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

Working on Final Edits
by lynn＠goodsecurityconsulting.com Nov. 30, 2011

Nov. 30, 2011

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Hate to say this...
by Smith, Bill Nov. 30, 2011

Nov. 30, 2011

But I don't see how we're going to get this out tomorrow. As best I can tell text is still coming in and some fairly serious edits, just to remove highlighting need to occur. Then there are the adds/deletes/mods that still have to happen along with a set of judgment calls between competing suggestions. It turns out Kathy was unable to use the version that I circulated and has gone back to the one posted by Alice earlier today. Kathy will be adding Chaps 7, 8, and 9 to that earlier version and I'm hoping that we can then make a push for a "final" edit towards a clean version. Based on my work today to try and clean things up, I think a minimum of five hours is required just to deal with highlighting and making "obvious" edits. Then we have controversial edits, and they probably need to be done by at least a small group (better to share the blame/decision). Lastly, there are style inconsistencies between the chapters that should be addressed, but I think that's perhaps best done after everything else to minimize effort. I think we're looking at a good three days of work at minimum, and I'm offering myself, fulltime on this 'til it's done. One caveat is that we're going to need to reduce the number of software versions, simultaneous edits, etc. in order to pull this off - and turn track changes on at some point soon. The work that has gone into this is phenomenal and I'm amazed at quantity and quality of what I see. Getting it right, or at least "righter" is still going to take some time in my opinion... not to mention some of the "issues" still outstanding.

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And a backup copy
by Kathy Kleiman Nov. 30, 2011

Nov. 30, 2011

Since we are having trouble with systems, I am sending out back up copies. The full report, per my earlier message. p.s. Please note this version is not yet posted on wiki since Alice is still asleep :-) --

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Version control - current draft
by Kathy Kleiman Nov. 30, 2011

Nov. 30, 2011

Dear All, Attached please find a full version of the report. It includes: - Chapter 7, Understanding the Needs of Stakeholders - Chapter 8, Gap Analysis - Chapter 9, Recommendations - The revised Consumer Survey section (now at the end of Chapter 7) - The new IDN recommendations (as revised by Sarmad, Michael and Kathy) - All built on the version of the Report sent by Alice this AM and posted on the private Wiki. (Note: Chapters 7, 8,9 are the ones Emily and I sent out together -- the splitting out of the one massive Gap Analysis chapter into three different segments. Greatly appreciate all of Peter's work on this.) I would like to share a special apology to Bill. Due to some incompatibilities between systems, I could not use the file he sent out tonight with editing changes in it. I tried really hard to do so; I so much appreciate his work! I had to roll back to the version Alice sent out earlier in the day. If someone could send me the current version of Lutz's recommendation, I would appreciate it. Best and good night, Kathy --

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Re: [Rt4-whois] ACTION REQUIRED: What do I need to do now? [SEC=UNCLASSIFIED]
by Smith, Bill Nov. 30, 2011

