[Gnso-ppsai-pdp-wg] FW: Draft Grouping of Charter Questions - some edits
Stephanie Perrin
stephanie.perrin at mail.utoronto.ca
Wed Jan 8 16:47:31 UTC 2014
1. First, this is a very interesting discussion, in which I find myself strenuously agreeing with Volker.
2. In Canada, providers of credit card services (especially type 1 banks) are heavily regulated, making this analogy not quite so relevant. I am no expert in bank regulation (goes with the I-am-not-a-lawyer caveat) but part of the issue here is that in processing credit card payments for suspected criminal activity, banks would be participating in handling the proceeds of crime….and profiting by it. Registrars and proxy service providers, on the other hand, could not be construed as doing this. All they are doing is providing a domain name, not even a website. Since ICANN has not defined what a domain name actually is, (please point me to it if indeed they have) then provision of the domain name is pretty attenuated in the chain of control.
3. Banks are covered by banking privacy regulation even if they are not covered by data protection law, in most jurisdictions. When they are covered by data protection law, it is worth noting that a lot of complaints are generated about precisely this problem…when another individual seeks the personal information of a bank client, without a right to get it, using either bullying or social engineering techniques. Bank employees are held to account in these instances, sometimes in my opinion somewhat unfairly.
4. With all due respect to the employees of registrars who have to look into allegations of fraud or criminal activity or whatever, or deal with these requests for information, they are not trained investigators, subject to the rule of law that governs criminal investigation. Access to redress for the registrant would have to be through civil litigation (some of it probably aimed at ICANN for requiring this activity, if indeed this committee decides to require this). I don't believe that establishing this kind of quasi legal regime is within ICANN's remit. I understand that you can do all kinds of things through contract law, that does not make it right however, particularly when you are dealing with a human right such as free expression, freedom of association, or privacy, which are all associated with provision of a domain name in my view.
5. The cybercrime treaty (Budapest convention) was aimed at solving some of these inter-jurisdictional problems. They appear to have stalled, possibly over some well known problems. This stuff is difficult. I would suggest that ICANN restrict its forays into this area to developing an instrument that could streamline the process of serving notice of suspected criminal activity, and propose it to GAC folks to bring to that forum. AS experts in domain name registration and management, ICANN is in a position to help define what information is necessary and useful. Possibly it could be served without a formal mutual legal assistance treaty, it would be up to governments to decide that. Not all the countries that you are interested in have signed the convention, naturally, nor would all countries agree to MLATS with every other country. As Volker has pointed out, this is the job of national governments coming together to agree to international treaties, which incidentally in most countries have to be approved and voted by national legislatures.
6. The internet has grown up, it is time to formalize some of these legal mechanisms elsewhere, not require private parties to continue to do work-arounds that expose them to legal risk. This accreditation is looking a lot like a quasi-regulatory function, this committee has to be careful how far it goes. I will come back to the trade and competition issues later.
Stephanie (not a lawyer)Perrin
On 2014-01-08, at 10:27 AM, Volker Greimann <vgreimann at key-systems.net> wrote:
> Hi John,
>
> thank you for your comments, and yes, we do our best to deal with obvious illegal activities reported to us because we think it is right, but not because there is a legal obligation to do so.
>
> First, I think Tim raised a very valuable point, which is that there needs to be a differentiation between what providers are doing voluntarily and what they are doing because it is required (be it by contract, law or other).
>
> Registrars (and p/p service providers even more so) do not share the same resources that banks do, nor do we have access to the same wealth of information about our customers. Therefore, we cannot be expected to investigate or make a determination of whether a service is illegal under our own jurisdiction unless it is obvious that it is. There are simply no ressources available for such investigations. If we have to "figure it out", we are basically moving away from the obvious violations and moving into the territory of the courts and LEAs.
