[gnso-igo-wt] EPDP Final Report - Round 2 - Non-Substantive Edits

Mary Wong mary.wong at icann.org
Wed Mar 23 16:26:00 UTC 2022


Hello again everyone,

Thank you for the discussion! As Justine notes, we had understood the main concern to be the ability to identify the actual registrant so as to key the choice of law to where they are located. Given, however, that privacy services may show the actual registrant but additional contact details may still need to be disclosed (e.g., to establish their location) we’ve conferred with Chris and would like to suggest that we add “privacy service” to the new text. In addition, and building on Justine’s earlier suggestion, we can add a footnote to clarify the distinction between the two types of services.

As such, the full text of Recommendation #5, updated and with a footnote (new text in blue), would read as follows:

Arbitration will be conducted in accordance with the law as mutually agreed by the parties. Where the parties cannot reach mutual agreement, the IGO Complainant shall elect either the law of the relevant registrar’s principal office or the domain name holder's address as shown for the registration of the disputed domain name in the relevant registrar's Whois database at the time the complaint was submitted to the UDRP or URS provider. Where the parties cannot reach mutual agreement in a case where the registered domain name holder is was registered through a privacy or proxy service (add FN) and the underlying registrant’s identity is disclosed as part of the UDRP or URS proceeding, the IGO Complainant shall elect either the law of the relevant registrar’s principal office or the law in the location of the underlying registrant. In all cases, where neither law provides for a suitable cause of action, the arbitral tribunal shall make a determination as to the law to be applied in accordance with the applicable arbitral rules.

Suggested Footnote:
The EPDP team has considered the differences between privacy and proxy services (e.g., as expressed in the respective definitions in Sections 1.2 and 1.3 of the Privacy & Proxy Specification in the Registrar Accreditation Agreement: https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en#privacy-proxy) as well as UDRP Rule 4(b) (concerning timely updates to a respondent’s data, including as a result of a request by a privacy or proxy service to disclose underlying customer data). As Recommendation #5 is intended to ensure that the choice of law for an arbitration proceeding is linked to the actual or underlying registrant and where they are located, the EPDP team has included language in the recommendation to address a situation where a domain name was registered via a privacy or proxy service.

Please let us know if you have any concerns with adding the above-proposed text to the report. Thank you!

Cheers
Steve, Berry & Mary

From: gnso-igo-wt <gnso-igo-wt-bounces at icann.org> on behalf of Justine Chew via gnso-igo-wt <gnso-igo-wt at icann.org>
Reply-To: Justine Chew <justine.chew.icann at gmail.com>
Date: Wednesday, March 23, 2022 at 6:43 AM
To: Chris Disspain <cd.dnscapital at gmail.com>
Cc: igo-wt <gnso-igo-wt at icann.org>
Subject: Re: [gnso-igo-wt] EPDP Final Report - Round 2 - Non-Substantive Edits

Hi Chris,

I agree that in both cases of privacy and proxy the registered name holder (and location) is obscured.

If I can put it this way, in the case of proxy service, the registered name holder is an agent. If all we are concerned about is identifying the registered name holder / agent and its location, then, yes, there is no difference in how we treat the consequence of privacy versus proxy service.

You can correct if I'm wrong but I think the RrSG comment is suggesting that in the case of proxy service, what we should be concerned with is identifying the actual underlying registrant (i.e. the agent's principal or the 'beneficial owner" of the domain name) for the purposes of establishing his/her/its location.

Simply put, privacy service obscures the right party since the registered name holder and the underlying registrant is one and the same, but proxy service "obscures" the incorrect party because the registered name holder and the underlying registrant are not one and the same (and isn't the underlying registrant the party who is in control of and/or uses the domain name?)
Then again, if we assume that the proxy service provider is obliged to defend the claim as the registered name holder alone, then the difference between privacy versus proxy service wouldn't matter as such.

At the end of the day, I am fine if the group wants to include a reference to privacy service as well in Recommendation 5; all I ask is that, in that event, we distinguish and highlight the nature of registered name holder under one service from the other accordingly.  I'll leave it at that, thanks.

