Classification: UNCLASSIFIED Hi Seth, Thanks very much for taking the pen on this difficult issue.
From my perspective, this is a very good attempt to articulate findings and recommendations, and I am happy to work with this position.
I will wait to hear from others before diving into detail too much, to get a sense if this is an approach we can work with. Thanks again. Peter ----- Original Message ----- From: Seth M Reiss [mailto:seth.reiss@lex-ip.com] Sent: Thursday, December 01, 2011 02:26 PM To: 'Smith, Bill' <bill.smith@paypal-inc.com> Cc: rt4-whois@icann.org <rt4-whois@icann.org> Subject: Re: [Rt4-whois] streamlined proxy recommendation language mmm, didn't really want that kind of pressure. Here's an attempt: Data Access- Proxy Service 1. The Review Team considers a Proxy Service as a relationship in which the registrant is acting on behalf of another. The WHOIS data is that of the agent/proxy service and the agent/proxy service alone obtains all rights and assumes all responsibility for the domain name and its manner of use. 2. ICANN should clarify that any registrant that may be acting as a proxy service for another is in all respects still the registrant and, in ICANN's view, should be held fully responsible for the use of the domain name including for any and all harm that results from the use of the domain name. 2. Because of ICANN's position on proxy services to date, which tolerates the proxy service industry that has arisen and which through RAA provisions gives recognition and attempts to regulate that industry, has been used by courts and others to allow proxy services to escape liability for bad acts of the proxy service customers, ICANN should either delete or amend those provisions of the RAA that can or have been used to allow proxy services to escape liability. 3. The Review Team acknowledges that there may be legitimate reasons for the occasional use of a proxy service, as for example to protect a valuable trade secret at product launch. At the same time proxy services should not be viewed or used as a substitute for privacy services that are designed to shield an individual's personal contact information. The legitimate use a proxy service would be the exception and not widespread. 4. A proxy service industry willing to accept full risks and liabilities for the manner in which domain names through its service will be used will take the necessary precautionary measures, in its relationship with its customers, such that domain names so registered are unlikely to be misused and, if misused, a remedy for those victimized will more likely be available. I suspect most of you are asleep by now anyway. If not, feel free to comment or modify or supplement, or in the morning. Seth -----Original Message----- From: Smith, Bill [mailto:bill.smith@paypal-inc.com] Sent: Wednesday, November 30, 2011 4:34 PM To: Seth M Reiss Cc: Kathy Kleiman; rt4-whois@icann.org; Susan Kawaguchi Subject: Re: [Rt4-whois] streamlined proxy recommendation language Seth, Any chance you cold take a crack at this? Your writing on the subject seems on point and I suspect you could say it using fewer words than I. Bill On Nov 30, 2011, at 6:27 PM, "Susan Kawaguchi" <susank@fb.com> wrote:
Hi Bill,
This is a valuable (albeit frustrating) discussion and necessary to make sure we get this right, I appreciate the argument. I think we all want the end result but it is getting to that point that may be painful but we knew this task could be painful when we signed on.
Is there a stronger recommendation that you and Seth could draft that outlines your view point?
This is all that we said in the recommendations in Dakar
"Remove proxy services from the RAA since the proxy, as an agent, is the registrant. Expand and ? affirmative sentence"
I cannot live with that what would you propose to strengthen the recommendation?
At this point, I am not willing to walk away from the best practices recommendation but I am very willing to continue the discussion and see if there is a way forward on a recommendation we all agree to.
I am going to eat dinner and walk the dog so will be offline for an hour.
Susan
-----Original Message----- From: Smith, Bill [mailto:bill.smith@paypal-inc.com] Sent: Wednesday, November 30, 2011 5:19 PM To: Susan Kawaguchi Cc: Seth M Reiss; Kathy Kleiman; rt4-whois@icann.org Subject: Re: [Rt4-whois] streamlined proxy recommendation language
Susan,
It may not seem like it but I am supportive, very supportive of your position of to not rely on litigation to solve these types of problems. Where we disagree is the best approach to avoid the litigation.
I am not suggesting that cigarette-style litigation is the way forward. Rather, I am concerned that proposal for retail proxy indemnification (if I've read it right) will result in exactly that situation, some time far in the future when society and the courts finally realize that allowing unfettered criminal activity on the Internet is a bad idea. Retail proxies will happily sell a service to people they don't know as long as they have no liability.
If instead of no liability, we insist that they have the liability of the Registrant, since that's what they are, I strongly suspect that counsel for these services will understand that they now carry at least some risk in these transactions. Consequently, they will either recommend against them or insist on some mechanism to mitigate the risk, through insurance or other mechanisms - perhaps even actually knowing something about their customers. Any or all of these would involve higher costs hence higher prices making these services less attractive to criminals, etc.
By the addition of SLAs into contracts, and mandatory consequences, we provide a means for ICANN to ensure that valid queries, information requests, corrections, etc. are made in a timely manner. A registrant could ignore a request knowing that the specific penalty for failing to comply with such request. With mandatory revocation the consequence of last resort, we give the community and ICANN the ability to revoke a name (the only thing of value under our control).
If a proxy is a party to any of these transactions, they act as the Registrant and must respond either directly or with guidance from the licensee per the agreement SLAs. Failure to do so results in the same consequences.
By setting SLAs and consequences appropriately, ICANN can influence the behavior of Registrants and those that act as proxies for them.