>
>
> Second, your illegal drugs analogy is flawed since if a certain service were legal in the jurisdiction of the provider, but is being provided in a country where it is not, there simply is no requirement to take action, since no laws are being broken in his jurisdiction. If you are in the US and US laws are not being broken by publishing for example Nazi hatepages and propaganda, denying the holocaust or similar actions which are highly illegal in Germany but not in the US because the US has a different definition of free speech, then as much as I hate it there is no court in the US that would require the provider to take action. Similarly, if copyright laws are different in other countries, for example with regard to the date a creation enters the public domain, then a provider in a country where Mickey Mouse is already in the public domain should not be required to take action against a site that publishes Mickey Mouse cartoons just because the copyright protection period is longer in the US. As a German provider, I will adamantly refuse to enforce laws of a different country unless these laws match the laws of Germany.
>
> While it could be argued there may be a moral obligation in certain cases, there certainly is no legal obligation and we stop trying to construct super-national law that trumps national law. That is ultimately the job of national governments coming together and agreeing to international treaties.
>
> There also is no need to get a German court order, all you need is for a German court to confirm that a court order in a different court should be enforceable in Germany as well. There are sufficiently advanced legal instruments already in place.
>
> Volker
>
>> Hi all,
>>
>> Thanks for the comments. Volker, thanks for your comments, and I should also note that LegitScript has been appreciative of Volker's company's (Key-Systems) approach to anti-abuse issues in the area we deal with. (And, Tim, we think GoDaddy's anti-abuse team is great and work with them closely.)
>>
>> That said, let me respond on a few points.
>>
>> First, I'll respond to Tim's question, and Volker's statement about banks. It's simply inaccurate that banks only take action based on legal requirements, law enforcement requests or court orders. LegitScript works closely with Visa and other credit card networks and through them with acquiring banks, so I feel comfortable stating that we know this area pretty well. The very firm position of the credit card networks is that acquirers are bound to ensure that the merchant's activity is legal in the cardholder's network as well as the merchant's network. No credit card network would put up with a bank insisting that they need a court order or law enforcement request. Generally, when that illegal activity is shown, the bank cancels not only the credit card account but the entire account. Without, I again emphasize, a court order or law enforcement request. (I should note here that I'm not talking specifically about disclosure of the merchant's identity but about providing or canceling services in general.)
>>
>> I think that this is a useful analogy because, like in the ICANN sphere, it's a matter of contract. And it is required (not voluntary on the part of the bank.) Like in the ICANN sphere, we also see a common dynamic where -- I'll use illegal pharma as an example, again because I know it -- an illegal drug seller living in, say, Thailand targeting customers in Germany chooses a bank in the US (where German law enforcement has no jurisdiction), ships the drugs from China, and so forth. If the bank were to argue to Visa, "Well, we're in the US and US laws aren't being broken. Get me a court order from the US." that argument would be immediately rejected and Visa would fine the bank. The reason is that the credit card network sphere is largely governed by contract, because -- just like we see in the ICANN world -- once companies start insisting on local court orders, it gives criminals an opportunity to pick safe havens.
>>
>> As to search engines (responding to Tim's question about what other industries do, and whether it's voluntary or required), using Google as an example, their voluntary and I think very committed efforts (disclosure: we work closely with them as well as Bing/Yahoo) to stop rogue pharma from using their paid ad services also occurred pursuant to a half a billion (USD) fine and non-prosecution agreement. Microsoft and Yahoo quickly adopted the same standards after seeing what happened. Voluntary? Well, I think required is the better word: it's very clear in the search engine space that if you're running an ad program, it's your responsibility to make sure that the advertiser (again, in my area, rogue pharma) is operating legally both in the country where they are operating and where they are marketing drugs to. Otherwise, you can be held responsible for turning a blind eye to criminal activity and profiting from it.