Kind regards,
Justine


On Wed, 23 Mar 2022 at 17:09, Chris Disspain <cd.dnscapital at gmail.com<mailto:cd.dnscapital at gmail.com>> wrote:
Hi Justine,

I think it is not just who the registrant is but where they are located. If I am the registrant based in UK but my registrar and privacy provider’s address is in Ireland then my actual UK location is obscured.
Cheers,

Chris


On 23 Mar 2022, at 08:43, Justine Chew <justine.chew.icann at gmail.com<mailto:justine.chew.icann at gmail.com>> wrote:
Hi Chris, Brian,

It seems to me that what we are aiming at getting here is the identity of the underlying registrant as the proper party for establishing location.

My understanding of how privacy services and proxy services work is as explained by Mary. So, even where a privacy service is in play, the registered name holder and the underlying registrant are one and the same person/entity; while in the case where a proxy service is in play, the registered name holder is not the underlying registrant. The RrSG input is aimed at fixing the latter case i.e. to establish the identity of the actual underlying registrant.

If my understanding above is incorrect, then I'm happy to stand corrected.

Kind regards,
Justine


On Wed, 23 Mar 2022 at 16:31, Chris Disspain <cd.dnscapital at gmail.com<mailto:cd.dnscapital at gmail.com>> wrote:
Hello All,

I may be confused here. Isn’t the crux of the point we’re discussing that there would need to be clarity around location of the registrant? Thus where the registrant is actually located is the important bit. If I’m right then whether the registrant’s location is obscured by a proxy or by use of a privacy provider is irrelevant. It’s the fact that it is obscured that requires ‘fixing’. If that’s correct then surely the provision should apply to both privacy and proxy services shouldn’t it?

Cheers,

Chris


On 23 Mar 2022, at 08:13, BECKHAM Brian via gnso-igo-wt <gnso-igo-wt at icann.org<mailto:gnso-igo-wt at icann.org>> wrote:
Thanks Mary, Justine,

I may be overlooking something, but I am not sure I see a distinction for present purposes.

In the case of a privacy service, just like a proxy service, it is the underlying/beneficial registrant who would answer the claim against it in the UDRP case, and who would initiate court proceedings and/or arbitral appeal.

I cannot speak to the UDRP Lock WG but it does seem the fact that the UDRP Rules which were updated following that PDP uses “privacy or proxy” is intended to speak to the above.

(Of course that clause seems to assume some sort of link between the registrar and the privacy or proxy service, which, also noting that PPSAI seems to be more or less indefinitely stalled (but also noting that such WG made a policy decision not to distinguish between the two), may be a question for the RPM Phase II to look at.)

Brian

From: Justine Chew <justine.chew.icann at gmail.com<mailto:justine.chew.icann at gmail.com>>
Sent: Wednesday, March 23, 2022 5:12 AM
To: igo-wt <gnso-igo-wt at icann.org<mailto:gnso-igo-wt at icann.org>>
Cc: BECKHAM Brian <brian.beckham at wipo.int<mailto:brian.beckham at wipo.int>>; Berry Cobb <Berry.Cobb at icann.org<mailto:Berry.Cobb at icann.org>>; Mary Wong <mary.wong at icann.org<mailto:mary.wong at icann.org>>
Subject: Re: [gnso-igo-wt] EPDP Final Report - Round 2 - Non-Substantive Edits

Hi all,

Thanks to RrSG for the proposed edit, Brian for the ensuing question and Mary for the corresponding explanation.

I support the specification of just "proxy service" in Recommendation #5 for the reasons that Mary has provided, and think it would useful to post a shorter version of the explanation as a footnote to highlight that the EPDP Team has indeed considered the issue of "proxy service" vs "privacy service".

Kind regards,
Justine


On Wed, 23 Mar 2022 at 01:54, Mary Wong via gnso-igo-wt <gnso-igo-wt at icann.org<mailto:gnso-igo-wt at icann.org>> wrote:
Hello Brian and everyone,

Thanks for highlighting the Registrar Accreditation Agreement and the UDRP Rules, Brian, which I believe is the link and consistency that the RrSG is asking for.

