Hi all,
To quickly clarify my preliminary comments on the document:
Section 1 asks “who associated with the domain name registration needs to be identified and/or contacted for each purpose?” My suggestion here was to also note that a web hosting provider, associated with a
domain name registration, may need to be identified/contacted to fulfil the legal actions purpose (as defined in the document), in addition to the beneficial registrant, registrar/reseller, and registry. The identification of the relevant hosting provider
(if any) is currently accomplished by looking at the name server data which is a public data element in WHOIS. No contractual relationship between the registrar and hosting provider is needed – WHOIS output contains this data element regardless; I’m not
a technical person so I’m not sure exactly how registrars/registries obtain the name server names in order to include the data in the WHOIS output, but it is part of the data.
Section 2 asks “What is the objective achieved by identifying and/or contacting each of those entities?” My comment said
if we add hosting provider to the list under Section 1, the objective achieved by doing so would relate to identifying and being able to contact the hosting provider. As Chuck pointed out, this would be relevant if the legal action involved required
the hosting provider to take some kind of action pursuant to legal process or request of legal authority. As Chuck notes, this is not ICANN managing content, which I agree is not part of ICANN’s mission, but merely shows how RDS facilitates the legal actions
purpose as defined in the document. When I referred to “content” in my comments I was merely using it as a shorthand to refer to a website or other online resource associated with a domain name.
Again, as Chuck pointed out, I was not commenting on the legal actions purpose definition or the legitimacy of this stated purpose for RDS (although I believe it is a legitimate purpose for RDS), but just pointing
out in response to the specific questions in the document that we may want to consider including the hosting provider as a relevant party in the context of legal actions vis-à-vis domain name registrations (again, recognizing that not all domain name registrations
will be associated with a web host) and the reasons why they might be relevant.
I agree that fulfilment of ICANN’s mission is a key criterion for determining the legitimacy of any proposed purpose, including the legal actions purpose. Without delving too deeply right now into a review and
analysis of the ICANN Bylaws, ICANN’s mission includes the stable and secure operation of the Internet’s unique identifier systems, an ecosystem in which web hosts may play a role; hence my suggestion that we consider including them as relevant parties in
this document.
I hope this helps.
Best,
Griffin
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Griffin M. Barnett Associate Winterfeldt IP Group +1 202 759 5836 |
From: Chuck [mailto:consult@cgomes.com]
Sent: Thursday, March 1, 2018 3:07 PM
To: 'farzaneh badii' <farzaneh.badii@gmail.com>
Cc: Griffin Barnett <Griffin@Winterfeldt.law>; 'RDS PDP DT6' <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@cgomes.com>
Cc: Griffin Barnett <Griffin@winterfeldt.law>; RDS PDP DT6 <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@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]
Sent: Thursday, March 1, 2018 9:57 AM
To: Griffin Barnett <Griffin@winterfeldt.law>
Cc: Chuck <consult@cgomes.com>; 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@winterfeldt.law> wrote:
Thanks for the reminder Chuck. Please find some comments in the attached.
Best,
Griffin
Griffin M. Barnett
Associate
Winterfeldt IP Group
1200 17th St NW, Ste 501
Washington, DC 20036
From: Gnso-rds-pdp-6 [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@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
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