>>
>> That said, Volker and others raise entirely valid points -- but the point I'd make is, I think this group needs to achieve balance on all of these considerations, not discount those Gema and I have raised. For example, Volker (and separately Kathy) have both raised the point that a complainant could be anti-competitive or falsely claiming to be a victim. That's absolutely true. We see that too, and have to deal with it. I just dealt with a situation a few weeks ago where someone claiming to be a victim was, in fact, a rogue Internet pharmacy competitor. (But, we figured it out.) That doesn't take away from the fact that some complainants are, indeed, victims. These are not mutually exclusive, and we need to recognize that both dynamics exist -- not assume that all complainants are victims or are fraudulent.
>>
>> Coming back to the task at hand, I'd encourage the group to consider those questions. They are just questions, which are, of course, designed to solicit better information and responses. If they can be improved and rewritten, I'm all for it. And don't assume from this that I am suggesting that a complainant (seeming to be a victim) should be immediately told the registrant's identity -- that sounds like a horrible policy. We're only proposing questions here to elicit better information.
>>
>> I hope that information about credit card networks, banks and search engines is helpful. Please do not hesitate to let me know if I can clarify anything.
>>
>> John Horton
>> President, LegitScript
>>
>>
>> Follow LegitScript: LinkedIn | Facebook | Twitter | YouTube | Blog | Google+
>>
>>
>> On Wed, Jan 8, 2014 at 6:03 AM, Tim Ruiz <tim at godaddy.com> wrote:
>> I agree with Volker. That said, I would be very interested in understanding how banks, credit card companies, and search engines actually deal with multi-jurisdictional issues. We may be able to glean some concepts that could be applied to p/p accreditation.
>>
>> Tim
>>
>>
>> On Jan 8, 2014, at 7:21 AM, "Volker Greimann" <vgreimann at key-systems.net> wrote:
>>
>>> Hi all,
>>>
>>> to respond to John's comments:
>>>
>>>>
>>>> When an allegation of illegal activity is submitted to the p/p service provider, it is important to understand that it may be coming from a victim of the crime.
>>> When an allegation of illegal activity is submitted, it is important to understand that it may be coming from someone who merely claims to vbe a victim of a crime, but is in fact not. The purposes for which someone may want to see the underlying registrant data are multifold and many of them are with the intent to later harass the privacy service user, or worse. We must remember in such cases that there may be a very good reason why the registrant has opted for whois privacy. It may therefore be essential for the registrant to know who has inquired to have messages relayed or to have the private data revealed to be able to help the p/p service provider better understand the situation. While I understand there may be cases where a complainant may also have an interest in keeping his identity hidden, he can avail himself of a multitude of methods to ensure this prior to launching the complaint. I do not see this question as actually necessary.
>>>> Similarly, I proposed an additional question regarding whether, if disclosure to the registrant is not required, it should be permitted even if law enforcement explains that it will jeopardize an investigation. The rationale for this is simply that in many cases -- in the offline world, as the online world -- disclosing this information puts a legitimate investigation at risk.
>>> Agreed, but not all law enforcement is created equal. Basically, I would hold that the p/p operator is unable to determine if an investigation is legitimate or not. Therefore, the only law enforcement that should receive special priviledges should be the law enforcement of the country where the p/p service is based or operates from.
>>>
>>> No such privileges should be extended to private organizations, no matter how well intentioned unless they are specially authorized be the laws of the country of the p/p operator.
>>>> The proposed questions pertaining to jurisdiction are based on the problem I identified (and Gema did, as well) in our earlier emails. I do feel that the way I've written the questions can be clarified and improved, so I welcome anyone who would like to give that a shot.
>>>> Similarly, we propose a question that relates to the other business interests controlled by or affiliated with the p/p service. To explain this, we have sometimes seen that the criminal organization "is" the privacy/proxy service. (Currently, of course, there is no accreditation scheme, but the fact remains that is what we see, and I am happy to provide examples if need be.) To be very specific, we know of circumstances where a rogue Internet pharmacy network operates its own "proxy" service, or alternatively, the proxy service -- that is, the individuals who operate it -- also operates as affiliate marketers for rogue networks, using their own privacy/proxy service primarily for their own illegal purposes.
