Re: [Gnso-ppsai3] Further UPDATED Public Comment Review Tool

Aug. 4, 2015

      Hello again everyone  please find attached the latest version of this Sub
Team¹s Public Comment Review Tool, dated 4 August (today). As noted
previously, this version incorporates: (1) all the additional comments made
in response to the WG¹s preliminary recommendations #1-9 but that directly
addressed Annex E issues (which have therefore been moved to this Sub Team¹s
Tool from the overall WG Tool); and (2) a row each for the Respect Our
Privacy emails and another for the Save Domain Privacy petition.

I¹ve highlighted all the additions in yellow for ease of comparison
to/reference with the previous version of the Tool from last week (in case
you have already begun working off that document). You can easily remove the
yellow highlights. 

Note also that instead of giving a specific count for the Respect Our
Privacy emails, I¹ve used a ballpark figure. This is because, even with the
various Excel spreadsheets and tabular sorting that we are working with
(courtesy of ICANN IT and Tucows/Graeme), I¹m concerned that we may have
missed a few here and there, or counted some as ³false positives² of a sort.
I¹m therefore using a rounded-off figure that I think we can all comfortably
stand by.

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 Mary Wong
<mary.wong@icann.org>
Date:  Tuesday, August 4, 2015 at 14:26
Cc:  "gnso-ppsai3@icann.org" <gnso-ppsai3@icann.org>
Subject:  Re: [Gnso-ppsai3] UPDATED Public Comment Review Tool - questions
about inclusion
...
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. I¹ll be
going through the current WG Public Comment Review Tool (Part 1, covering the
WG¹s preliminary recommendations #1 through #9) to pick out those additional
comments that, though ³attached² to a different recommendation or question, is
actually more directly relevant to the scope of this Sub Team. What this
means, I¹m afraid, is that there will most likely be an updated version of the
Sub Team¹s Review Tool (i.e. the Word document that you¹re 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 WG¹s preliminary recommendations except for those being covered by the
Sub Teams) there may yet be further updates.
I¹m 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, I¹m happy to do that (per Kathy¹s suggestion on the call today)
while I¹m 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
From: <gnso-ppsai3-bounces@icann.org> on behalf of "Williams, Todd"
<Todd.Williams@turner.com>
Date: Tuesday, August 4, 2015 at 09:55
To: Kathy Kleiman <kathy@kathykleiman.com>, Holly Raiche
<h.raiche@internode.on.net>
Cc: "gnso-ppsai3@icann.org" <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,
I¹ve been working backward from what Sub-team 1.3.2 presented last week,
which I¹ve 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 WG¹s 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 WG¹s 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 ³Respect our Privacy² submissions should be analyzed in this
paragraph.  I also agree with Holly¹s point though that in this paragraph we
should note that the ³Respect our Privacy² submissions took a more extreme
position than others (like Google¹s, for example), in that they argued that
P/P Providers can only disclose and/or publish following a court order, and
didn¹t 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 WG¹s 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 ³verifiable evidence of wrongdoing² 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 ³higher
standard.²  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
we¹re not sure what to do with.
That¹s 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 doesn¹t touch on LE requests, my thought is
that we should leave analysis of comments on LE to the other sub-teams (I¹m
pretty sure LE would fall in both sub-team 1 and sub-team 4¹s work).  Not
that I¹m 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 Mary¹s email (attached): I agree that I¹m 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, we¹re certainly planning to do), then I don¹t see
why we¹d 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, that¹s fine.  I just don¹t
see how that helps us get to our final work product.
·       Finally, one quick point: I see our sub-team¹s 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.  I¹m 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] On
Behalf Of Kathy Kleiman
Sent: Tuesday, August 04, 2015 5:49 AM
To: Holly Raiche <h.raiche@internode.on.net>
Cc: 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 I¹d 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 one¹s personal information
should be revealed without a court order, regardless of whether the request
comes from a private individual or law enforcement agency². (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, I¹d 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.
...
I²ll 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> 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 one¹s 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. I¹ll 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 members¹ questions, and why we emphasize that our compilation/edits
don¹t replace WG members¹ 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 WG¹s/Sub Team¹s 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). I¹ve taken a quick look through my
documents/collected comments and don¹t believe I have missed out any
others; however, I will do a more thorough check shortly on all the Word
documents I¹ve compiled to date for all the Sub Teams, just to be sure.
On the approach - from the staff perspective, Todd¹s 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 Todd¹s initial sweep, and
in doing so also note any comments that didn¹t 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 it¹s my machine or more likely that I haven¹t looked
through it in detail, but I¹m 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 we¹ll need to be by 8-11, which in turn
> might help us decide what we¹ll 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.  I¹d recommend
> that we do the same.  Here are the two that I¹d 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 ³divide and conquer² the work that we have before
> us (much like the 1.3.2 sub-team did).  Second, I¹m not really sure how
> we¹d 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 isn¹t arguing for changes to Annex
> E; it¹s arguing to scrap Annex E altogether.
> 
>  
> 
> With those two buckets in mind, I¹ve 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 I¹ve tentatively divided the
> comments?  Once we¹re 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 ³unclear² 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?  I¹m 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 Turner¹s comment (available
> here:http://forum.icann.org/lists/comments-ppsai-initial-05may15/pdfrXQ3
> VcnSR7.pdf 
> <http://forum.icann.org/lists/comments-ppsai-initial-05may15/pdfrXQ3VcnS
> R7.pdf> ) had some thoughts on Annex E.  Yet it wasn¹t included in the
> attached.  And I only know that it mentions Annex E because I drafted
> it.  J  So I want to make sure that there aren¹t 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
> 
>  
> 
> ·        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 Int¹l 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 O¹Dell
> 
> 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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Mary Wong

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