[Gnso-ppsai-pdp-wg] Updated document re disclosure standards - some comments and concerns

Stephanie Perrin stephanie.perrin at mail.utoronto.ca
Tue Mar 3 02:25:18 UTC 2015

Well said.  Looking forward to the discussion tomorrow.
Stephanie Perrin

On 2015-03-02 20:20, Holly Raiche wrote:
> First -a big thanks to Kathy for the comments.  Next, a big thanks to 
> Steve and Graeme for the paper.  Between both inputs, there is both 
> plenty to discuss, but possible avenues for ways forward in what are 
> thorny issues for all of us
> Holly
> On 3 Mar 2015, at 9:59 am, Kathy Kleiman <Kathy at kathykleiman.com 
> <mailto:Kathy at kathykleiman.com>> wrote:
>> Hi All,
>> First, thank you, Steve, Graeme and All. I know a lot of people have 
>> spent a lot of time in the IP and Registrar Communities working on 
>> this draft. Tx you – and appreciate your invitation to comments and 
>> concerns!
>> I have reviewed the Draft carefully and have some initial comments to 
>> share.Although I spoke with people in the WG while preparing them, 
>> these comments are my own.(If there is problem with the formatting 
>> below, please let me know.)
>> 1.General Comments
>> a.`Let’s make the wording more neutral. Let’s add “alleged” or 
>> “claimed” in all references of infringement (e.g., trademarks, 
>> copyrights of domain names/websites. Another good term would be 
>> “claimed infringement” -- which is the one used in similar sections 
>> of the Digital Millennium Copyright Act to the sections we are 
>> working on here.
>> 2.More substantive comments
>> a.Are we missing levels of protections for the Customer/Registrant?In 
>> the Digital Millennium Copyright Act (DMCA), there were two levels of 
>> protections for the “users.”
>> i.The first was sanctions for misrepresentation. Basically, any 
>> company which knowingly materially misrepresents that material or 
>> activity is infringing is liable for damages, including costs and 
>> attorney fees caused from injury resulting from the 
>> misrepresentation. Don’t we need similar sanctions here?
>> ii.A much higher bar for revealing the identity of the alleged 
>> infringer. The DMCA allows rapid takedown based on statements very 
>> similar to the one we proposing, but Reveal is a whole different 
>> story.The standard is much higher and goes through Court. Thus US 
>> Copyright Code, Sec 512(h), requires a subpoena to reveal data:
>> `(1) REQUEST- A copyright owner or a person authorized to act on the 
>> owner's behalf may request the clerk of any United States district 
>> court to issue a subpoena to a service provider for identification of 
>> an alleged infringer in accordance with this subsection…
>> Shouldn’t we have a higher standard too?It seems important to balance 
>> the rights of both sides, including whether the Allegation of 
>> Illegality sufficiently outweighs the Privacy Interests and Rights of 
>> the Battered Women’s Shelter, Online Magazine or Bloggers posting 
>> unpopular views of corruption.
>> iii.A deep concern about default. As I read the rules, if you don’t 
>> respond, you lose and your data is revealed.But this is a problem 
>> because we can think of many reasons why Customers/Registrants would 
>> not respond. For example:
>> a.Request came at the beginning of August,
>> b.Request disappeared into spam;
>> c.Registrant/Customer is unable to respond (perhaps language 
>> barriers); and/or
>> d.Registrant/Customer is scared to respond.
>> 2.I would submit that in something as important as revealing identity 
>> and physical locations, there should be no automatic default. It is 
>> completely possible that a) the allegations are incorrect on their 
>> face (no jurisdictional overlap, for example), or b) that there are 
>> clear defenses on “its face,” e.g., on the website.
>> Thus, an anti-bullying group may post the copyrighted logo of a gang 
>> engaging in bullying (or worse) in a local school or neighborhood; is 
>> so, the gang’s allegation of copyright infringement could be clearly 
>> weighed against the “safe neighborhoods for all” activity taking 
>> place on the website.
>> Similarly, an online publication in Europe may have every right to 
>> use the logo and trademark of a large multinational it is 
>> criticizing, or the image of Mohammed, without having its identity 
>> and address revealed without due process.
