November 2011 - Rt4-whois - lists.icann.org

Compliance recommendations
by Emily Taylor Nov. 27, 2011

Nov. 27, 2011

Hi all On reading the draft report through, I think I've over-edited the compliance text, and would like to bring one or two of the recommendations and text back in to the main body. I would not alter the language of the recommendations which have been around since July, and were most recently considered in the call before last as part of the letter to Compliance. James has rightly noted that there are a couple which should be policy recommendations (eg the ones about the WHOIS Data Reminder Policy not being effective and needing review). So, I'm going to send out some renewed text on this, and highlight the recommendations that should go in (very few). Before I do this, can I hear any screams of protest please? Kind regards Emily -- * * 76 Temple Road, Oxford OX4 2EZ UK t: +44 (0)1865 582 811 • m: +44 (0)7540 049 322 emily(a)emilytaylor.eu *www.etlaw.co.uk* Emily Taylor Consultancy Limited is a company registered in England and Wales No. 730471. VAT No. 114487713.

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A word on proxies
by Emily Taylor Nov. 27, 2011

Nov. 27, 2011

Hi all I've been following the exchanges with interest. On proxies, our default position should be what we agreed in Dakar. We all (including Susan) agreed those recommendations, despite virtually everyone having reservations on some of the issues. James and Susan (and latterly Kathy) were tasked to see whether they could agree additional text on proxies, and agreement wasn't possible. To me, this indicates that we have pushed the consensus as far as it can go at this stage. I think that we could add a paragraph in our findings to say that we wrestled with the issue of proxies, and set out a summary of both positions (ie concern that it will just be continuation of what we have; vs concern about bringing in an regulating non-contracted parties). We should definitely label this as one to watch, and an area where the community should build up good practices voluntarily. We welcome the study/work/whatever on reveal and relay, and anticipate that it will highlight many of the issues that we have encountered about patchy standards amongst commercial proxy providers: from gold standard (eg Domains by Proxy, [ others? Moniker?]) to others such as Above.com (an ICANN accredited registrar) which does not reveal until after UDRP or other proceedings have started, and has been found against in over 100 UDRP cases. It is an area where improved standards are necessary to promote consumer trust, and we look to the industry initially to work on these. The next WHOIS Review will have more information (ie the outcome of many of the studies which are just started now), and will be able to evaluate how well the industry has done. Susan - I appreciate, and share many of your concerns. However, we committed to a hard-won consensus on this issue in Dakar. You have rightly explored whether it's possible to do more, and it isn't at this stage. You can see from the responses of others in the group (eg Seth, Peter) that the preservation of our consensus is the most important thing at this stage of our study. I hope you will recognise how much we have achieved in this regard. Reading the draft report as a whole, I feel very proud of all of our work, and our teamwork. Kind regards Emily -- * * 76 Temple Road, Oxford OX4 2EZ UK t: +44 (0)1865 582 811 • m: +44 (0)7540 049 322 emily(a)emilytaylor.eu *www.etlaw.co.uk* Emily Taylor Consultancy Limited is a company registered in England and Wales No. 730471. VAT No. 114487713.

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Proxy provider recommendation 112311 susan draft(2).doc
by Susan Kawaguchi Nov. 26, 2011

Nov. 26, 2011

Hello All, I apologize for the delay in sending this and that it is still in rough draft. The attached document contains Kathy's revisions and comments to my original proposed recommendation. I have added proposed definitions for the terms we are struggling with. These came out of discussions between James and I. I feel that we must provide a clear recommendation on the proxy issue but I personally seem to keep moving towards drafting policy. I am hoping we will have time to discuss on the call today as I have several questions for the team. Susan

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Re: [Rt4-whois] Proxy provider recommendation 112311 susan draft(2).doc [SEC=UNCLASSIFIED]
by James M. Bladel Nov. 25, 2011

Nov. 25, 2011

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Re: [Rt4-whois] Thoughts/edits on the Full Report
by lynn＠goodsecurityconsulting.com Nov. 25, 2011

Nov. 25, 2011

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Re: [Rt4-whois] Proxy provider recommendation 112311 susan draft(2).doc [SEC=UNCLASSIFIED]
by Nettlefold, Peter Nov. 25, 2011