Even if we go with language you an James worked on, and I realize that you put in a great deal of effort on that, we'll still need something like what I have outlined because as we discussed in Dakar, anyone can act as a proxy for a Registrant no matter what ICANN tries to do to prevent it. If the "best practices" ICANN develops for the retail trade prove too onerous, proxy providers will simply step outside of the ICANN tent and provide their services likely failing to adhere to the best practices.
I hope this makes sense.
Bill
On Nov 30, 2011, at 4:38 PM, Susan Kawaguchi wrote:
HI Bill,
Thank you for your thoughts I think your statement below is my biggest pain point.
"I think they are inherently contradictory. How a service is *sold* should not determine liability. If this were the case and we applied the proposed definitions to consumer products, untold numbers of tort cases would be summarily thrown out. Cigarette, toy, and asbestos manufacturers could properly claim, "I don't know the buyer therefor I have no liability"."
All of the cases you mention above relied on litigation to clarify the existence of liability and impose that liability on the manufacturer. It would be overwhelming and burdensome to rely on litigation to fix this problem especially when it involves global entities as proxy service providers. I think we have the opportunity to incentivize the registrars to help with the problem.
If I or LE are forced to rely on litigation of any sort of court order to get information on the licensee of a domain name to pursue a provider of counterfeit drugs, for example, this would take years for each domain name involved.
If we take a very extreme step and recommend that proxy services are not allowed in the gTlds (as .US has done) how would that ever be enforced? Proxy registrations provide a vital service for many in the domain name space.
Susan
-----Original Message----- From: Smith, Bill [mailto:bill.smith@paypal-inc.com] Sent: Wednesday, November 30, 2011 4:20 PM To: Seth M Reiss Cc: Susan Kawaguchi; Kathy Kleiman; rt4-whois@icann.org<mailto:rt4-whois@icann.org> Subject: Re: [Rt4-whois] streamlined proxy recommendation language
See below:
On Nov 30, 2011, at 4:03 PM, "Seth M Reiss" <seth.reiss@lex-ip.com<mailto:seth.reiss@lex-ip.com><mailto:seth.reiss@lex-i p.com>> wrote:
I am not advocating ignoring proxy services simply clarifying their role and liability as registrant. I suspect we are very closely aligned regarding outcome, just not how to reach there.
I guess I'm advocating that we get as close to ignoring them as we can. Recognizing them, even in the limited way the current RAA does gave the Ninth Circuit everything it need to make its liability absolving decision.
While the community may not be inclined to receive a proposal to "ignore proxy services" with open arms, I hope they would consider it if we present it as in the public interest.
I think we disagree regarding whether we need to tolerate an industry simply because it exists and has for a time. ICANN did not tolerate domain name tasting, although it acted relatively quickly there and has not here.
I believe it to be a dangerous proposition to say that we need to accommodate existing practices simply because ICANN has allowed them to exist for a period of time, although I think it's an unfortunately circumstance. If you apply this line of reasoning broadly, you effectively allow the industry to restrict what ICANN can and cannot do.
If we make this assumption generally, our report would be very short. Yes there are problems with WHOIS. However, it has existed in this manner for too long and therefor it cannot be changed.
I would like to find a middle ground. I am not one for asking people to think differently. I just don't see how holding stating a proxy should be held fully responsible, and then at the same time having retail proxy services definitions and a voluntary best practices policy, will not be viewed as inherently contradictory.
I think they are inherently contradictory. How a service is *sold* should not determine liability. If this were the case and we applied the proposed definitions to consumer products, untold numbers of tort cases would be summarily thrown out. Cigarette, toy, and asbestos manufacturers could properly claim, "I don't know the buyer therefor I have no liability".
Other than to satisfy, the current purveyors of these fine services, I can't see any reason to develop a complex set of definitions and liability flows. Together these give attorneys and courts ample room to for truck driving.
Seth
From: Susan Kawaguchi [mailto:susank@fb.com] Sent: Wednesday, November 30, 2011 1:29 PM To: Kathy Kleiman; Seth M Reiss Cc: rt4-whois@icann.org<mailto:rt4-whois@icann.org><mailto:rt4-whois@icann.org> Subject: RE: [Rt4-whois] streamlined proxy recommendation language
HI Seth,
I am going to respond to you out of order 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. I agree with you but it is what is. The situation arose over 10 years ago and I do not think that advocating to do away with proxy services is going to be well received by the ICANN community. Also to date, there has been very few examples of a proxy service being held liable.
We need proxy services but we need responsive proxy services many of the providers are acting responsibly it is the bad actors that I would like to change their behavior.
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.
I am not sure that these definitions would be accepted outside of ICANN and at least we would have a clearer picture of who we are dealing with.
I am not convinced at all that just removing the language from the RAA would impact the practices of the current proxy services. If you have another argument let me know I am open to rethinking this but I am not open to ignoring proxy service providers.
Susan
From: rt4-whois-bounces@icann.org<mailto:rt4-whois-bounces@icann.org><mailto:rt4-w hois-bounces@icann.org> [mailto:rt4-whois-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Wednesday, November 30, 2011 3:15 PM To: Seth M Reiss Cc: rt4-whois@icann.org<mailto:rt4-whois@icann.org><mailto:rt4-whois@icann.org> Subject: Re: [Rt4-whois] streamlined proxy recommendation language
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><mailto:rt4-w hois-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@icann.org<mailto:rt4-whois@icann.org><mailto:rt4-whois@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
--
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