[Gnso-ppsai-pdp-wg] Commercial Use - White Paper

Tue May 13 09:10:26 UTC 2014

All,
Possibly not surprisingly, I support Libby Baney / FWD Strategies paper on
Whois transparency issue.  I respect the need for privacy services (p/p) in
general.  However, I believe if there is an exchange of commerce on a
website that site should not be able to utilize a p/p service.   There
needs to be transparency with whom you are exchanging commerce.

I will attempt to participate on May 13th call.  If I miss the call and
there is any discussion or vote of categorizing p/p uses, I would like on
record my position of the use for commercial sites.

thanks
Susan

~~~~~

*Susan Prosser*VP, Partner & Industry Relations
DomainTools, LLC

T: (206) 838-9060
F: (206) 838-9056
E:
*susan at domaintools.com <http://susan@domaintools.com/> *www.domaintools.com

On Tue, May 13, 2014 at 10:10 AM, Don Blumenthal <dblumenthal at pir.org>wrote:

>  I'll interrupt this discussion for a mention of current terminology. I
> have seen WDPRS a few times during today's messages.
>
>
>
> WDPRS is out of fashion. It's now the Whois Inaccuracy Complaint System.
>
>
>
> Good night. Talk to you all in the morning.
>
>
>
> *From:* gnso-ppsai-pdp-wg-bounces at icann.org [mailto:
> gnso-ppsai-pdp-wg-bounces at icann.org] *On Behalf Of *John Horton
> *Sent:* Monday, May 12, 2014 9:43 PM
> *To:* McGrady, Paul D.
> *Cc:* gnso-ppsai-pdp-wg at icann.org
>
> *Subject:* Re: [Gnso-ppsai-pdp-wg] Commercial Use - White Paper
>
>
>
> Hi Paul,
>
>
>
> I think it's important to note that nobody is currently proposing that
> commercial entities shouldn't be allowed to use p/p services. (Put aside
> the text in Bob's email, because I am guessing that is not what he actually
> meant. Anyway, it's not what's proposed in the paper.) Rather, the proposal
> is that p/p services should not be allowed for domain names *used for
> commercial purposes*. The status of the registrant as a registered
> business, or as an individual, is irrelevant. For some specific discussion
> on this point, I'd encourage you to review pages 8-9 of the document that
> Libby disseminated.
>
>
>
> To your specific point, pre-launch trademark searching and clearance
> wouldn't be "using the domain name" for "commercial activity" as it's
> contemplated. To be precise, the registrant might be engaged in commercial
> activity in other ways, but *not involving the use of the domain name*.
>  The idea is that if a website is actually selling goods and services,
> either via the domain name or some website that it points to (e.g., all of
> the product are listed at example.com, but it points to paypal.com for
> transactions), that would be a commercial *use* of a domain name. If
> you've just registered a domain name in preparation for the launch of a new
> brand or product line, but the domain name isn't actually transacting
> business, I don't think it's commercial *use*. We're talking about
> situations where you select a product, put it in your cart, pull out your
> credit card, and conduct a financial transaction, and I'd argue that
> Internet users have the right to an accurate, transparent Whois record at
> that point in time. In any case, I think that these issues are discussed in
> more detail in the document, and in particular, pages 8-9.
>
>
>
> Let me answer your earlier question about medsindia.com. But first, let
> me first point out that in numerous cases where we've submitted evidence to
> registrars about rogue Internet pharmacies, they respond, "We unfortunately
> cannot take any action unless you prove that the Whois record is
> inaccurate." (Put aside for a moment any disagreement with this response [I
> do not think it's accurate]; the point is that it's a common response by
> some, although not all, registrars.)
>
>
>
> So, to your question, there are two possibilities:
>
>    1. The domain name is accurately registered. Great; now, perhaps, law
>    enforcement or the courts can take action as appropriate.
>    2. Or, it's a falsified or inaccurate Whois. Even if it takes a little
>    leg work, the inaccurate nature of the Whois information can be
>    established, and a WDPRS complaint can be submitted. Either the Whois is
>    corrected, or it isn't and the domain name is suspended.