Nov. 25, 2011

Classification: UNCLASSIFIED Hi all Like Seth, I will be monitoring emails periodically through the weekend and will send comments as I can. Cheers Peter From: Seth M Reiss [mailto:seth.reiss@lex-ip.com] Sent: Saturday, November 26, 2011 04:01 AM To: 'Kathy Kleiman' <kathy(a)kathykleiman.com>; rt4-whois(a)icann.org <rt4-whois(a)icann.org> Subject: Re: [Rt4-whois] Proxy provider recommendation 112311 susan draft(2).doc [SEC=UNCLASSIFIED] I find myself closely aligned with Peter ‘s thoughts and analysis. I prefer the simplicity of what I thought we had agreed to in Dakar as well as how that model promoted the underlying interests that we were concerned with: (1) protecting individual’s privacy particularly in those countries that had legal regimes that implicate WHOIS data appear to require such protection; and (2) not permitting registrants or proxy services to avoid WHOIS accountability without justification and without significant risk. While I appreciate that there is a concern on the part of members of our Team to acknowledge the proxy industry and regulate it, I am not persuaded that the AOC mandate requires that we accommodate existing interests simply because they exist. My other concern is that what I will term the more “involved solution” does not appear to be going in a direction that is likely to reach consensus. It seems we are mixing privacy and proxy again or at least treating them too much alike, and I think this is something that has plagued the privacy/proxy debate from day one. I have a rather large project this weekend that keeps my away from a computer and means that I am not keeping up with the emails. Meanwhile, I did want to let all you know my perspective. I will of course work with the direction the group decides to go, and I will be checking my emails in the late evening to determine what direction that is. Good luck! Seth From: rt4-whois-bounces(a)icann.org [mailto:rt4-whois-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Friday, November 25, 2011 6:04 AM To: rt4-whois(a)icann.org Subject: Re: [Rt4-whois] Proxy provider recommendation 112311 susan draft(2).doc [SEC=UNCLASSIFIED] Peter, You email below is eloquent, and I urge everyone to read it. We really have to wrestle with these issues, and quickly. I truly wish we had more information, and note there are two very complex studies now taking place in the GNSO right now because the community, as a whole, felt it needed much more information in this area. It is a confusing one! I share the concerns that Peter is raising, but from a somewhat different perspective. If we are "blessing" the existence of proxy and privacy services, then I think we need to make it very clear *to registrants* what is happening. E.g., From a registrant perspective: - when is their name going to be disclosed (privacy service), - when do they have legal liability (privacy service), - when is someone else the "owner" of their domain name (proxy service). I submitted some changes consistent with this goal of the most basic education and information. I think we have to be very, very clear because, from the perspective of .ORG political groups, for example, people's lives may be on the line. Best, Kathy : Thanks Emily, that’s very useful, and I think I understand where its coming from. I have a few follow on questions, as I’m trying to understand the big picture/strategy, and to try to work through the new proposal fully as this is a key area of interest for me. To be honest, I’m a bit nervous about reopening such a major issue so late in the piece, with only limited time to think through and discuss all the implications. That said, I’m not opposed, just cautious. In terms of questions: is the intention to retain our ‘privacy’ recommendations from Dakar? i.e. so that we would in effect have three different arrangements: i.e. privacy, ‘known’ proxies, and ‘unknown’ proxies? I ask this because if we are to recommend the establishment of parallel ‘known proxy’ and ‘privacy’ regimes, we would need to clearly explain and justify any differences between the two (I note that many of the recommendations we agreed for privacy services have been adopted for the proposed proxy recommendations). I expect that a key question we would face is why we were advocating for two different types of privacy-related services? In what circumstances are privacy services not sufficient? Understanding the reason for this may address some of my concerns. Separate to the question of privacy services, we also need to consider the implications of endorsing proxy services. In Dakar, we discussed at length the risks of ICANN explicitly acknowledging (and effectively endorsing) the practice of completely limiting access to a registrant’s identity. I had thought that was one of the reasons why we agreed that ICANN should not endorse this practice, and instead that we would argue that: · the full rights and responsibilities of the registrant should accrue to the registered name holder; and · ICANN should endorse and regulate ‘privacy’ services which could limit the availability of sensitive personal data, without completely obfuscating the registrant’s identity. This approach seemed to address the privacy concerns expressed by a range of stakeholders, and to clarify (perhaps for the first time) the chain of contractual rights and responsibilities. Much of this revolves around the question of whether tighter regulation of proxies is needed, or whether simply removing the endorsement and clarifying the chain of legal responsibilities would be more effective. In effect, the new proposal is to advocate the replacement of one mechanism which attempts to regulate proxies (i.e. the current RAA provisions) with another. The intent is obviously to have a tighter set of regulations this time, to reduce gaming/abuse etc. At one level this seems logical, but I am concerned that by introducing doubt into the chain of rights and responsibilities, anything we then do will be like trying to patch a leak that we in effect created. Given that both previous versions of the RAA have tried the endorsement/regulation route with very limited success, I think