[Gnso-ppsai-pdp-wg] Agenda and documents for WG call on 7 April 2014 -- re "Annex"

Kathy Kleiman kathy at kathykleiman.com
Tue Apr 7 13:01:26 UTC 2015

Hi Steve,
Tx for walking us through this Annex.  I think, like the Policy itself, 
the Annex covers one area in which Providers may have challenges for the 
Requester, but only there.  There are certainly others.

In this Annex, I would recommend deleting "only":

"Under these standards, disclosure is in bad faith and wrongful only 
when it is effected by the Requestor having made knowingly false 
representations to the Provider with the intent to deceive. Disclosure 
is not wrongful if the Requestor had a good faith basis for seeking 
disclosure at the time the Request was submitted to the Provider."

Clearly, disclosure is also wrongful if the Requestor a) did not have 
the legal expertise to make the judgment in question (e.g., copyright or 
trademark infringement) and/or b) if the Requestor did not have the 
authority of the trademark or copyright owner to make the request and/or 
c) if the Requestor did not have the authority to bind the trademark or 
copyright owner to the limitations on the use of the data once revealed.

Would you recommend that we add additional wording to this Annex 1 or 
add multiple Annexes?

> Just a brief note that could facilitate our discussion tomorrow with 
> regard to the “Annex” to the draft disclosure framework.  (Thanks Mary 
> for recirculating this text.)
> As the title spells out, the document sets forth “Some options for 
> resolving disputes arising from alleged false statements leading to 
> improper disclosures*.” *The Annex is not intended to address any 
> appeal mechanism regarding a disclosure request, but only the 
> consequences of a request wrongfully granted because based on false 
> pretenses.
> In this document, “some” options basically boils down to two options. 
> Under the first option, a requestor would agree to submit such 
> disputes to an arbitrator.  (The other party to the dispute, the 
> privacy/proxy service provider, would presumably agree to this method 
> as well, as part of its accreditation process.) The document provides 
> some more detail about the arbitration process, though certainly much 
> more work would need to be done to implement it.
> Under the second option, the requestor would agree, for purposes of 
> such wrongful disclosure disputes, to submit to the jurisdiction of 
> the courts in the territory where the service provider is located.
> Our discussions over the past few weeks may have made the last 
> paragraph of the Annex document less relevant. It is based on the 
> assumption that, under either option, not all requestors would 
> necessarily be required to agree.  As specified in section I.b.iv of 
> the overall document, a service provider could, if it chose, institute 
> a “trusted requestor” program to facilitate processing of requests 
> from reliable sources.  The last paragraph of the Annex says that a 
> service  provider could, if it chose, make such an agreement a 
> condition of entry into a “trusted requestor” program, if it had one.  
> This last paragraph may be irrelevant if the group decides that _some_ 
> dispute resolution process should be available _whenever_ the service 
> provider believes it has wrongfully disclosed based on false 
> pretenses.  But ultimately the group still needs to decide whether 
> there will be such a mandatory dispute resolution process, and if so, 
> which process it will be (arbitration, or litigation in the service 
> provider’s home court).
> Looking forward to our discussion tomorrow.
> Steve Metalitz
> *From:*gnso-ppsai-pdp-wg-bounces at icann.org 
> [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] *On Behalf Of *Mary Wong
> *Sent:* Monday, April 06, 2015 10:05 AM
> *To:* gnso-ppsai-pdp-wg at icann.org
> *Subject:* [Gnso-ppsai-pdp-wg] Agenda and documents for WG call on 7 
> April 2014
> Dear WG members,
> The proposed agenda for the next WG call on 7 April 2014 is as follows:
>  1. Roll call/updates to SOI
>  2. Continue deliberations on Category F, specifically: (a)
>     attestation/signatory for Requests; (b) Section III.C(5); (c)
>     non-use of high-volume automated processes; and (d) the Annex.
>  3. Next steps/next meeting
> Please also find attached an updated version of the draft disclosure 
> framework for agenda item #2. This version accepts all the changes up 
> to last week (excluding prior suggested changes to the type of 
> information required on a Requestor), and adds the recent language 
> suggested by Val on attestation, Todd and Volker on III.C(5) (in 
> square brackets as two alternate versions), and a final 
> paragraph/sentence on the automation issue, based on language 
> previously suggested by Todd and a suggestion by James to look at the 
> specific language in the 2013 RAA applicable to this type of activity.
> The draft Annex 1 is also attached – it preserves the original text 
> that was presented to the WG several weeks ago, since the WG chairs 
> thought it would be easier to review that way in order to ensure that 
> everyone is clear about the options being offered.
> Thanks and cheers
> Mary
> Mary Wong
> Senior Policy Director
> Internet Corporation for Assigned Names & Numbers (ICANN)
> Telephone: +1 603 574 4892
> Email: mary.wong at icann.org <mailto:mary.wong at icann.org>
> _______________________________________________
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