[Gnso-ppsai-pdp-wg] A slightly revised proposed approach for reviewing public comments
Stephanie Perrin
stephanie.perrin at mail.utoronto.ca
Tue Jul 21 12:27:15 UTC 2015
So are you suggesting throwing them out? Because they dont understand
the complexity of what we are dealing with, and make a simple
recommendation that appears to be based on US law? If this is the case,
I respectfully suggest that this is dismissive of public comment, which
is the central point of my remarks below. If on the other hand, we
include the recommendation in our report, we could of course discuss the
pros and cons. I believe that would be the fair thing to do.
By the way, most of us are not law enforcement experts here, nor are we
jurisdictional experts. So while I raised of couple of examples of why
(2) was different and more problematic than (1), my goal was to
explicate the ways they were different, not to disqualify the comments
because they were not framed as a legal argument.
SP, always with the caveat that I am not a lawyer.
On 2015-07-21 8:15, Williams, Todd wrote:
>
> Thanks Stephanie. I don’t think we can re-interpret the comments to
> mean whatever we want them to mean. If they argued for a proposal for
> which we cannot reach consensus (either because the proposal won’t fly
> legally, for the reasons that you pointed out, or because it won’t fly
> economically, for the reasons that Volker pointed out), then I don’t
> think it’s our place to re-cast what they argued into something else,
> or try to divine their intent in order to “take their comments as an
> expression” of something else. I’m not even sure how we would do that.
>
> *From:*Stephanie Perrin [mailto:stephanie.perrin at mail.utoronto.ca]
> *Sent:* Tuesday, July 21, 2015 12:03 AM
> *To:* Williams, Todd; gnso-ppsai-pdp-wg at icann.org
> *Subject:* Re: [Gnso-ppsai-pdp-wg] A slightly revised proposed
> approach for reviewing public comments
>
> I dont hold the public to the same standards as, for instance, legal
> counsel who are there to assist me in legislative drafting. So I
> don't expect all the people who wrote in to understand that while in
> principle we should demand court orders, there are options for
> exigency. Neither should we expect them to understand the powers of,
> for instance, the French intelligence agencies.
> So what I am saying is, we should take their comments as an expression
> of strong preference for only releasing with proper legal authority,
> Does that sound fair?
> I don't think we have a right to question the substantive value of a
> comment....we have a responsibility to ensure we recommend what is
> legal and practical and affordable and fair.
> Long and convoluted answer to what was a simple question....my apologies.
> cheers SP
>
> On 2015-07-20 16:01, Williams, Todd wrote:
>
> Thanks Stephanie. Assuming that what you outlined below is
> accurate, I think that means that you and Volker have now
> identified two good reasons for us to question the substantive
> value of any comment arguing that “no one’s personal information
> should be revealed without a court order”:
>
> 1)Because such a standard is not economically feasible for P/P
> Providers, as Volker has pointed out; and
>
> 2)Because such a standard would not “fly” legally in some
> jurisdictions, as you’ve pointed out.
>
> Is that correct?
>
> *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
> *Stephanie Perrin
> *Sent:* Monday, July 20, 2015 1:25 PM
> *To:* gnso-ppsai-pdp-wg at icann.org <mailto:gnso-ppsai-pdp-wg at icann.org>
> *Subject:* Re: [Gnso-ppsai-pdp-wg] A slightly revised proposed
> approach for reviewing public comments
>
> Forgive me please is someone has already dissected this text. Lot
> of ICANN traffic these days....
> 1. a) ICANN should not implement policy that requires disclosure
> without a court order, or
> This means that ICANN should not develop a policy which requires a
> service provider to release information without a Court
> order....on a routine basis, the policy requires it. Seems clear
> enough. Violates national constitutional protections in some
> jurisdictions, I would argue.
>
> b) no disclosure should be allowed without a court order.
>
> Thiis on the other hand would require a policy that says, no
> disclosure may be made without a court order. First problem is
> that not all jurisdictions have court orders, some authorities
> (notably intelligence authorities) do not need a Court order for
> certain kinds of releases. This applies to many western
> democracies. In some jurisdictions, there are also urgency
> provisions, in the case of life and death etc. So this is an
> absolute prohibition against release without a Court order, which
> would not fly, for instance, in Canada. Last time I checked there
> were provisions in our privacy law to permit service providers to
> disclose info to the police voluntarily when they believed a crime
> was taking place....put there to facilitate the investigation of
> child pornography and copyright abuse.
