[Gnso-ppsai-pdp-wg] Three additional considerations

Don M. Blumenthal dmb at donblumenthal.com
Mon Mar 9 02:06:45 UTC 2015

Thanks, Kathy.

I have some possibilities in mind but, for clarity, can you give an idea
of who "we" refers to?



On 3/8/2015 10:41 AM, Kathy Kleiman wrote:
> 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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