[Gnso-ppsai-pdp-wg] Revised Reveal Doc

Kathy Kleiman kathy at kathykleiman.com
Sun Mar 29 14:51:30 UTC 2015

I agree fully with Stephanie here, and note the more experienced the 
Requestor/attorney, the less work the Provider has to do.  As Law 
Enforcement officers are bound by law to requirements in their 
representations in warrants, subpoenas and these upcoming Reveal 
Requests, so too are Attorneys bound by duties in representing the 
clients, being honest in their representations, and frankly being expert 
in the area of law in which they are working (e.g., you would not want 
me making representations/attorney as an attorney for clients with 
employment health and safety concerns -- as this is far outside my area 
of practice under US laws; IP infringement claims are another matter... ).

A legal commentator wrote on legal ethics: "The principle of honesty 
governs the attorney in all forms of representation."

It will help all of our work if the Reveal Request is not made through a 
consultant, a secretary, clerk or computer-generated-letter. The Request 
as we have now proposed it will come from someone charged with knowing 
the facts, law and limitations of the alleged infringement and reveal 
request rules-- and that someone will be charged and entrusted with the 
information Revealed, if at the end of the review, it is appropriate to 
do so.

This should make life easier for the Provider - not harder -- reduce the 
need for parity and increase the speed of evaluation. It raises the 
level of trust all round - and with personal/sensitive data, and that's key.

Looking forward to our call on Tuesday!

