[Gdd-gnso-ppsai-impl] Materials, action items from 17 Oct Privacy/Proxy IRT call

Thu Nov 30 22:16:13 UTC 2017

PPSAI colleagues,
I offer the following comments and suggested edits regarding the Oct. 20 redline version of the PPAA.  I may have a few other suggestions by tomorrow’s deadline, and will definitely have responses later to some of the other proposed edits that have been sent to the list.  (And thanks to Theo and colleagues for their comprehensive review of the document!)
First, I would reiterate the suggestions made in my Oct. 21 posting to the list, as follows:
Subsection 3.5.3.15: strike “should” and insert “shall,” for consistency with parallel provisions throughout this section 3.5.
Section 3.7, third line from the bottom:  “employee” should be “employ.”
Section 3.17.1:  I suggest adding the words “as applicable” or “to the extent applicable” at the end of the section.  Not every Disclosure or Publication request that Provider receives will fall under the IP or LEA disclosure frameworks.
Section 5.7.3:  the notice that the suspended Provider must send to customers should specify “that it is unable to offer or provide the Services for any new registrations” (adding the last 4 words).  A suspended Provider can (and indeed must) provide the Services to its current customers.  [Note that the phrasing “any additional registrations” might be more accurate here, and in the corresponding provision of 5.7.1 --- otherwise it might be possible for a suspended provider to being providing services for the first time to an existing registration whose registrant decides to engage a service.]
Here are some additional suggestions:
Section 1.43:  strike “comprising the Working Group,” insert “representatives of the Service Providers.”  This issue is noted on page 2 of the Discussion Items document.
Section 3.5.3.3: since this has to do with p/p services and not with registration per se, the references to “initial registration and each renewal registration” should be changed to something like “each initial agreement to provide Services and each renewal or extension of such agreement.”  I believe this is also responsive to Theo’s sticky note on the RrSG redline for this section.
Section 3.8.1 (specifying what needs to be stated on request forms) should include a cross-reference to section 3.8.2 (requiring publication of links to request forms in some circumstances). Alternatively, perhaps the order of these two sections should be reversed.
Section 3.8.5.5 needs some rephrasing.  Reveal is not a defined term in the PPAA, and the provider does not itself Publish data in the RDS (the registrar or registry does that), but can cause it to be Published.  This may a rare instance in which use of the passive voice may be preferable (“the circumstances under which the Customer’s identity or contact data will be published in the RDDS….”).
Section 3.19:  substitute “shall” for “should.”  In fact the entire document should be reviewed to see where this change is needed.
Section 5.3:  this is another issue I raised in my Oct. 21 posting:  “Section 5.3 does not give ICANN the right to substitute the new version of the agreement, it gives that right to the provider.  Furthermore, 5.3 addresses the scenario  in which the new agreement is swapped in during the term of the current agreement.  The point I was trying to raise on the call (and I am sorry if this was not clear) is ensuring that all renewals of the agreement at the end of the term reflect the most recent version.   As currently drafted, section 5.2 seems to give the provider the option of renewing under the terms of the old agreement (“under the terms and conditions of this agreement”), even if it has been superseded by a new form of agreement that is materially different.  This could be fixed by  adding a subsection 5.2.5 along the following lines: ‘5.2.5:  this Agreement has been superseded by a revised form accreditation agreement for the provision of the Services (“Updated PPAA”) that is materially different from this Agreement, in which case the right of renewal provided by this section shall be under the terms and conditions of the Updated PPAA.’”
Section 5.7.4:  consider inserting at the end of the first sentence “or its invocation of section 5.5.7,” which is another path ICANN could take to deal with the situation of an uncured “endangerment” scenario.
Section 7.4.1:  shouldn’t the Working Group be the party to receive the notice re revision of the Agreement?  This would be consistent with the rest of section 7.4.
 Glad to try to answer any questions about these.
Steve Metalitz

[image001]
Steven J. Metalitz | Partner, through his professional corporation
T: 202.355.7902 | met at msk.com<mailto:met at msk.com>
Mitchell Silberberg & Knupp LLP | www.msk.com<http://www.msk.com/>
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From: Metalitz, Steven
Sent: Tuesday, November 07, 2017 11:42 AM
To: 'Sara Bockey'; Darcy Southwell; gdd-gnso-ppsai-impl at icann.org
Subject: RE: [Gdd-gnso-ppsai-impl] Materials, action items from 17 Oct Privacy/Proxy IRT call

I agree with a lot of what Darcy says.  Let me make sure my view is clearly stated.

