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@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@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@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@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. 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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@icann.org [mailto:rt4-whois-bounces@icann.org] On Behalf Of Kathy Kleiman Sent: Friday, November 25, 2011 6:04 AM To: rt4-whois@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@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@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@icann.org [mailto:rt4-whois-bounces@icann.org] On Behalf Of Susan Kawaguchi Sent: Thursday, 24 November 2011 6:18 AM To: 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. ---------------------------------------------------------------------------- --- _______________________________________________ Rt4-whois mailing list Rt4-whois@icann.org https://mm.icann.org/mailman/listinfo/rt4-whois -- Image removed by sender. 76 Temple Road, Oxford OX4 2EZ UK t: +44 (0)1865 582 811 . m: +44 (0)7540 049 322 emily@emilytaylor.eu 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. ---------------------------------------------------------------------------- --- _______________________________________________ Rt4-whois mailing list Rt4-whois@icann.org https://mm.icann.org/mailman/listinfo/rt4-whois --

Susan If the chain of legal responsibilities were clarified, don't you think there would be an immediate chilling effect on the industry? Only those registrars willing to go out of business as a result of entering into a retail proxy relationship with a naughty registrant would continue the retail proxy practice. The responsible ones I would expect to stop the practice. Seth From: rt4-whois-bounces@icann.org [mailto:rt4-whois-bounces@icann.org] On Behalf Of Susan Kawaguchi Sent: Friday, November 25, 2011 7:24 PM To: Nettlefold, Peter; Emily Taylor Cc: rt4-whois@icann.org Subject: Re: [Rt4-whois] Proxy provider recommendation 112311 susan draft(2).doc [SEC=UNCLASSIFIED] Hello Peter, I am not proposing to change the privacy service recommendations although I did use language from the agreed upon recommendation since I thought it was a good place to start. Also I do not understand why there is concern with regulating proxy registrations and no concern with regulating privacy registrations. I did raise this before the November 9th call but was not able to participate on that call so I understand your concern that is this may appear last minute. II have given this so much thought over the last 6 months and you saw how uncomfortable I was with not addressing the proxy issues in our discussions in Dakar. I simply do not feel that recommending to ICANN that they completely ignore the proxy issue is the way we should be proceeding. My aim with this recommendation is to target the proxy services run by a registrar. They have a direct contractual relationship with ICANN. The argument that we do not understand all the contractual agreements involved in a proxy service makes sense for deeply integrated proxy services where the registrant and service have agreed upon contractual elements. The "retail" proxy service which is offered to anyone who will pay and agreed to the TOS for the most part are owned or controlled by a registrar. Although, we have to be careful to not try and regulate any other business the registrar may enter into the proxy service directly relates to the most critical information of the domain name registration which should be controlled by ICANN. The NORC study estimates that proxy registrations may be used in as much as 25% of the .com registrations. That is a significant number. Currently, several registrars run proxy services that are responsive and professional. GoDaddy is the gold standard from my experience. They have very well defined processes and when you run into a proxy registration that is a concern I know exactly what I have to do to request the information. The registrant is protected but if they are acting badly then there is a standardized process for receiving the website owners information. Below I pulled out from your email "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." Clarifying the chain of legal responsibilities leaves little recourse for someone impacted by a domain name serving content with a proxy service registration on the WHOIS. If the proxy service provider does not want to reveal the information ( as many refuse to do now) then the only recourse is to file litigation against the proxy service provider. Then when the WHOIS record changes midstream, they are forced to go back to court to amend the complaint. It is extremely burdensome and expensive. There has been some litigation that has held the proxy service provider legally responsible but nothing that has had a chilling effect on the industry. I cannot open James document on my laptop but once I have a copy I will review his latest revisions. Best regards, Susan From: Nettlefold, Peter [mailto:Peter.Nettlefold@dbcde.gov.au] Sent: Thursday, November 24, 2011 9:59 PM To: Emily Taylor Cc: Susan Kawaguchi; rt4-whois@icann.org Subject: RE: [Rt4-whois] Proxy provider recommendation 112311 susan draft(2).doc [SEC=UNCLASSIFIED] 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@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@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@icann.org [mailto:rt4-whois-bounces@icann.org] On Behalf Of Susan Kawaguchi Sent: Thursday, 24 November 2011 6:18 AM To: 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. ---------------------------------------------------------------------------- --- _______________________________________________ Rt4-whois mailing list Rt4-whois@icann.org https://mm.icann.org/mailman/listinfo/rt4-whois -- Image removed by sender. 76 Temple Road, Oxford OX4 2EZ UK t: +44 (0)1865 582 811 . m: +44 (0)7540 049 322 emily@emilytaylor.eu 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. ---------------------------------------------------------------------------- ---