>>> Under an accreditation scheme, if actual collusion can be proven, that should probably be a reason to pull the accreditation of the service.
>>>> Finally, although I unfortunately had to miss the call this morning, I believe that some of the comments may have argued that registrars (or, ICANN) should not have to address criminal jurisdictional issues (that is, multi-jurisdictional complexities). I'd note that banks, credit card networks and search engine ad programs regularly have to address precisely the same multi-jurisdictional questions relating to criminal activity on their platform and do not simply leave it to law enforcement. I would argue that there is no reason to consider registrars a special case that are for some reason exempt from having to address the same issues that companies in the financial and advertising sectors have had to address, and have by and large done so quite competently. I am confident that the registrar community can competently do the same.
>>>
>>> John, please note that registrars are not (and are nothing like) banks or credit card networks, which are highly regulated by national laws. And even banks take action only based upon legal requirements, law enforcement requests or court orders. To demand any more for less regulated private companies is frankly ridiculous.
>>>
>>> Your new questions as to related to asking them about applicability of foreign law enforcement requests sound like an unrealistic wish list at best. Providers bowing to every whim of foreign law enforcement or organizations without actual legal authority would expose themsemselves to severe legal liability.
>>>
>>> Best,
>>>
>>> Volker
>>>
>>>>
>>>> Thank you for the opportunity to provide this input, and I welcome any suggestions as to how our suggestions can be improved or refined.
>>>>
>>>> John Horton
>>>> President, LegitScript
>>>>
>>>>
>>>> Follow LegitScript: LinkedIn | Facebook | Twitter | YouTube | Blog | Google+
>>>>
>>>>
>>>> On Tue, Jan 7, 2014 at 7:44 AM, Marika Konings <marika.konings at icann.org> wrote:
>>>>
>>>>
>>>> From: Kathy Kleiman <kathy at kathykleiman.com>
>>>> Date: Tuesday 7 January 2014 16:38
>>>> To: Marika Konings <marika.konings at icann.org>
>>>> Subject: Fwd: Draft Grouping of Charter Questions - some edits
>>>>
>>>> Hi Marika, could you post this to our working group?
>>>>
>>>>
>>>>
>>>> -------- Original Message --------
>>>> Subject: Draft Grouping of Charter Questions - some edits
>>>> Date: Tue, 07 Jan 2014 10:35:02 -0500
>>>> From: Kathy Kleiman <kathy at kathykleiman.com>
>>>> To: gnso-ppsai-pdp-wg at icann.org
>>>>
>>>> Hi All,
>>>> Hopefully you have seen the proposed edits I just to the SG-C Input Template (I haven't seen them posted).
>>>>
>>>> Attached here are some inputs to the Draft Grouping of Charter Questions - with an organizational-type perspective being added. The world is really not just commercial/individual, but truly one of commercial, noncommercial and individual (as ICANN has organized its non-contracted parties).
>>>>
>>>> For a religious group, political group, hobby group, dissident group may be organized as a limited liability company to protect the members in case someone falls in the building, but that does not nullify the fact that the group is engaged primarily and fully in noncommercial speech (as the wide array of members of NCSG show).
>>>>
>>>> Again edits highlighted and hopefully visible. I would like to see much more discussion on this issue in our next meeting and over the list.
>>>> Best,
>>>> Kathy
>>>>
>>>> :
>>>>> I will miss the first 30 minutes due to another obligation, but will join as soon as I can.
>>>>>
>>>>>
>>>>> From: gnso-ppsai-pdp-wg-bounces at icann.org [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] On Behalf Of Marika Konings
>>>>> Sent: Monday, January 06, 2014 4:30 AM
>>>>> To: gnso-ppsai-pdp-wg at icann.org
>>>>> Subject: [Gnso-ppsai-pdp-wg] Proposed Agenda - PPSAI PDP WG Meeting
>>>>>
>>>>>
>>>>> Dear All,
>>>>>
>>>>>
>>>>> Please find below the proposed agenda for the next PPSAI PDP WG meeting (Tuesday 7 January at 15.00 UTC).