Most of the items Darcy identifies are completely appropriate for discussion in our team before the documents are finalized.  These issues include:  perceived discrepancies between the WG Final Report and the implementation documents; loose ends in the Law Enforcement disclosure framework; and clarifying the status of each of the four documents under review.  I support addressing these points on our next call so that we can continue to make progress.  And based on the postings made to our list over the last couple of weeks, I would certainly be comfortable with some relaxation of the deadline for proposing edits to the accreditation agreement – if necessary, to December 1.

My concerns are focused primarily on the suggestion that we can’t move forward until we determine whether our recommendations are GDPR-compliant.  To me that sounds like some on the IRT want to suspend work until ICANN’s separate work on GDPR is concluded.  If that is not what is meant, then I would ask proponents of that view to clarify just how they think we should proceed at this point.

I am also sad to see the IRTP-C issue brought up again.  I thought we had reached agreement that the current suspension of ICANN enforcement of this aspect of that policy could be continued until an appropriate group is formed to address it; or put another way, that we could proceed to get our PPSAI implementation plan out for public comment without delaying it until the IRTP-C issue is resolved.  That is my recollection, anyway, but if I am mistaken then please show me how.

Finally I will repeat my question of whether our call time on 11/14 remains at 1400 UTC or whether it will  be moved an hour later to preserve the usual start time in most Northern Hemisphere time zones.

Steve

[image001]
Steven J. Metalitz | Partner, through his professional corporation
T: 202.355.7902 | met at msk.com<mailto:met at msk.com>
Mitchell Silberberg & Knupp LLP | www.msk.com<http://www.msk.com/>
1818 N Street NW, 8th Floor, Washington, DC 20036

THE INFORMATION CONTAINED IN THIS E-MAIL MESSAGE IS INTENDED ONLY FOR THE PERSONAL AND CONFIDENTIAL USE OF THE DESIGNATED RECIPIENTS. THIS MESSAGE MAY BE AN ATTORNEY-CLIENT COMMUNICATION, AND AS SUCH IS PRIVILEGED AND CONFIDENTIAL. IF THE READER OF THIS MESSAGE IS NOT AN INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY REVIEW, USE, DISSEMINATION, FORWARDING OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED. PLEASE NOTIFY US IMMEDIATELY BY REPLY E-MAIL OR TELEPHONE, AND DELETE THE ORIGINAL MESSAGE AND ALL ATTACHMENTS FROM YOUR SYSTEM. THANK YOU.

From: Sara Bockey [mailto:sbockey at godaddy.com]
Sent: Tuesday, November 07, 2017 11:07 AM
To: Darcy Southwell; gdd-gnso-ppsai-impl at icann.org<mailto:gdd-gnso-ppsai-impl at icann.org>; Metalitz, Steven
Cc: Sara Bockey
Subject: Re: [Gdd-gnso-ppsai-impl] Materials, action items from 17 Oct Privacy/Proxy IRT call

Well said, Darcy.  Agree 100%.

sara bockey
sr. policy manager | GoDaddy™
sbockey at godaddy.com<mailto:sbockey at godaddy.com>  480-366-3616
skype: sbockey

This email message and any attachments hereto is intended for use only by the addressee(s) named herein and may contain confidential information. If you have received this email in error, please immediately notify the sender and permanently delete the original and any copy of this message and its attachments.