>
>  In other words, if some registrars say, "The only enforcement mechanism
> we're going to recognize against domain names is a) a court order in our
> jurisdiction, or b) a false Whois," *medsindia*.com is an example where
> all options are off the table. As explained, Canadian law enforcement has
> no jurisdiction because Canada is the one country where the drugs aren't
> shipped to; and a WDPRS is off the table because there's no way to prove
> the Whois is falsified -- it's behind a p/p service.
>
>
>
> Hope that helps!
>
>
>   John Horton
> President, LegitScript
>
>
>
>
>
> *Follow* *Legit**Script*: LinkedIn<http://www.linkedin.com/company/legitscript-com>
> |  Facebook <https://www.facebook.com/LegitScript>  |  Twitter<https://twitter.com/legitscript>
> |  YouTube <https://www.youtube.com/user/LegitScript>  |  *Blog
> <http://blog.legitscript.com>*  |  Google+<https://plus.google.com/112436813474708014933/posts>
>
>
>
> On Tue, May 13, 2014 at 9:37 AM, McGrady, Paul D. <PMcGrady at winston.com>
> wrote:
>
> Hi Kiran,
>
> I'm not sure how pre-launch trademark searching and clearance isn't  a
> commercial activity.  Further, Bob's email said:  "This is one of the
> reasons for keeping whois data public for commercial entities."  There is a
> big difference between excluding proxy services for commercial entities vs
> excluding proxy services for websites that resolve and contain commercial
> content ("This is one of the reasons for keeping whois data public for
> commercial entities.").
>
> What is actually being proposed?
>
>
> Best,
> Paul
>
>
> -----Original Message-----
> From: Kiran Malancharuvil [mailto:Kiran.Malancharuvil at markmonitor.com]
>
> Sent: Tuesday, May 13, 2014 8:31 AM
> To: McGrady, Paul D.
> Cc: John Horton; gnso-ppsai-pdp-wg at icann.org
> Subject: Re: [Gnso-ppsai-pdp-wg] Commercial Use - White Paper
>
> Paul, we've discussed that as well. With the input from several of our
> clients that engage in this as a best practice, we understand that a
> pre-launch website would be able to utilize p/p because it is not yet
> engaging in commercial activity. Once the product/service goes live and is
> an active offering, it can drop the veil so-to-speak.
>
> K
>
> Kiran Malancharuvil
> Internet Policy Counselor
> MarkMonitor
> 415-419-9138 (m)
>
> Sent from my mobile, please excuse any typos.
>
> > On May 12, 2014, at 5:27 PM, "McGrady, Paul D." <PMcGrady at winston.com>
> wrote:
> >
> > Thanks Kiran.  Thanks Bob.
> >
> > The other side of the balancing act on this is, of course, the
> legitimate need for commercial entities to have access to proxy services.
>  For example, a brand owner who is trying to roll out a new brand and
> attempting to secure the corresponding domain names in advance of their
> first trademark filing in order to cut down on the amount of cybersquatting.
> >
> > Best,
> > Paul
> >
> >
> > -----Original Message-----
> > From: Kiran Malancharuvil [mailto:Kiran.Malancharuvil at markmonitor.com]
> > Sent: Tuesday, May 13, 2014 8:25 AM
> > To: McGrady, Paul D.
> > Cc: John Horton; gnso-ppsai-pdp-wg at icann.org
> > Subject: Re: [Gnso-ppsai-pdp-wg] Commercial Use - White Paper
> >
> > Paul,
> >
> > Agree with Bob. No one expects them to be honest but with the new
> verification requirements, they will lose the domain name.
> >
> > K
> >
> > Kiran Malancharuvil
> > Internet Policy Counselor
> > MarkMonitor
> > 415-419-9138 (m)
> >
> > Sent from my mobile, please excuse any typos.
> >
> > On May 12, 2014, at 4:58 PM, "McGrady, Paul D." <PMcGrady at winston.com
> <mailto:PMcGrady at winston.com>> wrote:
> >
> > John,
> >
> > Setting aside for a moment the specific example below, the part I don't
> completely understand is why we think that a domain name owner who is using
> the domain name for a blatantly illegal purpose without regard for the law
> will somehow be inclined to provide accurate information in their WHOIS
> records if they are not allowed to contract for a proxy service.
> >
> > Thanks in advance for your thoughts.
> >
> > Best,
> > Paul
> >
> >
> > Paul D. McGrady Jr.