we would need a strong case to propose a third attempt at this approach as the best way to go. Do we think that this is something we can achieve in practice, and why is it better than the simpler alternative? I hope I’m not making this unnecessarily complicated – I just want to make sure that we don’t make a rushed change that has not been fully discussed. I look forward to the views of other team members on this issue. Cheers, Peter From: Emily Taylor [mailto:emily@emilytaylor.eu] Sent: Thursday, 24 November 2011 8:30 PM To: Nettlefold, Peter Cc: Susan Kawaguchi; rt4-whois(a)icann.org<mailto:rt4-whois@icann.org> Subject: Re: [Rt4-whois] Proxy provider recommendation 112311 susan draft(2).doc [SEC=UNCLASSIFIED] Hi Peter As it's Thanksgiving, our US colleagues will (should) be offline for a couple of days. My understanding from last night's call is that our proposal is to combine these proxy recommendations with the ones from Dakar. In other words, instead of saying "we never acknowledge proxies" we say this. Susan explained that they are currently working on defining what is meant by a proxy, and as you rightly point out there are different flavours of proxy. There is the "deep" arrangement based on an ongoing trusting relationship (eg solicitor, client) where a proxy might not be obvious. My understanding is that we're not attempting to lift the veil on these. They are not viewed as problematic. What is viewed as within the ambit of these new draft recommendations are the higher volume, commercialised proxy services, where there is not really a pre-existing relationship between registrant and proxy provider, but this is a low cost add on at the point of registration. The two parties don't really know each other that well. These are the ones we're hoping to describe in our definitions, and they are the target of these recommendations. I hope that this makes it clear, but obviously I do recommend you listen to Susan's description of their thinking from the audio when it's up. Thanks Emily On 24 November 2011 02:32, Nettlefold, Peter <Peter.Nettlefold(a)dbcde.gov.au<mailto:Peter.Nettlefold@dbcde.gov.au>> wrote: Hi Susan and all, Thanks very much to all who worked on this new series of recommendations. I’m sorry I missed the teleconference this morning, but just wanted to see if I understand this proposal correctly. In short, is this a supplement to the position we agreed in Dakar? i.e. will the situation generally be that the registered name holder assumes all rights and responsibilities (as we discussed in Dakar), but in a special subset of cases (i.e. where the registrar clearly knows that a ‘proxy’ is being used) then some special rules apply? Or to put it another way, will we be recommending that there should be special new rules for ‘known’ proxies (however defined), and in all other cases we do not acknowledge proxies? I’m sorry if this was discussed this morning, but I’m just trying to understand the position. As there isn’t a recording up yet that I’ve seen, any advice on whether other team members have already commented on this would be appreciated. Cheers, Peter From: rt4-whois-bounces(a)icann.org<mailto:rt4-whois-bounces@icann.org> [mailto:rt4-whois-bounces@icann.org<mailto:rt4-whois-bounces@icann.org>] On Behalf Of Susan Kawaguchi Sent: Thursday, 24 November 2011 6:18 AM To: rt4-whois(a)icann.org<mailto:rt4-whois@icann.org> Subject: [Rt4-whois] Proxy provider recommendation 112311 susan draft(2).doc Hello All, I apologize for the delay in sending this and that it is still in rough draft. The attached document contains Kathy’s revisions and comments to my original proposed recommendation. I have added proposed definitions for the terms we are struggling with. These came out of discussions between James and I. I feel that we must provide a clear recommendation on the proxy issue but I personally seem to keep moving towards drafting policy. I am hoping we will have time to discuss on the call today as I have several questions for the team. Susan ------------------------------------------------------------------------------- NOTICE: This email message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message. This message has been content scanned by the Axway MailGate. MailGate uses policy enforcement to scan for known viruses, spam, undesirable content and malicious code. For more information on Axway products please visit www.axway.com<http://www.axway.com>. ------------------------------------------------------------------------------- _______________________________________________ Rt4-whois mailing list Rt4-whois(a)icann.org<mailto:Rt4-whois@icann.org> https://mm.icann.org/mailman/listinfo/rt4-whois -- [cid:image001.jpg@01CCAB3E.68F15430] 76 Temple Road, Oxford OX4 2EZ UK t: +44 (0)1865 582 811 • m: +44 (0)7540 049 322 emily(a)emilytaylor.eu<mailto:emily@emilytaylor.eu> www.etlaw.co.uk<http://www.etlaw.co.uk> Emily Taylor Consultancy Limited is a company registered in England and Wales No. 730471. VAT No. 114487713. ------------------------------------------------------------------------------- NOTICE: This email message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message. This message has been content scanned by the Axway MailGate. MailGate uses policy enforcement to scan for known viruses, spam, undesirable content and malicious code. For more information on Axway products please visit www.axway.com<http://www.axway.com>. ------------------------------------------------------------------------------- _______________________________________________ Rt4-whois mailing list Rt4-whois(a)icann.org<mailto:Rt4-whois@icann.org> https://mm.icann.org/mailman/listinfo/rt4-whois -- ------------------------------------------------------------------------------- NOTICE: This email message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message. This message has been content scanned by the Axway MailGate. MailGate uses policy enforcement to scan for known viruses, spam, undesirable content and malicious code. For more information on Axway products please visit www.axway.com. -------------------------------------------------------------------------------