>> Ditto for a battered women’s shelter posting a copyright logo, motto 
>> or design and urging women to watch for it and those bearing it.
>> Due process is not automatic default, but a full and fair review of 
>> the website and other reachable information, even if the 
>> Customer/Registrant is unable to respond for herself or himself.
>> 3.Option: we might consider Third Party or Independent Review. This 
>> is something that Steve and Graeme’s draft have already suggested for 
>> rejections of IP Owner Requests. It could serve Customers too by 
>> creating a review of default situations – or perhaps an independent 
>> forum for Service Providers who choose to outsource this difficult 
>> evaluation.
>> iv.Privacy of communication between Customers and their Providers . 
>> The rules of Section III(A) seem to bar private communication with 
>> your Provider. Everything a Customer/Registrant might write to their 
>> Provider must be passed on verbatim (if I read this correctly).But 
>> that’s a problem for those with English as a second language (or 
>> third) or those without lawyers, and those simply trying to explain 
>> in clear and informal language to explain this situation. 0What will 
>> happen, I am concerned, is that whatever informal response a Customer 
>> provides to its Provider will operate (unintended) as an Admission 
>> Against Interest or an unintended Waiver.
>> Further, the Customer/Registrant might inadvertently reveal a bit 
>> about their identity or even location – trying to explain their 
>> position clearly to the Provider – and this should not be passed on 
>> to the Requester automatically either. I am not sure of th answer 
>> here as IP Owners should know something about the response, but not 
>> necessarily the full communication of the Customer (e.g., he is 
>> stalking me).
>> Thanks for reading!
>> Best,
>> Kathy
>> On 3/2/2015 9:54 AM, Metalitz, Steven wrote:
>>> PPSAI WG members,
>>> Attached please find an updated version of the document Graeme and I 
>>> circulated prior to last week’s meeting.  This updated version 
>>> includes three or four wording tweaks, intended to reflect the 
>>> discussion on last week’s call.  Looking forward to further 
>>> discussion on tomorrow’s call.
>>> Steve Metalitz
>>> *From:*<Metalitz>, Steven <met at msk.com <mailto:met at msk.com>>
>>> *Date:*Monday, February 23, 2015 at 11:57
>>> *To:*"'PPSAI (gnso-ppsai-pdp-wg at icann.org 
>>> <mailto:gnso-ppsai-pdp-wg at icann.org>)'" <gnso-ppsai-pdp-wg at icann.org 
>>> <mailto:gnso-ppsai-pdp-wg at icann.org>>
>>> *Subject:*Re: [Gnso-ppsai-pdp-wg] Category F -- updated status 
>>> report and text for discussion
>>>     PPSAI WG members,
>>>     This follows up on our note of Feb. 3 providing a status report
>>>     on subgroup  discussions among some IP interests and p/p service
>>>     providers regarding p/p disclosure standards.  To reiterate, the
>>>     group’s work is not meant to obviate or displace the work of the
>>>     larger PPSAI WG on this issue – rather, it is meant to
>>>     constructively contribute to the discussion by producing one
>>>     proposal on this issue for the larger group’s consideration.
>>>     In light of further consideration and of the need to move
>>>     forward the WG discussion on Category F, we present the attached
>>>     document that we hope will help provide a framework for
>>>     discussion of the disclosure issue in the WG.  We emphasize that
>>>     this is not a proposal from IPC, the Registrar Stakeholder
>>>     Group, or any subset of either, and that we fully anticipate the
>>>     text to be modified and improved through further discussion at
>>>     the WG level. (We also acknowledge that the WG may find the
>>>     proposal wholly unsatisfactory but hope that it will at least
>>>     help advance debate.)
>>>     The attached is put forward as a starting point, to use
>>>     intellectual property infringement complaints as one
>>>     illustrative example of minimum disclosure standards, in a
>>>     framework that addresses  (1) a service provider process for
>>>     intake of requests; (2) general templates that requests would
>>>     have to meet in order to trigger service provider action; and
>>>     (3) principles governing service provider action in response to
>>>     a conforming request.