> I don't believe there really is a requirement for parity here Susan.  
> The onus is on the requestor, who is seeking to avoid a more formal 
> legal process, to prove that the claim is legitimate, and that it is 
> being advanced by someone with legal authority.  If I may once again 
> compare to revealing personal information in a government 
> setting....if we release information for a lawful investigation, the 
> investigating party has to be a police officer.  The persons who 
> process the request do not have to be equivalent levels, they have to 
> ensure that the form is filled in and signed by a legitimate 
> investigating authority, they have to get a badge number, name, 
> signature and the nature of the investigation.  For "slam dunk" cases, 
> there is probably no need to have a legal authority on the registrars 
> side authorize release, but I would hope for complex cases that the 
> matter would be elevated to a senior level.  If not, a customer might 
> have a good argument in a lawsuit.
> I think we need to remember that this is the first time this matter 
> has been dealt with in policy (ie regulated).  Just because it is not 
> required now, does not mean that the situation should persist, any 
> more than ignoring requests should be permitted any more. Of course if 
> I am in error here, and it has been dealt with in policy prior to our 
> current efforts, I would be delighted to hear about it.
> Stephanie Perrin
> On 2015-03-24 2:38, Susan Kawaguchi wrote:
>> Well if we are going to raise the level of the requester to attorney 
>> or VP, principal etc.  then we should also require that anyone 
>> reviewing the request on behalf of the proxy service provider be of 
>> the same level.  This doesn’t make any sense to me and it is not 
>> scalable in my opinion but let’s at least give it equal weight.  IF 
>> the service providers agree to only let a principal, VP or attorney 
>> review the requests then I may be fine with the requirement.
>> I did not understand Kathy’s proposal to include a “trusted 
>> requestor” status.
>> Susan Kawaguchi
>> Domain Name Manager
>> Facebook Legal Dept.
>> Phone - 650 485-6064
>> From: Stephanie Perrin <stephanie.perrin at mail.utoronto.ca 
>> <mailto:stephanie.perrin at mail.utoronto.ca>>
>> Date: Monday, March 23, 2015 at 8:10 PM
>> To: "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>>, Susan Kawaguchi <susank at fb.com 
>> <mailto:susank at fb.com>>
>> Subject: Re: [Gnso-ppsai-pdp-wg] Revised Reveal Doc
>> Susan, you do represent one of the biggest Internet companies in the 
>> world, so surely you are not typical :-) I am sure you would be 
>> identified as a "trusted requestor" very quickly. ...but is it not 
>> possible for other less distinguishable requestors to get a letter of 
>> delegated authority that authorizes them to act for the company? 
>> These are indeed serious allegations that are being made, it is 
>> reasonable to ask who is making them and under what authority.
>> For what it is worth, in government where I have worked, the 
>> authority to release personal information to law enforcement under a 
>> request without a warrant is managed by a delegated authority from 
>> the Minister....and it is held at a high level.  It does seem only 
>> logical that a request to a service provider to forsake their 
>> obligations to their customer in favour of an outside requestor, 
>> based on unproven allegations,  should be at a senior level.
>> Just my 2cents worth, I don't work in this area but I would certainly 
>> expect us to be setting in place a process that could stand up to the 
>> closest scrutiny.
>> Cheers Stephanie
>> On 2015-03-23 19:40, Susan Kawaguchi wrote:
>>> Hi Kathy,
>>> I am not comfortable with this language.  I can¹t even imagine asking a
>>> VP, General Partner or Principal to make this request.   I am not an
>>> attorney so it would leave me out of the process completely and I
>>> understand the current process.  This is to limiting and as most companies
>>> do we rely on third parties to assist in the enforcement which doesn¹t
>>> always include attorneys.  But they rely on clear instructions from the
>>> trademark owner to make a claim.  Looking forward to the robust discussion
>>> tomorrow.
>>> Signatory¹s name and legal relationship to the trademark
>>> owner. Signatories shall be limited to those with ³first-hand² knowledge
>>> of the
>>> alleged infringement: ³Owner² (if trademark owned by individual),
>>> ³President,²
>>> ³Vice President,² ³General Partner² or ³Principal² (if trademark owned by
>>> legal
>>> entity)  or ³Attorney² with country and
>>> state/provice/region of attorney¹s bar membership (if legal representative
>>> appointed by trademark owner)
>>> Susan Kawaguchi
>>> Domain Name Manager
>>> Facebook Legal Dept.
>>> Phone - 650 485-6064
>>> On 3/23/15, 3:08 PM, "Kathy Kleiman"<kathy at kathykleiman.com>  wrote:
>>>> Hi Kiran,
>>>> Thank you for your comments. The agency issue worries some of us
>>>> greatly.  By what authority is the "agency" established; what actual
>>>> knowledge of the a) trademark or copyright owner's rights are there, b)
>>>> by what expertise can he/she make an assessment of infringement and c)
>>>> by what right, ability or authority can the signatory bind the trademark
>>>> or copyright owner to the allegations being made.
>>>> I should note that the proposed changes follow the DMCA: for a Reveal
>>>> Subpoena, the request must be done by an attorney for the Requester or
>>>> by the Requester himself/herself/itself (in the US we call it "pro se").
>>>> Best,
>>>> Kathy
>>>> :
>>>>> Hi Kathy,
>>>>> Thanks for forwarding this to the group, and special thanks for
>>>>> forwarding with enough time to review before the call!
>>>>> We can certainly discuss in more depth on the call tomorrow, but I am
>>>>> not a fan of the changes in Section II.  I'm concerned about the level
>>>>> of minutiae in the language, and I'm wondering how and why that level of
>>>>> micromanagement will be helpful/probative information to the Service
>>>>> Provider.  In very large companies, the trademark
>>>>> owner/president/VP/partner, etc. isn't actually involved directly in the
>>>>> enforcement activity.  It should be enough to demonstrate agency, as the
>>>>> previous language did.
>>>>> Perhaps I will have more later, but I wanted to float that to the group
>>>>> before the call.
>>>>> Thanks,
>>>>> Kiran
>>>>> Kiran Malancharuvil
>>>>> Policy Counselor
>>>>> MarkMonitor
>>>>> 415.222.8318 (t)
>>>>> 415.419.9138 (m)
>>>>> www.markmonitor.com
>>>>> -----Original Message-----
>>>>> From:gnso-ppsai-pdp-wg-bounces at icann.org
>>>>> [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] On Behalf Of Kathy Kleiman
>>>>> Sent: Sunday, March 22, 2015 11:19 AM
>>>>> To:gnso-ppsai-pdp-wg at icann.org; Metalitz, Steven; Graeme Bunton
>>>>> Subject: [Gnso-ppsai-pdp-wg] Revised Reveal Doc
>>>>> Hi All,
>>>>> Steve and I talked on Friday, and he asked me to circulate a Revised
>>>>> Reveal document -- which is attached.  This document has three types of
>>>>> changes based on our discussion last Tuesday and subsequent research:
>>>>> 1. To the title (reset pending further discussion) 2. To Section II,
>>>>> the Request Templates to clarify the requester and his/her direct
>>>>> knowledge of the alleged infringement and legal authority to represent
>>>>> the Requester, and 3. Annex (reset to original pending discussion with
>>>>> drafters over the narrow goals and intents of this section)
>>>>> All other edits remain - to continue our excellent discussion of high
>>>>> standards for disclosure, human rights issues, etc. There is also much
>>>>> to discuss regarding follow-up processes (after the Request) including
>>>>> a) when are appeals allowed and for whom, and b) how does a Provider
>>>>> challenge an alleged "wrongful disclosure" of its Customer's information?
>>>>> Best and have a good rest of weekend,
>>>>> Kathy
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