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Draft report + appendices - 25 Nov
by Alice Jansen Nov. 25, 2011

Nov. 25, 2011

Dear Review Team Members, Please find attached revised versions of the draft report and appendices document which reflect Emily's comments and the latest version of the policy report (circulated earlier today, thanks Kathy!). I believe these documents are up-to-date. The notebook layout should have disappeared now (if not, please let me know). Wiki link: https://community.icann.org/display/whoisreviewprivate/Draft+report Note that I have taken the liberty to add the ICANN glossary to the glossary appendix to get the ball rolling. Please feel free to delete terms you believe should not be there and to send me a list of those you would like to see in that section. Thanks in advance for your help. Have a nice weekend! Kind regards Alice -- Alice Jansen Assistant, Organizational Reviews 6 Rond Point Schuman, Bt.5 B-1040 Brussels Belgium Direct dial: +32 2 234 78 64 Mobile: +32 4 73 31 76 56 Skype: alice_jansen_icann

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Thoughts/edits on the Full Report
by Kathy Kleiman Nov. 25, 2011

Nov. 25, 2011

Hi All, I wanted to share a running stream of edits as I review the full document: - I like it. I think all the elements are there! - We need to consolidate in interesting ways. - We need a flow --- a rearranged order to lay out a very clear picture of our work, research and analysis for new and older readers Specific ideas 1. Too many Definitions. I brought "5) WHOIS PARTICIPANTS: Data Producers; Data Controllers; Data Processors" into the Policy chapter and put it in a table. Recommendation: this section from the Definitions. 2. Remove Scope of Work, Section 7, as a section covering the same definitions above. 3. Relocate the Consumer Study to a later chapter, complete with its definitions (please see below). It deserves a home all its own, not stuck at the bottom of the Scope of Work Chapter. 4. Start a new page for every new chapter. 5. After Policy Chapter, keep the Compliance Chapter (as compliance flows from Policy). 6. After Policy Chapter, consider placing the IDN chapter. IDN issues are closely related to policy and compliance -- it's an existing policy issue complicated by translations and transcription problems. Then I would enter the "Study Part of the Report." Is Existing Policy serving the Legitimate Needs of LE and promoting consumer trust? Here I would recommend: 7. A Law Enforcement Chapter: with a write-up of Sharon's Law Enforcement study and its findings. Am I missing it within the text? 8. Include in LE Chapter the sections of Peter's current Gap Analysis extensively discussing input from Law Enforcement. 9. A Consumer Trust Chapter (following the order of the AOC, LE then CT), and include the full text of Lynn and Sharon's writeup right up including its Definitions. Now the Gap Analysis Part of the Report 10. Here Peter's Gap Analysis could flow. It already shows us how, based on all the above, we still have gaps, problems, concerns, etc. a. I like using the additional facts, discussions, Constituency thoughts, written comments, etc., to share insights and information. Could this be a bit more streamlined? b. Perhaps subtitles, some already there, can help readers track our gap analysis with the Recommendations that we wrote, e.g., proxy/privacy. Perhaps some Compliance and Policy Gap Analysis too (briefly to be inclusive). Appendices: Should my Methodology section hit the trash can? Best and take care, Kathy --

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Re: [Rt4-whois] Proxy provider recommendation 112311 susan draft(2).doc [SEC=UNCLASSIFIED]
by James M. Bladel Nov. 25, 2011

Nov. 25, 2011

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Re: [Rt4-whois] Proxy provider recommendation 112311 susan draft(2).doc [SEC=UNCLASSIFIED]
by James M. Bladel Nov. 25, 2011

Nov. 25, 2011

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