>>>     We look forward to the discussion of this document among WG
>>>     members.
>>>     Graeme Bunton
>>>     Steve Metalitz
>>>     *From:*Metalitz, Steven
>>>     *Sent:*Tuesday, February 03, 2015 3:57 PM
>>>     *To:*PPSAI (gnso-ppsai-pdp-wg at icann.org
>>>     <mailto:gnso-ppsai-pdp-wg at icann.org>)
>>>     *Subject:*Category F -- status report
>>>     Dear WG colleagues,
>>>     As you know, several PPSAI Working Group members, including
>>>     representatives of the IPC and privacy and proxy service
>>>     providers, have endeavored to develop a collaborative proposal
>>>     on the minimum standards for disclosure (Category F). The
>>>     group’s work is not meant to obviate or displace the work of the
>>>     larger group on this issue – rather, it is meant to
>>>     constructively contribute to the discussion by producing one
>>>     proposal on this issue for the larger group’s consideration.
>>>     This is an update on this sub-group’s progress.
>>>     But first, a little background: At the face-to-face meeting of
>>>     the PPSAI Working Group in Los Angeles on October 10, 2014, one
>>>     important topic was minimum standards for disclosure of contact
>>>     information of customers of privacy/proxy services who may or
>>>     may not be using their private domain name registrations to
>>>     carry out infringing or other abusive activities.
>>>     Prior to the face-to-face meeting, IPC participants in the
>>>     Working Group circulated a proposal on this topic.  A responsive
>>>     redline was circulated to the WG by Volker Greimann.
>>>     Following extensive discussion of these proposals and of the
>>>     topic in general at the face-to-face meeting, a sub-group of WG
>>>     participants have continued this discussion.  The sub-group
>>>     includes participants from the IPC and privacy/proxy service
>>>     providers. Meeting by teleconference and working over e-mail,
>>>     the sub-group has sought to develop a text that could be jointly
>>>     presented to the PPSAI Working Group as a framework for further
>>>     discussion on the issue of standards for disclosure.
>>>     Some progress has been made, and the sub-group is continuing its
>>>     efforts with the goal of producing a document for presentation
>>>     to the PPSAI Working Group as soon after the Singapore ICANN
>>>     meeting as feasible.  If such a document is completed, it is
>>>     hoped that it would be a constructive contribution to eventual
>>>     WG approval of a set of recommendations on “Category F” for
>>>     inclusion in the Draft Report of the WG.
>>>     Unlike the documents discussed by the full WG last October, the
>>>     framework under discussion does not purport to establish a
>>>     single general policy for when disclosure of contact information
>>>     in cases of alleged abusive activities would be available.
>>>     Instead, it seeks to focus more narrowly on intellectual
>>>     property infringement complaints as one illustrative example of
>>>     minimum disclosure standards.  The framework would describe (1)
>>>     a service provider process for intake of requests; (2) general
>>>     templates that requests would have to meet in order to trigger
>>>     service provider action; and (3) principles governing service
>>>     provider action in response to a conforming request.  While
>>>     considerable progress has been made in the first two areas, a
>>>     number of critical issues remain to be resolved in the third
>>>     area, and discussion has not been concluded on any of the areas.
>>>     The expressed common goal of the discussion group participants
>>>     is a framework that would give requestors a higher degree of
>>>     certainty and predictability as to if, when and how they could
>>>     obtain what level of disclosure; that would preserve for service
>>>     providers a sufficient degree of flexibility and discretion in
>>>     acting upon requests for disclosure; and that would include
>>>     reasonable safeguards and procedures to protect the legitimate
>>>     interests of customers of accredited proxy/privacy service
>>>     providers.  Of course, balancing these interests is the
>>>     difficult task before our working group. As stated, participants
>>>     in the discussion group hope to be able to make a constructive
>>>     contribution to the WG’s efforts to do so.
>>>     Graeme Bunton
>>>     Steve Metalitz
>>> _______________________________________________
>>> Gnso-ppsai-pdp-wg mailing list
>>> Gnso-ppsai-pdp-wg at icann.org
>>> https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
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