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

Wed Mar 23 18:18:31 UTC 2022

*Re:  "...and the underlying registrant’s identity is disclosed as part of
the UDRP or URS proceeding,"*

What happens if the registrant's identity is not disclosed?

Sincerely,
Jay Chapman

<http://digimedia.com>
Digimedia.com - 102 S. Broadway, #200 - Edmond, OK 73034
jay at digimedia.com - (940) 691-1800

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On Wed, Mar 23, 2022 at 11:26 AM Mary Wong via gnso-igo-wt <
gnso-igo-wt at icann.org> wrote:

> 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
> <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>
> 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>
> 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>
> 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> 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>
> *Sent:* Wednesday, March 23, 2022 5:12 AM
> *To:* igo-wt <gnso-igo-wt at icann.org>
> *Cc:* BECKHAM Brian <brian.beckham at wipo.int>; Berry Cobb <
> Berry.Cobb at icann.org>; Mary Wong <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> 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> on behalf of BECKHAM
> Brian via gnso-igo-wt <gnso-igo-wt at icann.org>
> *Reply-To: *BECKHAM Brian <brian.beckham at wipo.int>
> *Date: *Tuesday, March 22, 2022 at 11:23 AM
> *To: *Berry Cobb <Berry.Cobb at icann.org>, igo-wt <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> *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>
> *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
>
>
>
>
>
> *From: *gnso-igo-wt <gnso-igo-wt-bounces at icann.org> on behalf of Berry
> Cobb via gnso-igo-wt <gnso-igo-wt at icann.org>
> *Reply-To: *Berry Cobb <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>
> *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
>
>
>
>
>
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