> >
> > Partner
> >
> > Chair, Trademark, Domain Names and Brand Enforcement Practice
> >
> > Winston & Strawn LLP
> > 35 W. Wacker Drive
> > Chicago, IL 60601-9703
> >
> > D: +1 (312) 558-5963
> >
> > F: +1 (312) 558-5700
> >
> > Bio<http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html>
> | VCard<http://www.winston.com/vcards/996.vcf> | Email<mailto:
> pmcgrady at winston.com> | winston.com<http://www.winston.com>
> >
> > <image001.jpg>
> >
> >
> > From: gnso-ppsai-pdp-wg-bounces at icann.org<mailto:
> gnso-ppsai-pdp-wg-bounces at icann.org> [mailto:
> gnso-ppsai-pdp-wg-bounces at icann.org] On Behalf Of John Horton
> > Sent: Tuesday, May 13, 2014 5:40 AM
> > To: gnso-ppsai-pdp-wg at icann.org<mailto:gnso-ppsai-pdp-wg at icann.org>
> > Subject: Re: [Gnso-ppsai-pdp-wg] Commercial Use - White Paper
> >
> > Hi all,
> >
> > Following up on the white paper that Libby Baney just circulated, and as
> we wrap up our discussion regarding distinguishing between commercial and
> non-commercial use, I thought it might be helpful to provide a concrete
> example of a domain name that (I trust we can all agree) is being used for
> commercial purposes. Perhaps we can collectively think through whether it
> makes sense for this domain name to be afforded privacy protection. For
> simplicity, I am only using one domain name as an example, but there are
> thousands like this in our database alone. I hope that a concrete example
> will be helpful to the discussion.
> >
> > Let's take the domain name medsindia.com<http://medsindia.com>. First,
> as you can verify with a Whois query, it is using proxy/privacy services.
> >
> > Registrant Name: General (c/o Rebel.com<http://Rebel.com> Privacy
> Service) Registrant Organization: Private Domain Services Registrant
> Street: 300-12 York Street Registrant City: Ottawa Registrant
> State/Province: ON Registrant Postal Code: K1N 5S6 Registrant Country: CA
> Registrant Phone: +1.866-497-3235<tel:%2B1.866-497-3235>
> > Registrant Phone Ext:
> > Registrant Fax:
> > Registrant Fax Ext:
> > Registrant Email: IVP1JQKYRM3LQED1 at rebelprivacy.com<mailto:
> IVP1JQKYRM3LQED1 at rebelprivacy.com>
> >
> > How is it being used? It's fairly straightforward: it sells addictive
> (controlled substances) and other prescription drugs without a valid
> prescription. But that's not all:
> >
> >  *   As noted, it sells prescription drugs, including controlled
> substances, without requiring a valid prescription.
> >  *   The drugs are not sold by a pharmacy licensed or otherwise
> recognized in the patient's jurisdiction, as is the standard requirement.
> >  *   The drugs are considered unapproved or falsified, depending on the
> regulatory language in the jurisdiction. Part of the reason is that they
> are illegally imported into the customers' jurisdiction and thus
> unregulated for safety or authenticity.
> > To be clear, this domain name is not being used for legal commercial
> purposes in any jurisdiction. (Despite its claim to be using a licensed
> pharmacy in India, not even in India, for reasons I can explain separately
> if anyone wants to know.) I choose this domain name because I do not think
> its unlawful or dangerous use can be disputed. I would further argue that
> the use of the p/p protection allows the unlawful actor to continue
> operating, as I explain below.
> >
> > Being privacy protected, of course, we can't immediately tell who is
> operating the website. Can we get law enforcement or courts in the
> registrar's jurisdiction to do anything -- e.g., go to the registrar and
> ask or require them to reveal the identity of the registrant? No. Try to
> buy a drug such as Xanax from this website. This Internet pharmacy will
> ship anywhere in the world except to Canada -- where its registrar and
> servers are located. To protect its ability to sell drugs globally, the
> registrant has sacrificed sales to a single country, and chosen a registrar
> and servers there, to create a safe haven. Consequently, Canadian law
> enforcement cannot point to a violation of Canadian law: no drugs are being
> shipped into Canada -- just everywhere else around the world. (Which, we
> can infer, is why this registrant removed Canada from their shipping
> destinations.) And, the reverse is true -- a court order or law enforcement
> request from outside of Canada can simply be ignored by the registrar and
> server companies in Canada. Those who have argued that the best way to deal
> with p/p use by illegal actors is simply to get a court order are not
> accounting for this quite common scenario.
