[Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation

Volker Greimann vgreimann at key-systems.net
Wed Apr 8 13:52:31 UTC 2015

Hi Todd,

it fits the remit only if that becomes a trigger for a reveal process, 
i.e. ifconditions a, b, and c are met and d, e, and f are not present, g 

ICANN cannot tell third parties what to do. But it can tell a contracted 
party what they must accept and what they can ignore. And if a request 
does not meet the requirements, no obligation of the provider to act in 
a certain way is triggered.

In other words, if the complainant dots the "i"s and crosses the "t"s, 
inaction by the provider could result in compliance action. If the 
complainant does not care to follow prescribed procedure, nothing the 
provider does results in compliance action.


Am 08.04.2015 um 15:29 schrieb Williams, Todd:
> I’m sorry, I’m getting quite confused on this part.
> Ultimately what we’re discussing is an accreditation policy for P/P 
> Providers, correct?  And one of the questions (the big question) that 
> we’ve been discussing is when can/should/must accredited P/P Providers 
> disclose?  We’ve developed a fairly detailed framework to answer that 
> question (at least in the trademark and copyright context), and one 
> component of that framework is that a request for disclosure must 
> include the requisite attestation (and, for the record, I like Val’s 
> language as to what that attestation should look like).  So far that 
> all makes sense to me.
> But now we’re debating what form the document that delegates authority 
> from the trademark/copyright owner to third-party agents should take 
> (and who must sign it)?  As Paul mentioned: how does that fit into our 
> remit?  It doesn’t have anything to do with the P/P providers whom 
> ICANN will be accrediting – right?  As Kathy mentioned below, the 
> forms will not “be delivered to the Provider and certainly not 
> checked, verified or confirmed by the Provider.”  But if that’s the 
> case – meaning that the P/P Provider is completely out of the loop – 
> then how can ICANN regulate the content of that form (and who must 
> sign it) by accrediting (or de-accrediting) a P/P Provider who has 
> nothing to do with the form, isn’t checking, verifying, or confirming 
> it, and in fact may never see it?  I guess I don’t see the contractual 
> “hook” any more.
> To put it another way: the trademark/copyright owners have no 
> contractual relationship with ICANN, right?  So how can ICANN tell 
> them what form to use when they choose to delegate authority (and who 
> must sign it)?  And when we say that the forms should be “available 
> for audit” – audit by whom?  By ICANN?
> Bottom line: I would think that the most that we can do is perfect 
> Val’s attestation language (and I like it the way that it is), and 
> then leave it at that.  Does that mean that there is a risk that the 
> attestation will be false in some cases?  Yes.  But can ICANN police 
> false attestations through its contracting/accreditation of P/P 
> Providers?  I don’t see how.
> *From:*gnso-ppsai-pdp-wg-bounces at icann.org 
> [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] *On Behalf Of *Kathy Kleiman
> *Sent:* Tuesday, April 07, 2015 3:24 PM
> *To:* McGrady, Paul D.; gnso-ppsai-pdp-wg at icann.org
> *Subject:* Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on 
> attestation
> Hi Paul, Hi Jim,
> No, the proposal would not apply to attorneys. The proposal is 
> designed to apply to consultants and other outside entities not bound 
> by the attorney-client relationship. We'll be certain to clarify in 
> the next version. But tracing back to our discussions over the last 
> few weeks -- we have been concerned about parties *other than 
> attorneys and officers of the company* making legal allegations and 
> taking possession of private data.  By the rules we live by, attorneys 
> for the company (inside and outside counsel) and officers of the 
> corporation are bound by a number of ethical and fiduciary rules 
> (depending on their position) that help ensure that they will operate 
> a) within the scope of their expertise in making legal allegations of 
> infringement and b) within the scope of their authority to legally 
> bind their companies to the limitations that the policy will require 
> for the use of the revealed data.
> What we are looking for is some documentation from the Trademark 
> Owner/Copyright Owner that consultants and others similarly have a) 
> the expertise to make the legal allegations of infringement, and b) 
> have the legal authority to bind Procter & Gamble and others to 
> limitations on the use of the revealed data once received.
> The half page authorization and delegation to the consultant on 
> letterhead from the Trademark Owner/Copyright Owner that I think Chris 
> Pelling spoke of today would probably complement Val's 
> self-attestation terms nicely. It does not have to be delivered to the 
> Provider and certainly not checked, verified or confirmed by the 
> Provider, but it should be available for audit. And again, applies to 
> those not bound by the other rules we have discussed...
> Best,
> Kathy
> :
>     Kathy, would you proposal below apply to law firms as well?  I
>     will let the other service providers speak for themselves, but I
>     really, really don’t think ICANN has any business attempting to
>     interfere in attorney/client relationships – that is clearly
>     outside of our scope and ICANN’s remit.
>     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>
>     Winston & Strawn LLP
>     *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 *Kathy
>     Kleiman
>     *Sent:* Tuesday, April 07, 2015 8:19 AM
>     *To:* gnso-ppsai-pdp-wg at icann.org <mailto:gnso-ppsai-pdp-wg at icann.org>
>     *Subject:* Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on
>     attestation
>     Tx Val,
>     Many of us think adding the statement you have drafted below would
>     be very useful.  Tx you! But still it does not get its hand around
>     our full concer. What we seek is not the self-declaration of the
>     Consultant, but the clear delegation of the Trademark/Copyright
>     Owner (e.g., Procter and Gamble). Where is the authorization?
>     James Gannon, our newest member, has been working on some language