> Stephanie Perrin
>
> On 2015-07-20 8:55, Williams, Todd wrote:
>
> Thanks James and Volker. I’m curious how you interpret the
> comments to get to (a) rather than (b). The language from
> many of the comments is “No one’s personal information should
> be revealed without a court order.” How is that not almost
> verbatim to (b)?
>
> *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
> *James Gannon
> *Sent:* Monday, July 20, 2015 6:50 AM
> *To:* Volker Greimann; gnso-ppsai-pdp-wg at icann.org
> <mailto:gnso-ppsai-pdp-wg at icann.org>
> *Subject:* Re: [Gnso-ppsai-pdp-wg] A slightly revised proposed
> approach for reviewing public comments
>
> Agreed Volker I would put my analysis in set A aswell.
>
> -James
>
> *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
> *Volker Greimann
> *Sent:* Monday, July 20, 2015 11:37 AM
> *To:* gnso-ppsai-pdp-wg at icann.org
> <mailto:gnso-ppsai-pdp-wg at icann.org>
> *Subject:* Re: [Gnso-ppsai-pdp-wg] A slightly revised proposed
> approach for reviewing public comments
>
> Hi Steve,
>
> these comments can be read in different ways:
>
> a) ICANN should not implement policy that requires disclosure
> without a court order, or
> b) no disclosure should be allowed without a court order.
>
> I tend to interpret the comments as being in the a) column.
>
> Best,
>
> Volker
>
> Am 17.07.2015 um 21:42 schrieb Metalitz, Steven:
>
> No, James, we should certainly consider those concerns but
> not necessarily change the report.
>
> The single concern raised more often than any other, I am
> positive, is that proxy services should not be permitted
> to disclose any information on their customer without a
> court order. That is not a standard that your service or
> any other that I know of can meet. We can change our
> report to make that a requirement for privacy/proxy
> service providers. Should we?
>
> Steve
>
> *From:*James M. Bladel [mailto:jbladel at godaddy.com]
> *Sent:* Friday, July 17, 2015 3:35 PM
> *To:* Metalitz, Steven
> *Cc:* Kathy Kleiman; gnso-ppsai-pdp-wg at icann.org
> <mailto:gnso-ppsai-pdp-wg at icann.org>
> *Subject:* Re: [Gnso-ppsai-pdp-wg] A slightly revised
> proposed approach for reviewing public comments
>
> Steve:
>
> With respect, if several thousand commenters raised issues
> that concern them, but are not addressed by our report,
> the our focus should be on changing the report, not
> discounting the comments.
>
> Thank you,
>
> J.
>
> ____________
>
> James Bladel
>
> GoDaddy
>
>
> On Jul 17, 2015, at 21:20, Metalitz, Steven <met at msk.com
> <mailto:met at msk.com>> wrote:
>
> I am all in favor of people identifying topics they
> believe need to be addressed by the WG. However,
> Kathy, I have to disagree with your premise, which is
> that the ten thousand plus comments reflect responses
> to our questions or even statements of agreement or
> disagreement to our consensus positions or report
> proposals. A much smaller (though still significant)
> number of comments do that, and those should be our
> top priority for review and response. But the vast
> majority of comments clearly are not responses to our
> report. These mass comments raise a very limited
> number of issues, which I don’t think we will that
> much difficulty dealing with once we have addressed
> the responses to our questions and the reasoned
> statements of agreement or disagreement with specific
> proposals we have made.
>
> Let’s get started on the more substantive comments,
> starting with the questions we did pose. We have
> subteams forming to start to tackle that, and the
> staff (and Graeme!) are providing some tools to try to
> help facilitate that. For those who don’t wish to
> join subteams, again, I agree it would be useful to
> identify (as you put it) the “major issues and
> concerns” that you find in the comments, with
> citations to those comments that you believe raise
> those major issues and concerns.
>
> Steve
>
> *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:* Thursday, July 16, 2015 6:34 PM
> *To:* gnso-ppsai-pdp-wg at icann.org
> <mailto:gnso-ppsai-pdp-wg at icann.org>
> *Subject:* [Gnso-ppsai-pdp-wg] A slightly revised
> proposed approach for reviewing public comments
>
> Hi Don, Steve, Graeme, Mary and all WG members,
> I would like recommend that we take a slightly
> different approach. We received over ten thousand
> comments, many coming from those who do not ordinarily
> participate in the ICANN process. They wrote to us us
> not only in response to our specific questions, but
> also to share agreement (and disagreement) to our
> consensus positions/report proposals, and to explain
> why proxy/privacy registrations are important to them.
> There has been a huge outpouring particularly on the
> last issue.