The reason we had specified “proxy service” rather than use the more typical reference of “privacy/proxy service” is because of a fundamental difference between the two types of service that seems relevant in the context of this recommendation (viz., linking applicable law to where the actual registrant is located):

  *   For domain names registered via a privacy service, the actual registrant is the registered name holder, and the privacy service then provides alternate contact information for purposes of display in Whois or relevant registration directory service.
  *   For domain names registered via a proxy service, the proxy service itself is the registered name holder (and the service then licenses the domain name to the actual underlying registrant to use).

As such, since Recommendation #5 is concerned with the appropriate choice of law for an arbitration between an IGO Complainant and the actual registrant/underlying customer, it seemed necessary to provide clarity for cases involving proxy services and not privacy services. That said, it will be helpful to know if the EPDP team believes that adding “privacy service” to the text is more consistent with the general understanding and provides further clarity.

For further reference, here are the definitions of both types of services from the relevant Specification to the current RAA (https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en#privacy-proxy):
1.2 "Privacy Service" is a service by which a Registered Name is registered to its beneficial user as the Registered Name Holder, but for which alternative, reliable contact information is provided by the P/P Provider for display of the Registered Name Holder's contact information in the Registration Data Service (Whois) or equivalent services.
1.3 "Proxy Service" is a service through which a Registered Name Holder licenses use of a Registered Name to the P/P Customer in order to provide the P/P Customer use of the domain name, and the Registered Name Holder's contact information is displayed in the Registration Data Service (Whois) or equivalent services rather than the P/P Customer's contact information.

Thanks and cheers
Steve, Berry & Mary

P.S. Brian, thanks also for catching the omission of “or” from the text – we’ll make sure to add it!


From: gnso-igo-wt <gnso-igo-wt-bounces at icann.org<mailto:gnso-igo-wt-bounces at icann.org>> on behalf of BECKHAM Brian via gnso-igo-wt <gnso-igo-wt at icann.org<mailto:gnso-igo-wt at icann.org>>
Reply-To: BECKHAM Brian <brian.beckham at wipo.int<mailto:brian.beckham at wipo.int>>
Date: Tuesday, March 22, 2022 at 11:23 AM
To: Berry Cobb <Berry.Cobb at icann.org<mailto:Berry.Cobb at icann.org>>, igo-wt <gnso-igo-wt at icann.org<mailto:gnso-igo-wt at icann.org>>
Subject: Re: [gnso-igo-wt] EPDP Final Report - Round 2 - Non-Substantive Edits

Hi Berry,

Thank you for passing this on.

Often we hear of “privacy and proxy” services/providers, so just wondering if there is a specific reason only “proxy” is used here?

Overall, and for whatever worth, I do note that this seems to match the overall intent of UDRP Rules para 4(b) and RAA 3.7.7.3, the former of which states:

“Any updates to the Respondent's data, such as through the result of a request by a privacy or proxy provider to reveal the underlying customer data, must be made before the two (2) business day period concludes or before the Registrar verifies the information requested and confirms the Lock to the UDRP Provider, whichever occurs first.”

In that case, do we need to add “timely” before “disclosed” at “underlying registrant’s identity is disclosed”?

PS, I think there needs or be an “of” at “office the”.

Brian

From: gnso-igo-wt <gnso-igo-wt-bounces at icann.org<mailto:gnso-igo-wt-bounces at icann.org>> On Behalf Of Berry Cobb via gnso-igo-wt
Sent: Tuesday, March 22, 2022 2:24 PM
To: Chris Disspain via gnso-igo-wt <gnso-igo-wt at icann.org<mailto:gnso-igo-wt at icann.org>>
Subject: Re: [gnso-igo-wt] EPDP Final Report - Round 2 - Non-Substantive Edits

Dear EPDP,

One small update from the report sent out yesterday.