From: Darcy Southwell <darcy.southwell at endurance.com<mailto:darcy.southwell at endurance.com>>
Date: Tuesday, November 7, 2017 at 8:47 AM
To: "gdd-gnso-ppsai-impl at icann.org<mailto:gdd-gnso-ppsai-impl at icann.org>" <gdd-gnso-ppsai-impl at icann.org<mailto:gdd-gnso-ppsai-impl at icann.org>>, "Metalitz, Steven" <met at msk.com<mailto:met at msk.com>>, Sara Bockey <sbockey at godaddy.com<mailto:sbockey at godaddy.com>>
Subject: Re: [Gdd-gnso-ppsai-impl] Materials, action items from 17 Oct Privacy/Proxy IRT call

I agree with Theo.  The scope has changed and implementation is impacted by GDPR.  While I appreciate that Steve wants to move forward expeditiously, I don’t believe we can do so without jeopardizing the creation of an effective program.  Further, in just the last week or so, issues have been raised about implementation language contradicting the policy.  The role of an IRT is to implement the consensus policy produced in the PDP and we need to spend sufficient time reviewing and discussing the implementation to ensure we’re not changing policy.  Similarly, I think there were questions raised about the proposed framework Public Safety Working Group. In addition to policy creep, I believe concerns were expressed that staff failed to modify the proposed framework based on the feedback from IRT participants.  Rather than picking through the documents line by line, it seems like we should step back and have a discussion about the concepts to ensure we’re making progress toward an effective implementation that reflects the policy.  There have also been repeated questions raised about the over-engineering of this implementation.  Because many of the meetings have focused on reviewing language from a specific section (rather than reviewing issues as whole items), it seems like we haven’t gotten past this issue, and should probably take a fresh look at that to ensure we’re not making this implementation more complicated than it needs to be.  We all know that doesn’t lead us to a better implementation.  Right now, we have four draft documents for review/input: (1) accreditation agreement, (2) de-accreditation process, (3) applicant guide, and (4) data escrow specification.   For many members, these require operational and legal review (at a minimum).  Many registrars have commented that 1 December is the earliest they can provide full feedback given the complexity of these documents (although not all have committed to that date).
Given these issues, as well as the fact that the privacy/proxy challenge stemming from IRTP-C needs to be added to this IRT for a solution, we need to take a step back and address these critical issues first.  This isn’t about derailing the IRT; it’s about ensuring we don’t create an implementation that’s an operational nightmare for providers as well as registrants and end users – and that means addressing these critical issues first.

Thanks,
Darcy

From: <gdd-gnso-ppsai-impl-bounces at icann.org<mailto:gdd-gnso-ppsai-impl-bounces at icann.org>> on behalf of theo geurts <gtheo at xs4all.nl<mailto:gtheo at xs4all.nl>>
Reply-To: <gdd-gnso-ppsai-impl at icann.org<mailto:gdd-gnso-ppsai-impl at icann.org>>
Date: Monday, November 6, 2017 at 12:27 PM
To: <gdd-gnso-ppsai-impl at icann.org<mailto:gdd-gnso-ppsai-impl at icann.org>>, "Metalitz, Steven" <met at msk.com<mailto:met at msk.com>>, Sara Bockey <sbockey at godaddy.com<mailto:sbockey at godaddy.com>>
Subject: Re: [Gdd-gnso-ppsai-impl] Materials, action items from 17 Oct Privacy/Proxy IRT call

Hi Steve, Vicky,

Now your argument is logical and makes sense.
Yes, as I mentioned before, CPH's will implement privacy services on many different levels to comply with the GDPR, we agree here.

My biggest problem with the PPSAI IRT is the changing dynamics.
The WG contemplated and discussed and made recommendations based on a very fixed situation.

In my opinion, privacy services should not be used as bandaid for data protection problems.
Complying with data protection laws was not the driving force during the WG days, and now it is.

I think the scope of the IRT has changed and we should deal with this before we move on. We need to think a little smarter and deeper here before we unleash this to many contracted parties who have zero experience with these services and will be required to implement this to comply with data protection laws.

So how do we do that? I think a fixed set of procedures and contractual agreements are essential, yet I do not want us to enter into a situation that causes more issues and forces providers into a situation that we need to ask compliance to defer.
https://www.icann.org/resources/pages/contractual-compliance-statement-2017-11-02-en<https://www.icann.org/resources/pages/contractual-compliance-statement-2017-11-02-en>

I think that scenario is unwanted for everyone on the IRT is it not?

