March 2018 - Gnso-rds-pdp-6

DT6 Presentations to the WG
by consult＠cgomes.com March 12, 2018

March 12, 2018

Please note that the DT6 presentation on Legal Actions is scheduled to occur in our WG meeting on Wednesday afternoon from 3:15 to 6:30 pm AST. Griffin is scheduled to make the presentation followed by input from other team members and discussion by the full WG. Please let me know if there are any issues with this plan. Chuck

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Final Version?
by Chuck March 7, 2018

March 7, 2018

If anyone objects to anything in this version, please communicate what you object to and why not later than 1700 UTC (12 on EST, 9 am PST) tomorrow (Wednesday, March 7). If no objections are communicated, I will accept the relined edits, leave the comment I inserted and send this version as our final deliverable to the WG list. If any objections are communicated, I will note those in the final version and send that version to the WG list. Thanks to everyone for the thought you put into this. Griffin will present our final version in the WG meeting on Saturday morning, other DT6 members may add their comments and WG members and guests will be given an opportunity to discuss it. Keeping in mind that this exercise is intended to help us continue our deliberation on whether the Legal Actions Purpose is a legitimate purpose for processing any RDS data, the answers we give and any objections will hopefully contribute to that deliberation when we get to it. Chuck

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Re: [Gnso-rds-pdp-6] DT6 Answers to Questions - First Draft for DT Review
by Chuck March 5, 2018

