will help our sub-team "divide and conquer" the work that we have before us (much like the 1.3.2 sub-team did).  Second, I'm not really sure how we'd otherwise substantively reconcile those two buckets of comments.  A comment that argues that P/P Providers should not be allowed to disclose and/or publish absent a court order isn't arguing for changes to Annex E; it's arguing to scrap Annex E altogether.

With those two buckets in mind, I've taken a first pass through the comments in the Review Tool Word Document that Mary circulated (attached).  My thoughts below.  First, can everybody double-check to make sure that they agree with how I've tentatively divided the comments?  Once we're comfortable with that allocation, then perhaps the next step would be to divide our sub-team into two (or three, if some members want to tackle the third "unclear" category) to start reviewing the comments in each bucket and then drafting two documents to present to the WG answering the questions outlined above (and any other questions that anybody wants to suggest).

Finally, one last question for Staff: can you give us a little bit of                    information on the methodology of how the attached Word document was compiled?  I'm just curious because I want to make sure that our sub-team is comfortable that what we are reviewing is exhaustive.  For example, I know that Turner's comment (available here:http://forum.icann.org/lists/comments-ppsai-initial-05may15/pdfrXQ3VcnSR7.pd...) had some thoughts on Annex E.  Yet it wasn't included in the attached.  And I only know that it mentions Annex E because I drafted it.  :)  So I want to make sure that there aren't other comments on Annex E that we also ought to be reviewing.

Thanks.  Look forward to working with everybody.

Todd.

Todd D. Williams
Counsel
Turner Broadcasting System, Inc.
One CNN Center, 10 North
Atlanta, Georgia 30303
P: 404-827-2234
F: 404-827-1994
todd.williams@turner.com<mailto:todd.williams@turner.com>

*        Bucket One: rejects the premise of Annex E.
1)      Internet Commerce Association (though with carve-out for breach of material service terms such as Internet abuse)
2)      Google
3)      1&1 Internet SE
4)      Access Now
5)      Endurance Int'l Group
6)      Jeff Wheelhouse
7)      EasyDNS (though with same carve-out as ICA for breach of service terms such as net abuse)
8)      Greg McMullen
9)      Evelyn Aya Snow
10)   Ralf Haring
11)   Liam
12)   Dr M Klinefelter
13)   Sam
14)   Dan M
15)   Adrian Valeriu Ispas
16)   Not your business
17)   Simon Kissane
18)   TS
19)   Cort Wee
20)   Alex Xu
21)   Kenneth Godwin
22)   Shahed Ahmmed
23)   Sebastian Broussier
24)   Andrew Merenbach
25)   Finn Ellis
26)   Aaron Holmes
27)   Michael Ekstrand
28)   Homer
29)   Donuts
30)   Michael Ho
31)   Key Systems

  *   Bucket Two: accepts the premise of Annex E, but offers thoughts on how to change the Disclosure Framework.
1)      BC
2)      MPAA
3)      ISPCP
4)      CDT, Open Technology Institute & Public Knowledge
5)      INTA
6)      IACC
7)      NCSG
8)      Shardul Amarchand Mangaldas
9)      Cyberinvasion
10)   Phil Crooker
11)   Aaron Myers
12)   Cui (ADNDRC)
13)   Mike Fewings
14)   Name withheld
15)   Gary Miller
16)   Byunghoon Choi
17)   Reid Baker
18)   Nick O'Dell
19)   Time Warner
20)   RIAA & IFPI
21)   IPC
22)   Thomas Smoonlock
23)   Vanda Scartezini
24)   Tim Kramer

  *   Bucket Three: unclear.
1)      Sven Slootweg
2)      Brendan Conniff
3)      Marc Schauber
4)      Aaron Mason
5)      Kevin Szprychel
6)      Christopher
7)      James Ford
8)      Shantanu Gupta
9)      Christopher Smith
10)   Private
11)   Robert Lukitsh
12)   Adam Miller
13)   Charles
14)   Aaron Dalton
15)   Stephen Black Wolf
16)   Ian McNeil
17)   Adam Creighton
18)   Arthur Zonnenberg
19)   Anand S.
20)   Lucas Stadler
21)   Alan

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Re: [Gnso-ppsai3] UPDATED Public Comment Review Tool - questions about inclusion

Williams, Todd

Sara Bockey

Williams, Todd

Mary Wong

Sara Bockey

Holly Raiche

Holly Raiche

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