>
> While a few topics for cataloging these comments were
> presented on the call, with great respect, I do not
> think we have dealt with or cataloged all of the major
> issues and concerns raised by the comments yet. Before
> we leap forward to subteams and analysis, shouldn't we
> ask further, in writing, and with the whole of the WG
> participating -- have we gotten the topics right? Have
> we created sufficient topics to allow us to catalog
> the broad range of information, concerns and comments
> shared with us by so many commenters?
>
> I would like to request that we be able to take big
> breath, and a slightly (only slightly!) different
> approach. In preparation for Tuesday's call, could we
> all skim the comments -- with our array of expertise,
> insight, knowledge of aspects of our commenter base --
> to come up with topics that we think the WG should
> evaluate in tour review? Perhaps if we can circulate
> the topics online, and then discuss them on Tuesday.
>
> Then we discuss how these topics/this substance might
> be overlaid on the subteam process laid out below and
> shared for the first time on last week's call. We will
> then have both substance and process! And we will know
> that we have considered all of the major issues
> arising from these important comments.
>
> If we go forward now without this evaluation, I fear
> we may be missing much of what the comments have to offer.
>
> Best and tx,
> Kathy
>
>
> *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 *Mary Wong
>
>
>
>
> *Sent:*14 July 2015 23:50
> *To:* gnso-ppsai-pdp-wg at icann.org
> <mailto:gnso-ppsai-pdp-wg at icann.org>
> *Subject:* [Gnso-ppsai-pdp-wg] A proposed approach for
> reviewing public comments
>
> Dear WG members,
>
> Following from the WG call earlier today, the
> co-chairs and staff after some consultation would like
> to propose the following approach for your consideration:
>
> _1. Use of Sub Teams for Specific Topics_:
>
> * Sub-teams comprising a few WG volunteers each can
> be formed to do the initial review of public
> comments received on the three topics suggested by
> Steve on the call, i.e. (1) Section 1.3.2 of the
> Initial Report (on escalation of relay requests
> and the handling of disclosure/publication
> requests from third parties other than IP rights
> holders); (2) Section 1.3.3 (on the open question
> regarding online financial transactions); and (3)
> Annex E (the Illustrative Disclosure Framework).
> * To assist the WG evaluate the usefulness of sub
> teams, a sub team for Section 1.3.2 can be formed
> first and serve as a “test case” for the exercise.
> * As outlined on the call, a sub team will do a
> “first pass” through a template, based on the
> Public Comment Review Tool, that staff will
> populate with all the input received on that
> particular issue. The sub team will report back to
> the full WG in a timely fashion, including
> suggesting a WG response and/or proposed action in
> relation to the comments received.
> * Sub teams may elect to do their work via email and
> online tools (e.g. Google Docs or a wiki page),
> with or without supplemental conference calls. Any
> calls will be recorded and transcribed for
> transparency purposes, and drafts and other
> documents prepared using online tools will also be
> made available to the full WG. (Do note, however,
> that depending on call scheduling and timing,
> staff support may not be available for all
> requested calls if several sub teams are used
> concurrently.)
>
> *PLEASE VOLUNTEER FOR SUB TEAM 1.3.2 IF YOU ARE
> INTERESTED IN ASSISTING WITH THIS INITIAL REVIEW.
> *Staff will endeavor to provide the template tool for
> 1.3.2 to the sub team as soon as possible, hopefully
> by Monday.
>
> _2. Full WG Review of Other Comments to Continue in
> Parallel_:
>
> * Staff will “collapse” (per James’ suggestion on
> the call) all those template responses received
> that were simply a Yes or No answer to a question,
> without any further comment added – these will be
> reflected in the Public Comment Review Tool
> accordingly, as a single collective entry. The
> current Tool (covering Preliminary Recommendations
> 1 through 9) will be updated in time for the WG to
> begin this review on the next call.
>
> _3. Collated Information_:
>
> * In addition to the updated spreadsheet just
> circulated by Graeme, we can also send you
> archived mail files of the contributions received
> to the public comment forum, should you or your
> group wish to conduct searches through each
> comment yourselves.
>
> We hope the above will be helpful in facilitating good
> progress on the work to be done in preparation for the
> Final Report.
>
> Thanks and cheers
>
> Mary
>
> Mary Wong
>
> Senior Policy Director
>
> Internet Corporation for Assigned Names & Numbers (ICANN)
>
> Telephone: +1 603 574 4889
>
> Email: mary.wong at icann.org <mailto:mary.wong at icann.org>
>
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> --
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> Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung.
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>
> Mit freundlichen Grüßen,
>
>
>
> Volker A. Greimann
>
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