Thanks,

Theo Geurts

On 6-11-2017 19:40, Metalitz, Steven wrote:
I strongly second Vicky’s comments.  The ongoing ICANN work re GDPR is of course very important, but let’s not let it derail progress on the path we have moved so far along toward a P/P service accreditation framework to present to the community.

In that regard, I have some sympathy (empathy?) for those requesting a relaxation of the comment deadline in light of so much other activity demanding our attention. May I suggest that we try to get as many proposed edits onto the list before our November 14 call (with much thanks to those who have already done so), with the goal of dealing with them then if possible, but leaving the door open for further edits over the next couple of weeks if necessary.

Finally, some ICANN groups are adjusting the scheduling of their calls to reflect the return to standard time in North America and Europe.  Is this group doing so as well? If our calls stay at 1400 UTC that is now 9 am EST and 6 am for those on Pacific time.  Moving to 1500 UTC would retain the pre-existing local start times, I  believe.

Steve Metalitz

[age001]
Steven J. Metalitz | Partner, through his professional corporation
T: 202.355.7902 | met at msk.com<mailto:met at msk.com>
Mitchell Silberberg & Knupp LLP | www.msk.com<http://www.msk.com/>
1818 N Street NW, 8th Floor, Washington, DC 20036

THE INFORMATION CONTAINED IN THIS E-MAIL MESSAGE IS INTENDED ONLY FOR THE PERSONAL AND CONFIDENTIAL USE OF THE DESIGNATED RECIPIENTS. THIS MESSAGE MAY BE AN ATTORNEY-CLIENT COMMUNICATION, AND AS SUCH IS PRIVILEGED AND CONFIDENTIAL. IF THE READER OF THIS MESSAGE IS NOT AN INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY REVIEW, USE, DISSEMINATION, FORWARDING OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED. PLEASE NOTIFY US IMMEDIATELY BY REPLY E-MAIL OR TELEPHONE, AND DELETE THE ORIGINAL MESSAGE AND ALL ATTACHMENTS FROM YOUR SYSTEM. THANK YOU.

From: gdd-gnso-ppsai-impl-bounces at icann.org<mailto:gdd-gnso-ppsai-impl-bounces at icann.org> [mailto:gdd-gnso-ppsai-impl-bounces at icann.org] On Behalf Of Victoria Sheckler
Sent: Tuesday, October 31, 2017 5:55 PM
To: gdd-gnso-ppsai-impl at icann.org<mailto:gdd-gnso-ppsai-impl at icann.org>; Sara Bockey
Subject: Re: [Gdd-gnso-ppsai-impl] Materials, action items from 17 Oct Privacy/Proxy IRT call

Please note that ICANN’s work on GDPR’s on a separate track and that one thing we know almost for sure is that the adoption of rational, predictable rules for privacy/proxy will be more important post-GDPR than it ever was.  So please let’s get those rules in place as expeditiously as possible.

On 30-10-2017 11:32, Sara Bockey wrote:
Caitlin,

Thanks for the revised docs.  A few items at first glance that need to be revised, as I believe they have been discussion/raised before.  I will take a closer look and follow up with additional edits, but in the meantime…

  1.  Edit the definitions of Proxy Service and Privacy Service to match the definitions provided in the Final Report/2013 RAA

     *   The definitions of Privacy Service and Proxy Service reflect those in the 2013 RAA.
     *   In this context, the 2013 RAA also defines “Registered Name” as a domain name within the domain of a gTLD, about which a gTLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing Registry Services) maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance, and “Registered Name Holder” is defined as the holder of a Registered Name.
     *   It’s noted that ICANN staff has replace “Registered Name Holder” with “Customer” in many instances, but I question the logic in that since it is inconsistent with the RAA.

  1.  Edit Sections 3.5.3.3. thru 3.5.3.6 to take into consideration GDPR requirements regarding consent.

     *   Consent must be explicitly given for each purpose and can be withdrawn at any time and not a requirement for registration or use of the service.  Therefore, 3.5.3.3. – 3.5.3.6 (at a minimum) are not compatible and must be revise.

