[Gnso-ppsai-pdp-wg] Three additional considerations
Kathy Kleiman
kathy at kathykleiman.com
Sun Mar 8 14:41:30 UTC 2015
Dear All,
We deeply appreciate the discussion of this past week and look forward
to the discussion this week. It looks like good progress has been made
on the issues of default and communications with Providers. Tx you!
There are, however, a few additional issues that need to be addressed,
some gaps in this important Reveal text. The purpose of this email is to
highlight the gaps and some solutions to them.
1) The tough questions.
We are deeply concerned about the most difficult questions that will
pass through this Reveal process - the ones in which copyright and
trademark allegations are being used to stifle criticism and speech. The
ones in which hard standards are being taken against political
corruption, in favor of persecuted and minority political, religious,
ethic and sexual expression, and in which news ideas, concepts and
concerns are being shared that threatened the establishment, the
incumbents, the powerful.
These cases to not happen everyday, but when they do, these cases work
with vital freedom of expression, free speech & competition issues.
Revealing the identity of such speakers could not only suppress the
speech to which they are entitled, but expose protected addresses and
locations of political, religious, ethnic and sexual minorities to
harassment or worse. Several in our WG have used the Church of
Scientology example because anyone who posts their materials (however
small the snippet) faces criticism as a "copyright infringer" and the
wrath of a well-funded entity. Many large business seek to squelch young
competitors with "trademark infringement" allegations even in the
countries where competition allows the direct naming and critiquing of
your competitor's products and services. Wendy Seltzer set up the
"Chilling Effects" database years ago expressly for these letters and
this concern...
What we gather from Providers is that these Reveal Requests are
difficult and expensive to process -- that there is significant cost in
time and money to evaluate these questions closely. What we expect is
that even the best corporate counsel does not necessarily have a
specialty in areas of international Freedom of Expression rights, Free
Speech evaluations and international competition laws (and that's fair!)
So these cases take a lot of time to research (and $$$). Yet, these are
the questions in which minority speech, political expression, and
controversial ideas -- protected classes worldwide -- rests. We
respectfully request that it is not fair to ask Providers to incur the
costs of a Freedom of Expression investigation - but neither is it fair
to allow the rights of minority speakers, "fringe groups" and other
protected groups and individuals to go under-assessed or under-evaluated.
So for these tough and questions, and to make Providers' lives easier
and cheaper, we propose a safety valve: the creation of a group of
Freedom of Expression/Free Speech/Competition Attorneys (at least 1 from
each Region) to sit on a "Complex Case Advisory Group." Solely at the
Provider's discretion, a matter could be sent to this group for rapid
review -- and a response shared for the Provider's consideration.
Nothing binding. An outsourcing of the most difficult (and expensive)
problems for evaluation and input.
We are certain ICANN has the funds for this and should be willing to
support this advisory-only group. This would be an addition to Section
III, Service Provider Action on Request.
2) Appeals
What's good for the goose is good for the gander. Both groups should be
allowed to file appeals - both the Requestor whose request is turned
down and the Customer whose Reveal is granted over his/her/its
objections. In order to stop the floodgates of too many appeals, we
propose a "loser pays" system with a clear and specified deference (by
the decision-maker) to the Provider. We also propose that the body to
which this goes to be a neutral one with - with clear history and
expertise in Freedom of Expression, Intellectual Property and
Competition Law. Of course, this proceeding should, of course, be
completely online. (Additions to III.F)
3) Sanctions
We would like to see more discussion of this - what might be done to
prevent the frivolous or unfounded Requestors from continuing abusive
patterns within and across Providers. Frivolous requests are an undue
cost to the Provider and ones that put Customer into real frenzies of
work and response. While we continue to think hard about this matter, we
propose at this time a small addition to Section I(B) that would
expressly allow Providers to share among themselves information about
Requestors they feel are/have misused the system (such as vi: Nothing
shall prevent providers from sharing data...).
We look forward to the discussions this week. As the draft before us
took many weeks in its formation, we appreciate the time and opportunity
to evaluate it now -- with the full WG!
Best,
Kathy
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