March 5, 2018

Thanks for all the excellent discussion on this. In response to all the input, I created a second redline draft that is attached. I would appreciate if not later than mid-day on Monday everyone would review it, suggest any additional edits and answer the following questions either in reply to the comments in the redlined version or by responding below: 1. Should we add web hosting provider to the list of those who should be identified and/or contacted for Question1? 2. Should we add web hosting provider to the list of those who should be identified and/or contacted for Question1 only if name servers are not provided in the RDS? (At this point in time, the WG has agreed that name servers would be in the MPDS.) 3. Should we include the last bullet added at the end of Question 3 as suggested by Vicky? (Note that I tried to express what Vicky communicated but may not have done it accurately so edits are welcome from Vicky and others.) I would also like to ask which of you will be Puerto Rico for our WG meeting on Saturday morning. It would be good if one of you could present our final deliverable to the WG in that meeting. Someone could do it remotely if needed. Chuck From: Victoria Sheckler [mailto:vsheckler@riaa.com] Sent: Friday, March 2, 2018 12:56 PM To: Chuck <consult(a)cgomes.com> Cc: farzaneh badii <farzaneh.badii(a)gmail.com>; RDS PDP DT6 <gnso-rds-pdp-6(a)icann.org> Subject: Re: [Gnso-rds-pdp-6] DT6 Answers to Questions - First Draft for DT Review I read legal authority to mean a court or law enforcement, not ppl seeking civil or prior to litigation relief, which is why I suggested that language. Sent from my iPhone On Mar 2, 2018, at 3:47 PM, Chuck <consult(a)cgomes.com <mailto:consult@cgomes.com> > wrote: Thanks Vicky. Regarding your suggestion to “expect each entity to respond to reasonable requests by non-legal authority contactors”, am I correct in assuming that you mean requests concerning possible legal actions? I am pretty sure that you are not referring to requests from third parties involving domain name abuse mitigation because that is covered by DT7. Chuck From: Victoria Sheckler [mailto:vsheckler@riaa.com] Sent: Friday, March 2, 2018 6:19 AM To: Chuck <consult(a)cgomes.com <mailto:consult@cgomes.com> >; 'farzaneh badii' <farzaneh.badii(a)gmail.com <mailto:farzaneh.badii@gmail.com> > Cc: 'RDS PDP DT6' <gnso-rds-pdp-6(a)icann.org <mailto:gnso-rds-pdp-6@icann.org> > Subject: RE: [Gnso-rds-pdp-6] DT6 Answers to Questions - First Draft for DT Review For the response to the objectives of contacting the entities in question 2, should we break out the sub-bullets by entity to be contacted? That might help clarify some of the questions / comments noted below. Also, wrt to the response to question 3, I would add that I’d expect each entity to respond to reasonable requests by non-legal authority contactors as well. Respond doesn’t mean to comply with the request, but rather acknowledge the request and let the requestor know what action, if any, will be taken. From: Gnso-rds-pdp-6 [mailto:gnso-rds-pdp-6-bounces@icann.org] On Behalf Of Chuck Sent: Thursday, March 1, 2018 3:07 PM To: 'farzaneh badii' <farzaneh.badii(a)gmail.com <mailto:farzaneh.badii@gmail.com> > Cc: 'RDS PDP DT6' <gnso-rds-pdp-6(a)icann.org <mailto:gnso-rds-pdp-6@icann.org> > Subject: Re: [Gnso-rds-pdp-6] DT6 Answers to Questions - First Draft for DT Review You and I agree that managing content is not part of ICANN’s mission. But if a court ordered certain content to be removed, wouldn’t the court need to communicate that order to the registrant, registrar and/or registry? Chuck From: farzaneh badii [mailto:farzaneh.badii@gmail.com] Sent: Thursday, March 1, 2018 11:53 AM To: Chuck <consult(a)cgomes.com <mailto:consult@cgomes.com> > Cc: Griffin Barnett <Griffin(a)winterfeldt.law <mailto:Griffin@winterfeldt.law> >; RDS PDP DT6 <gnso-rds-pdp-6(a)icann.org <mailto:gnso-rds-pdp-6@icann.org> > Subject: Re: [Gnso-rds-pdp-6] DT6 Answers to Questions - First Draft for DT Review Thank you Chuck. Lets see what Griffin has to say since he specifically mentions "content" in the comment I have copy pasted. In response to this:[Chuck Gomes] Part of ICANN’s mission is to coordinate activities associated with domain names, so if there is a possible legal action associated with a domain name, wouldn’t that be related to ICANN’s mission? As you said coordinate regarding "domain names". Not content. Also, not all activities associated with domain names relate to ICANN's mission. Farzaneh On Thu, Mar 1, 2018 at 2:37 PM, Chuck <consult(a)cgomes.com <mailto:consult@cgomes.com> > wrote: Thanks, Farzaneh and Griffin for your input. I encourage others to respond to your comments. Keeping in mind that my roll is to coordinate our task, I am going to make some points and ask some questions that are intended to encourage further discussion. Please do not take my comments as pushing one view over another. First, from a process point of view, remember that our task is to answer the three questions, not to determine whether legal actions is a legitimate purpose for processing any RDS data. The WG as a whole will debate that after we get a better understanding of the proposed legal actions purpose. The DTs are not presently asked to redo the definitions so I suggest that we accept them as they are for now with the understanding that they may have to be revisited later when the WG tries to decide whether legal actions is a legitimate purpose for processing any RDS data. See below for some additional input. Chuck From: farzaneh badii [mailto:farzaneh.badii@gmail.com <mailto:farzaneh.badii@gmail.com> ] Sent: Thursday, March 1, 2018 9:57 AM To: Griffin Barnett <Griffin(a)winterfeldt.law <mailto:Griffin@winterfeldt.law> > Cc: Chuck <consult(a)cgomes.com <mailto:consult@cgomes.com> >; gnso-rds-pdp-6(a)icann.org <mailto:gnso-rds-pdp-6@icann.org> Subject: Re: [Gnso-rds-pdp-6] DT6 Answers to Questions - First Draft for DT Review Hi Chuck and Griffin, The purpose of legal action should be in line with ICANN mission. [Chuck Gomes] Part of ICANN’s mission is to coordinate activities associated with domain names, so if there is a possible legal action associated with a domain name, wouldn’t that be related to ICANN’s mission? This does not appear in the document especially the additions provided by Griffin. [Chuck Gomes] As I said above, it is not our job at this point to decide whether legal actions are a legitimate purpose for processing any RDS data, so I don’t see how putting that in this document is relevant. ICANN should not facilitate content takedown and we have Bylaws provisions that certainly attest to that. Griffin states that:" the purpose would be to determine the identity of the web hosting provider associated with any content located at the domain name and what is the hosting provider's jurisdiction." There is no need to identify web hosting providers as long as it does not relate to ICANN mission and it will be against ICANN bylaws. [Chuck Gomes] I don’t think that is what Griffin said. Here is what I think he said and he can correct me if I am wrong: ‘For the proposed legal actions purpose, the hosting provider and its jurisdiction should be identified so that it could be contacted if needed.’ That is a direct answer to the first question. We in this DT and the full WG can debate whether the hosting provider should be added to answer for question 1. I can personally see some problems with that: 1) hosting providers do not necessarily have any contractual relationship with registrars, so it would be difficult for registrars to fulfill such an RDS requirement unless they provide that service for the registrant; 2) domain name hosting is not a required service for registrars. Also I think the definition is frankly too broad and I think we mentioned this in Abu Dhabi. [Chuck Gomes] See my comment above. Definition: The “legal actions” purpose of RDS includes assisting certain parties( or their legal representatives, agents or service providers) to investigate and enforce civil and criminal laws, protect recognized legal rights, address online abuse or contractual compliance matters, or to assist parties defending against these kinds of activities, in each case with respect to all stages associated with such activities, including: investigative stages; communications with registrants, registration authorities or hosting providers, or administrative or technical personnel relevant to the domain at issue; arbitrations; administrative proceedings; civil litigations (private or public); and criminal prosecutions. All the abovementioned activities should take place to help ICANN carry out its mission and nothing more. [Chuck Gomes] In fulfilling its mission, ICANN has to obey applicable laws as do registries and registrars. Obeying a particular law may or may not help ICANN carry out its mission but it would still have to be obeyed. Additionally, we need to clarify what we mean by legal authority. [Chuck Gomes] Let’s not get hung up on that here. In implementation that would have to be done. Best Farzaneh Farzaneh On Thu, Mar 1, 2018 at 12:06 PM, Griffin Barnett <Griffin(a)winterfeldt.law <mailto:Griffin@winterfeldt.law> > wrote: Thanks for the reminder Chuck. Please find some comments in the attached. Best, Griffin _____ <https://www.winterfeldt.law/> <image001.png> Griffin M. Barnett Associate Winterfeldt IP Group 1200 17th St NW, Ste 501 Washington, DC 20036 <mailto:griffin@winterfeldt.law> griffin(a)winterfeldt.law +1 202 759 5836 <tel:(202)%20759-5836> From: Gnso-rds-pdp-6 [mailto:gnso-rds-pdp-6-bounces@icann.org <mailto:gnso-rds-pdp-6-bounces@icann.org> ] On Behalf Of Chuck Sent: Thursday, March 1, 2018 12:03 PM To: gnso-rds-pdp-6(a)icann.org <mailto:gnso-rds-pdp-6@icann.org> Subject: [Gnso-rds-pdp-6] DT6 Answers to Questions - First Draft for DT Review Importance: High It would be very helpful if each of you could provide your first thoughts on the attached draft TODAY. Note that it is just slightly over one page long. Chuck _______________________________________________ Gnso-rds-pdp-6 mailing list Gnso-rds-pdp-6(a)icann.org <mailto:Gnso-rds-pdp-6@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rds-pdp-6