  1.  Edit section 3.12.2, as it still contains new language that has been added since the IRT agreement on language in August.  The first sentence in its entirety should be removed.

     *   The section should start with “Well founded…”

Additionally, the following sections need revision or at a minimum further discuss by the IRT

  1.  Edit Section 3.14 to remove the language re no automation.  This is not feasible.  This language must be removed:

     *   Provider shall not use high-volume, automated electronic processes (for example, processes that do not utilize human review) for sending Requests or responses to Requests to Requesters or Customers in performing any of the steps in the processes outlined in the Intellectual Property Disclosure Framework Specification.

  1.  Edit Section 3.15 – Labeling – to remove excessive language.

     *   Provider shall ensure that each Registered Name for which Provider is providing the Services is clearly labeled as such in the Registration Data Directory Service, as specified in the Labeling Specification attached hereto, and shall otherwise comply with the requirements of the Labeling Specification attached hereto.  This language is duplicative and not necessary.  Let’s not add unnecessary words to this already long document. If there are doing to be extra works, perhaps mention complying with applicable local laws in light of GDPR.

sara bockey
sr. policy manager | GoDaddy™
sbockey at godaddy.com<mailto:sbockey at godaddy.com>  480-366-3616
skype: sbockey

This email message and any attachments hereto is intended for use only by the addressee(s) named herein and may contain confidential information. If you have received this email in error, please immediately notify the sender and permanently delete the original and any copy of this message and its attachments.

From: <gdd-gnso-ppsai-impl-bounces at icann.org><mailto:gdd-gnso-ppsai-impl-bounces at icann.org> on behalf of Caitlin Tubergen <caitlin.tubergen at icann.org><mailto:caitlin.tubergen at icann.org>
Reply-To: "gdd-gnso-ppsai-impl at icann.org"<mailto:gdd-gnso-ppsai-impl at icann.org> <gdd-gnso-ppsai-impl at icann.org><mailto:gdd-gnso-ppsai-impl at icann.org>
Date: Wednesday, October 25, 2017 at 4:44 AM
To: "gdd-gnso-ppsai-impl at icann.org"<mailto:gdd-gnso-ppsai-impl at icann.org> <gdd-gnso-ppsai-impl at icann.org><mailto:gdd-gnso-ppsai-impl at icann.org>
Subject: [Gdd-gnso-ppsai-impl] Materials, action items from 17 Oct Privacy/Proxy IRT call

Dear Colleagues,

Thanks so much for your participation on today’s Privacy/Proxy IRT call. For those who could not attend, I encourage you to review the recording and materials on the wiki, https://community.icann.org/display/IRT/24+October+2017<https://community.icann.org/display/IRT/24+October+2017>.

During the call, we discussed an overview of the changes to the draft PPAA.

Please note that ICANN proposed a deadline of Tuesday, 14 November for all comments, concerns, and edits to the draft PPAA. The changes from the last iteration, provided to the IRT in July, have been highlighted in the attached issues list.  Please respond to the list if you would like to request a longer review period.

During ICANN60, we will be presenting an overview of the P/P program’s status to the community.  Attached, please find the slide deck for the presentation.

To highlight a few notes from the IRT’s discussion this morning, we received feedback to:

  1.  Edit the definition of Working Group in Section 1.43, to specify that the Provider Stakeholder Group, if formed, shall only appoint the provider representatives of the Working Group, and the GNSO may appoint other members of the community.

  1.  Add back in the previously-deleted Code of Conduct language in Section 3.5.1.

  1.  Add back in the previously-deleted review provision in Section 7 of the Customer Data Accuracy Program Specification.

If you believe the above items do not reflect the intent of the Working Group’s recommendations, please reply to the list by 14 November 2017.

Thank you, and safe travels to those of you attending ICANN 60!

Kind regards,

Caitlin Tubergen
Registrar Services and Engagement Senior Manager
ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, CA 90094
Office: +1 310 578 8666
Mobile: +1 310 699 5326
Email: caitlin.tubergen at icann.org<mailto:caitlin.tubergen at icann.org>

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