Great comments, Seth. I defer to Susan and James, as the experts on this
material.
Best,
Kathy
:
>
> Thank you Kathy for breaking this out. I have not been good about
> reviewing the entire document.
>
> To respond to Peter's question about what would be legally
> enforceable, I think if you look at bullet number 6, if this bullet
> was implemented in a very clear and unambiguous way, by itself and
> without some of the other material being proposal, then I think there
> would be reasonable expectation that national courts would hold the
> registrant proxy service fully responsible for harm caused by a
> website hosted at the domain name at issue. In other words, the Ninth
> Circuit decision that Susan highlighted would have been decided
> differently.
>
> Once you introduce definitions concerning affiliates, retail services
> and different flavors of proxy services, the cheap ones with flimsy
> relationships, and the expensive ones with fiduciary type
> relationships, it will appear to the court that you do not really mean
> what you saying in bullet number 6. This will confuse the courts (and
> the public) and the registrant proxy services is more likely to be
> able to weasel out of being held liable.
>
> The current proposal on the table suggests to me a somewhat more
> complicated model whereby the registrant proxy service is fully liable
> for the use of the domain name but can shield that liability by
> adopted and fully complying the a specific set of reveal and relay
> processes etc. I voluntary set of best practices would not do this,
> but a mandatory set of provisions to qualify a proxy service for a
> "safe harbor" would. Such a safe hard model would in my view be more
> difficult to implement and is likely to give rise to a certain amount
> of uncertainty and inconsistent outcomes even if prudently
> implemented. But this also assumes that we need to have a proxy
> service in which proxies may shield themselves from liability. In all
> our discussions, I have still not heard a persuasive argument why a
> proxy service industry that can shield itself from liability is
> necessary or good or appropriate.
>
> Seth
>
> *From:*rt4-whois-bounces@icann.org
> [mailto:rt4-whois-bounces@icann.org] *On Behalf Of *Kathy Kleiman
> *Sent:* Wednesday, November 30, 2011 12:24 PM
> *To:* rt4-whois(a)icann.org
> *Subject:* [Rt4-whois] streamlined proxy recommendation language
>
> Hi All,
> I feel like I am sending altogether too many emails today. Sorry :-)!
> Anyway, here's one more. I worked with James, a little, and Susan,
> more, on streamlining the Proxy recommendations to look, sound and
> flow like the Privacy recommendations. Of course, proxy is voluntary,
> and privacy is a requirement, but the rest is fairly close.
>
> They are below and attached. If you like them, we'll send them on to
> Alice for inclusion. Note: the definitions went into a footnote which
> should be easy to see as it will be quite extensive.
>
> here's the text:
>
> *Data Access- Proxy Service *
>
> 1.ICANN should facilitate the review of existing practices by reaching
> out to proxy providers to create a discussion which sets out current
> processes followed by proxy service providers.
>
> 2.Registrars should be required to disclosure their relationship with
> any Affiliated Retail proxy service provider to ICANN.
>
> 3.ICANN should develop and manage a set of voluntary best practice
> guidelines for appropriate proxy services [footnote 1] consistent with
> national laws. These voluntary guidelines should strike an appropriate
> balance between stakeholders with competing but legitimate interests.
> At a minimum this would include privacy, law enforcement and the
> industry around law enforcement.
>
> Such voluntary guidelines may include:
>
> + Proxy services provide full contact details as required by the Whois
>
> + Publication by the proxy service of its process for revealing and
> relaying information
>
> + Standardization of reveal and relay processes and timeframes,
> consistent with national laws
>
> + Maintenance of a dedicated abuse point of contact for the proxy
> service provider
>
> + Due diligence checks on licensee contact information.
>
> 5. ICANN should encourage and incentivize registrars to interact with
> the retail service providers that adopt the best practices.
>
> 6. For the avoidance of doubt, the WHOIS Policy, referred to in
> Recommendation 1 above, should include an affirmative statement that
> clarifies that a proxy means a relationship in which the Registrant is
> acting on behalf of another. The WHOIS data is that of the agent, and
> the agent alone obtains all rights and assumes all responsibility for
> the domain name and its manner of use.
>
> Footnote 1 (all the remaining text)
> As guidance to the Community and as useful background for the Proxy
> Service Recommendations, the Review Team provides its working
> definitions of proxy service and different types of proxy service
> providers:
>
> - *_Proxy Service_ *-- a relationship in which the registrant is
> acting on behalf of another The WHOIS data is that of the agent and
> the agent alone obtains all rights and assumes all responsibility for
> the domain name and its manner of use. /[KK: is this the definition we
> are using in other places in the Report?]/
>
> /- /*_Affiliated Registrar _*_- _another ICANN accredited registrar
> that operates under a common controlling interest (2009 Registrar
> Accreditation Agreement, Section 1.20)
>
> - *Affiliate retail proxy service provider *-- entity operating under
> a common controlling interest of a registrar.
>
> - *Retail proxy service provider *- 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 _*- 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.
>
>
>
> --- end
> same text attached
> Kathy
>
> --
>
>
--