>     that is perhaps a little long, and I am sure we can consolidate,
>     but creates a "Letter of Delegation of Authority for Reveal
>     Requests" that shows clearly that the Trademark/Copyright Owner at
>     the senior levels intended to delegate the authority for the legal
>     judgments of infringements being made, and the limitations on the
>     use of the revealed data being committed to. Provided to the
>     Provider and, if necessary, the Customer.
>     Here's the language. Best, Kathy
>     --------------------------------------------------------------------------------------------------------------------
>     In order to find a compromise between both sides of the aisle here
>     I suggest the following possible solution:
>     Policy Principle: Entities who issue requests pursuant to the
>     Policy must ensure they have the delegated authority to do so.
>     Where an entity requests a reveal of records and does not have the
>     written authority to do so, the entity is deemed to be in
>     non-compliance with the policy.
>     Detailed Policy Language for Principle:
>     The sitting corporate officers or general counsel of the requester
>     organization issues aLetter of Delegation ofAuthorityfor Reveal
>     Requests to be held directly by anyone to whom the Reveal Request
>     authority is delegated. This letter is separate to the general
>     delegation of agency to work on the holders behalf. This letter
>     would be specifically delegating the authority to issue Reveal
>     Requests to P/P Service Providers.
>     The letterwouldinclude the following provisions:
>     - Confirming and warranting the authorization of the delegator to
>     appoint a delegate as an sitting Officer or General Counsel of the
>     company or entity in question.
>     - Specifying the nature of the delegation and the subject to whom
>     the delegation is being given.
>     - For each individual that the delegation of authority applies, a
>     letter so delegating that authority to the individual, by name,
>     will be prepared.  This letter will specify that the delegation is
>     specific to the process for requesting reveals of personal and
>     potentially private and sensitive information of individuals,
>     organizations and companies.
>     - Affirming the authority and expertise of the delegated party to
>     render legal judgements on trademark and copyright infringements.
>     - Clearly and directly affirming the commitment of the delegating
>     organization or company to be bound by the limits of the use of
>     the Revealed Data as set out in the ICANN policy now and as it
>     might be modified in the future, and consistent with the laws of
>     the jurisdiction in which the Proxy/Privacy Service Provider is
>     incorporated.
>     - Delegating Organization or Company expressly agrees to be
>     answerable for any challenges that arise by virtue of the
>     Delegatee's actions in preparing and responding to Reveal
>     Requests, and the Delegatee's handling of the Revealed Data, and
>     agrees to be bound to challenge, review and/or lawsuit in any
>     jurisdiction in which the Delegatee has agreed to be bound.
>     - Delegating Organization or Company consents Provide a copy of
>     this Letter of Delegated Authority for Reveal Requests as a part
>     of the Reveal Request process and as requested by the
>     Proxy/Privacy Service Provider.
>     ---
>     :
>         Dear all:
>         Following up on our productive discussion earlier this week,
>         we’d like to offer a suggestion to modify the “attestation”
>         provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a
>         statement by the requestor specifying his/her authority for
>         making the request, or basis for agency if he or she is not
>         the rights holder. For example: “Where the signatory is not
>         the rights holder, he/she must attest that he/she is an
>         authorized representative of the rights holder, capable and
>         qualified to evaluate and address the matters involved in this
>         request, and having the authority to make the representations
>         and claims on behalf of the rights holder in the request.”
>         We could even spell out the statement for the signatory to
>         make in conjunction with each request : “I attest that I am
>         the rights holder / authorized representative of the rights
>         holder, capable and qualified to evaluate and address the
>         matters involved in this request, and have the authority to
>         make the representations and claims in this request.”
>         These statements of authority and agency are to be made in
>         good faith, under the penalty of perjury – just like
>         representations forming the basis for the request and the
>         requestor’s promise to use the data disclosed only for limited
>         enumerated purposes – and the falsity of these statements
>         would be redressable by the method(s) we agree on.
>         We believe this approach fairly balances the considerations
>         expressed by various WG members and look forward to your thoughts.
>         Best,
>         Val
>         *Valeriya  Sherman
>         <http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> |**Attorney
>         at Law*
>         202-973-2611 /phone/
>         202-263-4326 /fax/
>         /www.sgrlaw.com <http://www.sgrlaw.com>//
>         /vsherman at sgrlaw.com <mailto:vsherman at sgrlaw.com>//
>         1055 Thomas Jefferson Street, N.W.
>         Suite 400
>         Washington, D.C. 20007
>         /Ms. Sherman's practice is limited to matters before federal
>         courts and before the United States Patent and Trademark Office.//
>         /She is not admitted in the District of Columbia.//
>         *<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP *
>         ------------------------------------------------------------------------
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Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung.

Mit freundlichen Grüßen,

Volker A. Greimann
- Rechtsabteilung -

Key-Systems GmbH
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