The leadership team received input from the RrSG regarding Proxy registrations and Recommendation #5 on Applicable law. You will see bracketed text on lines 390-392. Staff in consultation with EPDP leadership, it is proposed to amend that bracketed text as follows (bold text):

Arbitration will be conducted in accordance with the law as mutually agreed by the parties. Where the parties cannot reach mutual agreement, the IGO Complainant shall elect either the law of the relevant registrar’s principal office or the domain name holder's address as shown for the registration of the disputed domain name in the relevant registrar's Whois database at the time the complaint was submitted to the UDRP or URS provider. Where the parties cannot reach mutual agreement in a case where the registered domain name holder is a proxy service and the underlying registrant’s identity is disclosed as part of the UDRP or URS proceeding, the IGO Complainant shall elect either the law of the relevant registrar’s principal office the law in the location of the underlying registrant. In all cases, where neither law provides for a suitable cause of action, the arbitral tribunal shall make a determination as to the law to be applied in accordance with the applicable arbitral rules.

The rationale for the change is that it does seem appropriate in those cases where the beneficial registrant’s identity is disclosed as part of the UDRP or URS process to point to that registrant’s location instead of the proxy service’s (as the Registered Name Holder).

If no objections, staff will include this in the next version of the report and we can review during next week’s call.

Thank you.

Mary, Steve, and B

Berry Cobb
Policy Development – Senior Program Manager
Internet Corporation for Assigned Names and Numbers (ICANN)

Mobile: +1 424 443 8960
Phone: +1 202 570 7240
Fax: +1 202 789 0104
Twitter: @berrycobb
www.icann.org<https://www.icann.org/>


From: gnso-igo-wt <gnso-igo-wt-bounces at icann.org<mailto:gnso-igo-wt-bounces at icann.org>> on behalf of Berry Cobb via gnso-igo-wt <gnso-igo-wt at icann.org<mailto:gnso-igo-wt at icann.org>>
Reply-To: Berry Cobb <Berry.Cobb at icann.org<mailto:Berry.Cobb at icann.org>>
Date: Monday, March 21, 2022 at 20:45
To: Chris Disspain via gnso-igo-wt <gnso-igo-wt at icann.org<mailto:gnso-igo-wt at icann.org>>
Subject: [gnso-igo-wt] EPDP Final Report - Round 2 - Non-Substantive Edits

Dear EPDP,

Please find attached a line-numbered version of the lastest draft Final Report. As noted on the call today and in parallel to the final phase of the consensus process, we are beginning round #2 of non-substantive edit proposals to the report. Instructions and a link to the submission table are below.

Please have any suggested revisions posted by 23:59 UTC, 24 March 2022. Staff will import the proposals and return an updated version by the next day the 25th to make ready for review at our next meeting on the 28th.

Link to Input Table: https://docs.google.com/document/d/1TIvh5MKOl7t8Q2Yb_VTqPVlRMhiZS0o6YMZtwXDYvsI/edit [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1TIvh5MKOl7t8Q2Yb_VTqPVlRMhiZS0o6YMZtwXDYvsI/edit__;!!PtGJab4!q9lwWgdUEbc3Kupll5JS4z4eyEFlKUdkgb14OgtZN0jhLZ6oxd16wsJvKCOwB4gsc65tLus$>
*** If you do not have access, please request it. It will notify me and I will provide you with suggestion rights.
**** If you do not get access in a timely manner to the google doc, please follow the instructions below and send your suggested edits to the full email list as an alternative.


Instructions:

  1.  Please note your name and the group you represent in the “Group Submitting” column.
  2.  For the “Line Number(s)” column, denote the line numbers from the clean version of the PDF of the Final Report for which you want to suggest a revision. For sentences or paragraphs, it will be helpful to list the full range of line numbers.
  3.  In the last column, “Proposed Revision”, please add your suggested edit or correction that you feel enhances or makes more clear the intent of the recommendation or supporting text without changing the intent. It should not be necessary to quote the text from the report. In more complex proposals, a rationale statement should be included to help inform the EPDP on why the edit should be made.
  4.  See the example in the first row.
  5.  Round #2 Edits scope: FULL REPORT.
  6.  Link<https://community.icann.org/display/GNSOIWT/Final+Report> to revision history.

Please let us know if you have any questions or need clarifications.

Thank you.

Mary, Steve, and Berry

Berry Cobb
Policy Development – Senior Program Manager
Internet Corporation for Assigned Names and Numbers (ICANN)

Mobile: +1 424 443 8960
Phone: +1 202 570 7240
Fax: +1 202 789 0104
Twitter: @berrycobb
www.icann.org<https://www.icann.org/>



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