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@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@goodsecurityconsulting.com'; 'emily@emilytaylor.eu'; 'rt4-whois@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@icann.org [mailto:rt4-whois-bounces@icann.org] On Behalf Of Nettlefold, Peter Sent: Tuesday, November 29, 2011 3:16 PM To: 'lynn@goodsecurityconsulting.com'; 'emily@emilytaylor.eu'; 'rt4-whois-bounces@icann.org'; 'rt4-whois@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@goodsecurityconsulting.com [mailto:lynn@goodsecurityconsulting.com] Sent: Wednesday, November 30, 2011 07:47 AM To: Emily Taylor <emily@emilytaylor.eu>; rt4-whois-bounces@icann.org <rt4-whois-bounces@icann.org>; rt4-whois@icann.org <rt4-whois@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@emilytaylor.eu> Sender: rt4-whois-bounces@icann.org Date: Tue, 29 Nov 2011 20:44:50 To: <rt4-whois@icann.org> Subject: [Rt4-whois] ACTION REQUIRED: What do I need to do now?

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