>>>>>
>>>>>
>>>>> Best regards,
>>>>>
>>>>>
>>>>> Marika
>>>>>
>>>>>
>>>>> Proposed Agenda – PPSAI PDP WG Meeting – 7 January 2013
>>>>>
>>>>> 1. Roll Call / SOI
>>>>>
>>>>> 2. Review & finalise SG/C Template (see revised version attached)
>>>>>
>>>>> 3. Review & finalise SO/AC Outreach Letter (see revised version attached)
>>>>>
>>>>> 4. Input to EWG Survey (see attached)
>>>>>
>>>>> 5. Update on WG members survey (to participate, please go to https://www.surveymonkey.com/s/86N33WX)
>>>>>
>>>>> 6. Review proposed charter question groupings (see latest version attached)
>>>>>
>>>>> 7. Next steps & confirm next meeting
>>>>>
>>>>>
>>>>>
>>>>> _______________________________________________
>>>>> Gnso-ppsai-pdp-wg mailing list
>>>>> Gnso-ppsai-pdp-wg at icann.orghttps://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
>>>>
>>>>
>>>>
>>>>
>>>> _______________________________________________
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>>>>
>>>>
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>>>
>>>
>>> --
>>> Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung.
>>>
>>> Mit freundlichen Grüßen,
>>>
>>> Volker A. Greimann
>>> - Rechtsabteilung -
>>>
>>> Key-Systems GmbH
>>> Im Oberen Werk 1
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>>>
>>> --------------------------------------------
>>>
>>> Should you have any further questions, please do not hesitate to contact us.
>>>
>>> Best regards,
>>>
>>> Volker A. Greimann
>>> - legal department -
>>>
>>> Key-Systems GmbH
>>> Im Oberen Werk 1
>>> 66386 St. Ingbert
>>> Tel.: +49 (0) 6894 - 9396 901
>>> Fax.: +49 (0) 6894 - 9396 851
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>>>
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>>>
>>> This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone.
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>
>
> --
> Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung.
>
> Mit freundlichen Grüßen,
>
> Volker A. Greimann
> - Rechtsabteilung -
>
> Key-Systems GmbH
> Im Oberen Werk 1
> 66386 St. Ingbert
> Tel.: +49 (0) 6894 - 9396 901
> Fax.: +49 (0) 6894 - 9396 851
> Email: vgreimann at key-systems.net
>
> Web: www.key-systems.net / www.RRPproxy.net
> www.domaindiscount24.com / www.BrandShelter.com
>
> Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook:
> www.facebook.com/KeySystems
> www.twitter.com/key_systems
>
> Geschäftsführer: Alexander Siffrin
> Handelsregister Nr.: HR B 18835 - Saarbruecken
> Umsatzsteuer ID.: DE211006534
>
> Member of the KEYDRIVE GROUP
> www.keydrive.lu
>
> Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen.
>
> --------------------------------------------
>
> Should you have any further questions, please do not hesitate to contact us.
>
> Best regards,
>
> Volker A. Greimann
> - legal department -
>
> Key-Systems GmbH
> Im Oberen Werk 1
> 66386 St. Ingbert
> Tel.: +49 (0) 6894 - 9396 901
> Fax.: +49 (0) 6894 - 9396 851
> Email: vgreimann at key-systems.net
>
> Web: www.key-systems.net / www.RRPproxy.net
> www.domaindiscount24.com / www.BrandShelter.com
>
> Follow us on Twitter or join our fan community on Facebook and stay updated:
> www.facebook.com/KeySystems
> www.twitter.com/key_systems
>
> CEO: Alexander Siffrin
> Registration No.: HR B 18835 - Saarbruecken
> V.A.T. ID.: DE211006534
>
> Member of the KEYDRIVE GROUP
> www.keydrive.lu
>
> This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone.
>
>
>
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