Nov. 30, 2011

If we can somehow get to what Seth proposes, I'm all for it. Perpetuating the mess is unacceptable and while we may not be able to unravel things, ICANN must find a way. On Nov 29, 2011, at 6:54 PM, Seth M Reiss wrote: > Susan > > I have not studied the cases you cite (and I probably should) but I think > the underlying problem is that ICANN tried, unsuccessfully, to regulate the > proxy industry via, e.g., RAA 3.7.7.3. If ICANN had not given some > recognition to the proxy industry through RAA 3.7.7.3, then I am not sure > how the Ninth Circuit would have come out the way it did. In other words, > if you do not recognize proxies, then anyone who decides to become a proxy > is the registrant and bears all liability for how the registered domain name > is used. > > Because ICANN has mucked up the waters trying, unsuccessfully, to regulate > proxy services, I agree ICANN now has to fix the problem in an affirmative > manner. We need to tell ICANN this but this does not mean ICANN is > necessarily stuck with regulating an industry that perhaps should not exist > or be given recognition. And we are not making policy or law, just telling > ICANN what we think needs fixing and in what manner. If we tell it to fix > the proxy situation so proxy services are no longer recognized in any form, > and so that if a registrar or reseller decides to offer such services they > will have to take responsibility for any and all liability resulting from > the use of the domain name, then ICANN with the assistance of their > remarkable staff, advisors and counsel will have to study the cases you cite > and other applicable circumstances to figure out how to get there from here. > I am confident there is a way, and I am also confident that with the benefit > of all our thoughts and discussions, they may get it right :). > > Seth > > -----Original Message----- > From: rt4-whois-bounces(a)icann.org [mailto:rt4-whois-bounces@icann.org] On > Behalf Of Susan Kawaguchi > Sent: Tuesday, November 29, 2011 1:55 PM > To: Nettlefold, Peter; 'lynn(a)goodsecurityconsulting.com'; > 'emily(a)emilytaylor.eu'; 'rt4-whois(a)icann.org' > Subject: Re: [Rt4-whois] ACTION REQUIRED: What do I need to do now? > [SEC=UNCLASSIFIED] > > Hi Peter, > > I have continued to give the proxy issue much thought. I am completely > opposed to removing the language about proxies from the RAA and leaving it > at that. I feel that we are skirting a major issue. I found two US court > cases that are relevant to this issue. I realize that court rulings depend > completely on jurisdiction so this may not apply to other countries. > > The first is right on point Balsam v. Tucows > http://scholar.google.com/scholar_case?case=8643528087906257613&hl=en&as_sdt > =2&as_vis=1&oi=scholarr > > As I read this ruling, the plaintiff was trying to rely on 3.7.7.3 and hold > Tucows responsible for the use of the domain name that was a proxy > registration. The court relied on 5.10 of the RAA > > "5.10 No Third-Party Beneficiaries. This Agreement shall not be construed to > create any obligation by either ICANN or Registrar to any non-party to this > Agreement, including any Registered Name Holder." > > The final paragraph in the court ruling is as follows > > "Given the absence of any evidence to the contrary, we conclude that the "No > Third Party Beneficiaries" clause unambiguously manifests an intent not to > create any obligations to third parties through the RAA. See Cal. Civ.Code § > 1638 ("If contractual language is clear and explicit and does not involve an > absurdity, the plain meaning governs."); see also Register.com, Inc. v. > Verio, Inc., 356 F.3d 393, 400 (2d Cir.2004) (the RAA's "No Third-Party > Beneficiaries" provision "expressly and intentionally exclude[s] non-parties > from claiming rights under it in court proceedings"). Accordingly, Balsam's > claims, which are entirely dependent on his claimed status as a third-party > beneficiary,[3] must fail." > > At least in California court and maybe in US court in general the 3.7.7.3 > language is not going to hold up. It definitely would not have a chilling > effect and serve the purpose of immediately improving the relay and reveal > process we so desperately need with proxy registrations. > > Solid Host v. Namecheap http://www.circleid.com/pdf/solidhostnamecheap.pdf > > The 3.7.7.3 language was also asserted but it was the contributory > liability allegations > Based on California's Unfair Competition Law (the "UCL"). "The court has > concluded that Solid Host's complaint adequately pleads a cybersquatting > claim against NameCheap on a contributory liability theory. > > > Neither of these cases were able to rely on the RAA language in my opinion > although as you know I am not an attorney. > > I revised the proxy recommendation I am proposing and inserted it into the > report yesterday and in giving it more thought I have shortened it once > again based on a earlier comment from James. > > All of this would be voluntary on the part of the proxy service provider. > > Definitions > A proxy service - we should use the agreed upon definition once we have it. > >> From 2009 RAA 1.20 "Affiliated Registrar" is another ICANN accredited > registrar that operates under a common controlling interest. > Affiliate retail proxy service provider is an entity that operates under a > common controlling interest of a registrar. " > Retail proxy service provider - provides a proxy service with little or no > knowledge of the entity or individual requesting the service beyond their > ability to pay and their agreement to the general terms and conditions. > > Limited proxy service provider - provides a proxy service for an entity or > individual in which there is an ongoing business relationship bound by a > contract that is specific to the relationship. > > 1) a registrar is required to disclose their relationship with a > Retail proxy service provider to ICANN. > > 2) A retail proxy service provider should follow best practice > guidelines developed by the community. These may include the following: > > a. standardized relay and reveal processes and timeframes; > > establish a standardized process for requesting contact information for a > proxy registration > > b. guidance on the appropriate level of publicly available information > on the registrant; > c. maintenance of a dedicated and available abuse point of contact; > d. public disclosure of contact details and the physical address of the > retail proxy service provider; and > e. validate registrant contact information. > 3. The best practice guidelines should be developed in close > consultation with the GAC, privacy advocates, law enforcement, and other > interested stakeholders. > 4. ICANN should encourage and incentivize registrars to interact with > the retail service providers that adopt the best practices. > > Hope this helps to clarify my position. > > Susan > > > > > > > > -----Original Message----- > From: rt4-whois-bounces(a)icann.org [mailto:rt4-whois-bounces@icann.org] On > Behalf Of Nettlefold, Peter > Sent: Tuesday, November 29, 2011 3:16 PM > To: 'lynn(a)goodsecurityconsulting.com'; 'emily(a)emilytaylor.eu'; > 'rt4-whois-bounces(a)icann.org'; 'rt4-whois(a)icann.org' > Subject: Re: [Rt4-whois] ACTION REQUIRED: What do I need to do now? > [SEC=UNCLASSIFIED] > > Classification: UNCLASSIFIED > > Hello all, > > I'll be trying to read the key parts of the report today while I'm in > meetings. > > Thanks to all, as I agree we've made a huge amount of progress. Special > thanks also to Emily for keeping this whole show moving. > > That said, there still seem to be some open issues which need to be resolved > before we release - particularly our direction on proxies. I'll be > monitoring emails today so will be interested to discuss where we go on that > issue, as it is clearly on of our most difficult, and equally one where the > community will be expecting us to provide direction. I think we all share a > common goal of improving the current situation and reducing the incidence > and risk of misuse, so I hope we can come forward with something strong on > this. > > I'm also interested in our timelines from here. How long will the report be > out for comment? When are we aiming to publish the final? > > Cheers, > > Peter > > > ----- Original Message ----- > From: lynn(a)goodsecurityconsulting.com > [mailto:lynn@goodsecurityconsulting.com] > Sent: Wednesday, November 30, 2011 07:47 AM > To: Emily Taylor <emily(a)emilytaylor.eu>; rt4-whois-bounces(a)icann.org > <rt4-whois-bounces(a)icann.org>; rt4-whois(a)icann.org <rt4-whois(a)icann.org> > Subject: Re: [Rt4-whois] ACTION REQUIRED: What do I need to do now? > > Thanks Emily for your endurance and pulling us through. Your request is > reasonable. > Lynn > Sent via BlackBerry by AT&T > > -----Original Message----- > From: Emily Taylor <emily(a)emilytaylor.eu> > Sender: rt4-whois-bounces(a)icann.org > Date: Tue, 29 Nov 2011 20:44:50 > To: <rt4-whois(a)icann.org> > Subject: [Rt4-whois] ACTION REQUIRED: What do I need to do now? > > _______________________________________________ > Rt4-whois mailing list > Rt4-whois(a)icann.org > https://mm.icann.org/mailman/listinfo/rt4-whois > > > > _______________________________________________ > Rt4-whois mailing list > Rt4-whois(a)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. > > > ---------------------------------------------------------------------------- > --- > > > _______________________________________________ > Rt4-whois mailing list > Rt4-whois(a)icann.org > https://mm.icann.org/mailman/listinfo/rt4-whois > > _______________________________________________ > Rt4-whois mailing list > Rt4-whois(a)icann.org > https://mm.icann.org/mailman/listinfo/rt4-whois > > > _______________________________________________ > Rt4-whois mailing list > Rt4-whois(a)icann.org > https://mm.icann.org/mailman/listinfo/rt4-whois