> >
> > Being able to hide their identity in the Whois record is also the
> perfect set up for another reason: many registrars have said in the past
> that they only way that they can (or perhaps, will) take action on a domain
> name is if the Whois record is falsified. But how would we know? It is
> privacy protected. That removes the WDPRS as a mechanism for dealing with
> abusive behavior.
> >
> > Does this commercial registrant have a legitimate need for p/p services?
> I would argue that that is not the question to be answered. The question
> is: Does a consumer, consumer protection firm, government agency, etc. have
> the right to know who is operating this website? I would submit to this
> group that it is incumbent upon us to recommend a thoughtful, balanced
> policy that prevents this sort of "perfect set up" for Internet criminals
> to hide their identity as this one has. Keep in mind that, as pointed out
> in the circulated paper, no such right exists in the offline world --
> rather, consumers have the right to know who they are dealing with. Ample
> requirements exist for business registrations to do business transparently.
> There should be no difference in the online world.
> >
> > Finally, recall that the Affirmation of Commitments (AoC) requires
> "timely, unrestricted and public access to accurate and complete WHOIS
> information." The AoC goes on to state that WHOIS policy and its
> implementation needs to meet "the legitimate needs of law enforcement and
> promote consumer trust." I ask the group, is ICANN fulfilling its
> commitment, not only to law enforcement but especially to promote consumer
> trust, if it allows websites like this to continue using p/p services?
> >
> > Thank you for your consideration.
> >
> > John Horton
> > President, LegitScript
> > [
> https://static.legitscript.com/assets/logo-smaller-cdb8a6f307ce2c6172e72257dc6dfc34.png
> ]
> >
> >
> >
> > Follow LegitScript: LinkedIn<
> http://www.linkedin.com/company/legitscript-com>  |  Facebook<
> https://www.facebook.com/LegitScript>  |  Twitter<
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> http://blog.legitscript.com>  |  Google+<
> https://plus.google.com/112436813474708014933/posts>
> >
> > On Mon, May 12, 2014 at 11:40 PM, Libby Baney <
> libby.baney at fwdstrategies.com<mailto:libby.baney at fwdstrategies.com>>
> wrote:
> > All --
> >
> > I appreciate the dialogue the group has begun regarding WHOIS
> transparency for entities engaged in commercial activity. With the hope of
> encouraging discussion on the merits of the issue, I am pleased to share
> the attached white paper: Commercial Use of Domain Names: An Analysis of
> Multiple Jurisdictions.
> >
> > As you'll see, the paper addresses the following question: Should domain
> name registrants who sell products or services on their websites should be
> able to conceal their identity and location in the domain name
> registration? The paper argues that they should not. Rather, the authors
> find that requiring domain name registrants engaged in commercial activity
> to provide transparent WHOIS information falls squarely in line both with
> ICANN's commitment to Internet users and existing global public policy to
> keep businesses honest and consumers safe. Accordingly, the paper
> recommends an approach that balances personal privacy and consumer
> protection rights. On the one hand, domain names used for non-commercial
> purposes (e.g., personal blogs) should, the authors believe, be permitted
> to utilize privacy or proxy registration. This reflects a fundamental right
> to privacy of domain name registrants not engaged in commerce. However, the
> authors do not believe the same right exists for registrants of websites
> engaged in commerce - a conclusion borne out by our research.
> >
> > It goes without saying that this group is divided on the issue of
> requiring WHOIS transparency for sites engaged in commercial activity. As
> some in the PPSAI WG have commented, these issues may be complicated but
> they nonetheless merit our full consideration. We hope the attached white
> paper stimulates further thinking and group discussion on the issues.
> >
> > I look forward to continuing the discussion tomorrow.
> >
> > Libby
> >
> > --
> > Libby Baney, JD
> > President
> > FWD Strategies International
> > www.fwdstrategies.com<http://www.fwdstrategies.com>
> > P: 202-499-2296<tel:202-499-2296>
> >
> >
> > _______________________________________________
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> >
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> Internal Revenue Code of 1986, as amended.
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> Therefore, if this message has been received in error, please delete it
> without reading it. Your receipt of this message is not intended to waive
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