Unless someone else can do it before me, I will create new draft with Farzaneh’s suggestion and modify later parts of the draft to correspond with that change. Unfortunately, I will not be able to do that until several hours from now, so if someone else wants to do it, please feel free.
Chuck
From: Paul Keating [mailto:Paul@law.es]
Sent: Monday, March 5, 2018 9:34 AM
To: Chuck <consult@cgomes.com>; 'farzaneh badii' <farzaneh.badii@gmail.com>
Cc: 'RDS PDP DT6' <gnso-rds-pdp-6@icann.org>
Subject: Re: [Gnso-rds-pdp-6] DT6 Answers to Questions - First Draft for DT Review
Me too. I support it.
From: Chuck <consult@cgomes.com> on behalf of Chuck <consult@cgomes.com>
Date: Monday, March 5, 2018 at 6:16 PM
To: 'farzaneh badii' <farzaneh.badii@gmail.com>
Cc: Paul Keating <paul@law.es>, '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 very much Farzaneh for trying to produce a reasonable compromise. That is really appreciated.
All: Please share whether you support this compromise.
Chuck
From: farzaneh badii [mailto:farzaneh.badii@gmail.com]
Sent: Monday, March 5, 2018 8:52 AM
To: Chuck <consult@cgomes.com>
Cc: Paul Keating <Paul@law.es>; RDS PDP DT6 <gnso-rds-pdp-6@icann.org>
Subject: Re: [Gnso-rds-pdp-6] DT6 Answers to Questions - First Draft for DT Review
Chuck I am not going to win this :). So as Paul also supported lets go with your language which is more balanced and doesn't mention content. Also access to accurate nameserver is within ICANN mission so I do my last attempt and suggest instead of saying web host, lets say nameservers ‘For the proposed legal actions purpose, the name server[remove hosting provider] and its jurisdiction should be identified so that it could be contacted if needed.’
Paul, UDRP is a policy that relates to domain names. As it says in ICANN Bylaws section 11.(c) ICANN cannot get involved with regulation of content. You prove lack of legitimate interest and bad faith by pointing to the content but in the end UDRP outcomes do not at all impose restrictions on content and are related solely to domain names. Do you need web host providers to carry out the dispute resolution in domain names?
anyhow I have to go offline now, I'll go with what the group decides in the end.
Farzaneh
On Mon, Mar 5, 2018 at 10:59 AM, Chuck <consult@cgomes.com> wrote:
Here are my personal thoughts.
We cannot limit what actions legal authorities take. Whether they take actions that are related to ICANN’s mission or not, ICANN, registrars and registries must comply if they are in the applicable jurisdiction.
With that understanding, it makes sense to me that ICANN should not be proactive about supporting legal actions that are not related to its mission (i.e., not collect RDS data for that purpose) but, because ICANN and its contracted parties must obey applicable laws, allowing access to RDS data by legal authorities (with necessary restrictions to ensure compliance with applicable data protection laws) their task of enforcing laws regardless of whether those laws relate to ICANN’s mission or not. So, if there is a law forbidding certain content from being published (e.g., child pornography), allowing authorized legal authorities controlled access to RDS data that is collected for other purposes would seem appropriate even though we would not collect that data for that purpose.
Does that make sense? Farzaneh – do you disagree with that?
Chuck
From: Paul Keating [mailto:Paul@law.es]
Sent: Monday, March 5, 2018 7:36 AM
To: farzaneh badii <farzaneh.badii@gmail.com>; Chuck <consult@cgomes.com>
Cc: RDS PDP DT6 <gnso-rds-pdp-6@icann.org>
Subject: Re: [Gnso-rds-pdp-6] DT6 Answers to Questions - First Draft for DT Review
Farzaneh,
You are suggesting that any legal action be related only to the domain name. However, that is far too narrow and I see no reason to adopt such a position. As but one example:
The Registration Agreement includes a reference to the UDRP. The UDRP in turn refers to the lack of legitimate interest and bad faith. Both are inherently related to the content on the actual website.
I am in favor of retaining the original language suggested by Chuck.
Also, Chuck, is it possible to reformat the points into a tabular format? That way we can more easily see the line items and the various reasons and limitations (purposes).
Thanks
Paul
From: Gnso-rds-pdp-6 <gnso-rds-pdp-6-bounces@icann.org> on behalf of farzaneh badii <farzaneh.badii@gmail.com>
Date: Monday, March 5, 2018 at 4:12 PM
To: Chuck <consult@cgomes.com>
Cc: RDS PDP DT6 <gnso-rds-pdp-6@icann.org>
Subject: Re: [Gnso-rds-pdp-6] DT6 Answers to Questions - First Draft for DT Review
Chuck
I disagree with adding web server to the list of legal action. That is not WHOIS purpose, local laws and court can identify name servers and enforce their court judgment if in their jurisdiction, ICANN does not have to help with that. This objective which blatantly says it relates to content is against ICANN mission. "For d: 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" If there is any other objective that is related to actual "domain name" and relates to name server then I am all ears. But as it stands, I can't accept it the language.
You reworded Griffin's suggestion to: ‘For the proposed legal actions purpose, the hosting provider and its jurisdiction should be identified so that it could be contacted if needed.’ The proposed legal actions came up with as I said are too broad. You stated that we don't have to discuss them now. If we could limit the legal actions and define them now I would have accepted the language you proposed but at the moment it is just too broad. Maybe we could add a clarification " regarding matters strictly related to the domain name and not content"
I am fine with Vicky's suggestion that the entities "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." I only agree because the language has "at their discretion" and they are not obliged to respond.
Farzaneh
On Fri, Mar 2, 2018 at 4:26 PM, Chuck <consult@cgomes.com> wrote:
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:
- Should we add web hosting provider to the list of those who should be identified and/or contacted for Question1?
- 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.)
- 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@cgomes.com>
Cc: farzaneh badii <farzaneh.badii@gmail.com>; RDS PDP DT6 <gnso-rds-pdp-6@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@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@cgomes.com>; 'farzaneh badii' <farzaneh.badii@gmail.com>
Cc: 'RDS PDP DT6' <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@gmail.com>
Cc: '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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