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Version control in progress
by Kathy Kleiman Nov. 30, 2011

Nov. 30, 2011

Just a quick note to all still up that I am working on version control issues now. Will circulate something shortly. Best, Kathy --

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Draft editing - removing yellow highlighting
by lynn＠goodsecurityconsulting.com Nov. 30, 2011

Nov. 30, 2011

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Recommendations - here attached
by Kathy Kleiman Nov. 30, 2011

Nov. 30, 2011

Hi All, To the Chapters 7 and 8 that Emily circulated today (an expansion of the Gap Analysis from one chapter into two to make it more readable), let me add Chapter 9, Recommendations. Chapter 9 is also separated out from the Gap Analysis to create a separate place for our Recommendations. The entire report leads up to them, and I guess they are the climax of our story. We worked hard to take our Dakar and MDR recommendations, remove duplicates, and clarify languages (so that all references are clear, etc.). There are still a few blanks to be filled in, so if you know the answers, please let the group know. Two copies attached: a "clean" one, and one with the full set of edits shown. I'll be online for awhile, so please let me know if you can't read the files. Best, Kathy --

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ACTION REQUIRED: What do I need to do now?
by Emily Taylor Nov. 30, 2011

Nov. 30, 2011

Dear all Thank you for your dedication over the past few days. We have got through a quite amazing amount of work, from major redrafts of substantive sections, to great consensus building on recommendations, to individual comments on the report as a whole. We're not quite at my "Oscar-acceptance-speech-tears-of-gratitude-and-sincere-thanks-to-the-team-who-I-now-count-as-my-personal-friends" bit, but we're nearly there. With the increased pace of new drafts, I would like to set out a plan for how we get to closure, and release this DRAFT report tomorrow . - We're going to sign this off now by exception - if you're not commenting it means you're happy, and are assumed to have read it. - Remember, it's our draft report, and there will be opportunities to edit in future, but you should make sure you are comfortable, in particular with the *exec summary, findings, and recommendations.* - Open issues we need to close down are: (1) Definitions of law enf. and applicable laws. Minor changes requested by Peter - are we comfortable, or not? (2) Where are we on proxies? - is there some agreed text to go into the recommendations now (thanks for your work on this Susan, James and others) (3) How much of the consumer chapter stays in the full report, and how much goes into an appendix. (4) Background on WHOIS chapter - does it stay where it is, or does it go into an appendix? (5) any final comments on the compliance letter, please? Alice, please can you produce a clean copy of this. *I NEED YOUR FINAL COMMENTS TOMORROW BEFORE 15:00 UTC so that they can be factored in.* For the West Coasters, that means today your time. On publication, I am still aiming to go for it tomorrow, with appendices to follow a week later. Alice, - Denise mentioned trying to schedule a couple of webinars, and a call with the Board to take them through the draft report in early December. Please can we try to schedule these. Thanks for staying with it, all. Another 24 hours or so, and then we can all have a large drink/non-alcoholic beverage/tuck into a lot of post-Thanksgiving cold turkey. Best wishes to all 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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Re: [Rt4-whois] ACTION REQUIRED: What do I need to do now? [SEC=UNCLASSIFIED]
by lynn＠goodsecurityconsulting.com Nov. 30, 2011

Nov. 30, 2011

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