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DT6 Legal Actions Deliverable Latest Version
by Chuck March 5, 2018

March 5, 2018

Here is the latest version of our deliverable. Note that this is the same one I sent Friday. It seems clear to me that we do not have consensus on adding 'hosting provider' so I provided some approaches to dealing with it below. Farzaneh - Thank for the responses you sent today including supporting Vicky's edits to Q3; please pick one of the choices below for Q1. All - Please pick one of the choices below for Q1 and answer the question for Q3. Question 1 Should we add 'hosting provider'? Please pick one of these choices or suggest a different one: a. Do not add it b. Add it with a comment that we did not reach full consensus and explain the different positions c. Do not add it with a comment that explains why not d. Other: ? Question 3 Should we add Vicky's suggested comment at the end? * "Domain name registrants (or designated representatives), registrars or registries would be expected to respond at their discretion to communications from entities seeking civil or prior to litigation relief. Respond doesn't mean to comply with the request, but rather acknowledge the request and let the requestor know what action, if any, will be taken." (Edits are welcome.) Pleases respond as soon as possible TODAY. Chuck

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DT6 Answers to Questions - First Draft for DT Review
by Chuck March 2, 2018

March 2, 2018

It would be very helpful if each of you could provide your first thoughts on the attached draft TODAY. Note that it is just slightly over one page long. Chuck

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