[Gnso-ppsai-pdp-wg] Privacy and Protection ServiceAccreditation Issues Working Group

Tue Jan 14 19:20:12 UTC 2014

Gema,

Thanks for mentioning the issues. My responses are in the body of your note.

Don

From: "<Campillos Gonzalez>", Gema Maria <GCAMPILLOS at minetur.es<mailto:GCAMPILLOS at minetur.es>>
Date: Tuesday, January 14, 2014 at 1:22 PM
To: Don Blumenthal <dblumenthal at pir.org<mailto:dblumenthal at pir.org>>, Tim Ruiz <tim at godaddy.com<mailto:tim at godaddy.com>>, "Luc SEUFER (lseufer at dclgroup.eu<mailto:lseufer at dclgroup.eu>)" <lseufer at dclgroup.eu<mailto:lseufer at dclgroup.eu>>
Cc: PPSAI <gnso-ppsai-pdp-wg at icann.org<mailto:gnso-ppsai-pdp-wg at icann.org>>
Subject: RE: [Gnso-ppsai-pdp-wg] Privacy and Protection ServiceAccreditation Issues Working Group

I´m sorry but my limited English capabilities don’t help to understand your comment, Don. I set out the paragraphs where I´m lost:

What if the use is legal... What use do you refer to? The use of the domain name? Do you mean that the string itself (e.g.: fulanito.com) doesn´t infringe third party rights?

DMB – My reference was to Tim’s mention of Illegal content and his suggestion that examining illegal content is not within ICANN”s mission. I was asking about whether it might be ICANN’s job where the content is legal but may show that the domain holder isn’t staying within the bounds of whatever p/p designation allowed it to use proxy or privacy.

The domain´s commercial/non-commercial designation… The way the domain name holder considers or label himself?

DMB – How to determine that, if at all, is up to the WG. I was just borrowing a term that’s comment in p/p discussions.

A hobbyist´s backyard habitat website… What is this? A blog or a website where you share your views on issues of your interests that you run as a hobby?

DMB – Yes, in this case maintaining property in a way that encourages wildlife to visit. A vast oversimplification, and not entirely accurate for this site that began as habitat pages. Still, it’s an example that I know of.
www.wrenaissance.com

An Amazon affiliate link… A link to the Amazon website to buy a book you are recommending, for instance?

DMB – Your example is a good one.

Furthermore, I still don´t understand why you, Tim or others in the group insist on separating content or use (websites) from domain name holders. Why should this matter in reveal requests addressed to proxy and privacy services? Should P&P services only reply to those requests when they are persuaded that the domain name holder is the service provider responsible for the website?

DMB – The primary reason to separate domains from websites is that not all domain holders have them. Many recent law enforcement actions such as ones against botnets are in that category. As for your other questions, I I will leave them for later discussion by the WG if we get to the point that they are relevant in our p/p deliberations. Again, my points were directed, and only as questions, to issues about whether ICANN might have a legitimate role in examining content.

I take advantage of this message to respond to one of Luc Seufer´s remarks which is related to this thread. When public authorities search for the owner of a website, we resort to all providers that can provide information. We try to follow a logical path starting with the ones closer to the service provider, but if they don´t answer us (and many hosting providers don´t answer), we have to go up the ladder and ask the advertisement networks, VISA and other payment means, telecom operators, registrars and P&P services…. Naturally, the first thing one infringes when leads an illegal activity is article 5 of the Directive 2000/31/CE, and subsequently, they don´t display any information or very little one about themselves on their websites.

Thank you very much for help in understanding your case as regards content and registrants and its relationship with the remit of this group.

Best regards,

Gema

-----Mensaje original-----
De: gnso-ppsai-pdp-wg-bounces at icann.org<mailto:gnso-ppsai-pdp-wg-bounces at icann.org> [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] En nombre de Don Blumenthal
Enviado el: martes, 14 de enero de 2014 18:00
Para: Tim Ruiz
CC: gnso-ppsai-pdp-wg at icann.org<mailto:gnso-ppsai-pdp-wg at icann.org>
Asunto: Re: [Gnso-ppsai-pdp-wg] Privacy and Protection ServiceAccreditation Issues Working Group

True. However, what if the use is legal but the website content creates questions about the domain¹s commercial/non-commercial designation if the WG recommends differentiation? To steal Gema¹s example in her first
message:

But, what is the difference between them? A hobbyist¹s backyard habitat website and another hobbyist¹s backyard habitat website that has, or later adds, an Amazon affiliate link to defray costs?

Don

On 1/14/14, 10:11 AM, "Tim Ruiz" <tim at godaddy.com<mailto:tim at godaddy.com>> wrote:

>That is an issue with use/content, which is not within ICANN's mission,
>as far as I read their mission. How an accredited p/p service responds
>when properly notified of illegal content (following due process),
>should be the same as what is required of an accredited registrar.
>________________________________________
>From: gnso-ppsai-pdp-wg-bounces at icann.org<mailto:gnso-ppsai-pdp-wg-bounces at icann.org>
><gnso-ppsai-pdp-wg-bounces at icann.org<mailto:gnso-ppsai-pdp-wg-bounces at icann.org>> on behalf of Campillos Gonzalez,
>Gema Maria <GCAMPILLOS at minetur.es<mailto:GCAMPILLOS at minetur.es>>
>Sent: Tuesday, January 14, 2014 10:01 AM
>To: Luc SEUFER
>Cc: gnso-ppsai-pdp-wg at icann.org<mailto:gnso-ppsai-pdp-wg at icann.org>
>Subject: Re: [Gnso-ppsai-pdp-wg] Privacy and Protection
>ServiceAccreditation Issues Working Group
>
>Thank you for the reminder, Luc. I give another real-world and trickier
>instance using the word "registrant".
>
>Has the registrant a commercial purpose when he runs a forum-like
>website on which he also offers access to copyrighted works free of
>charge? In this case, the registrant leads this activity for the sake
>of it and doesn't get any profits at all from it. But, he is causing
>great damage to right holders.
>
>I join the conference now.
>
>Regards,
>
>Gema
>
>-----Mensaje original-----
>De: Luc SEUFER [mailto:lseufer at dclgroup.eu] Enviado el: martes, 14 de
>enero de 2014 15:33
>Para: Campillos Gonzalez, Gema Maria
>CC: Jim Bikoff; gnso-ppsai-pdp-wg at icann.org<mailto:gnso-ppsai-pdp-wg at icann.org>
>Asunto: Re: [Gnso-ppsai-pdp-wg] Privacy and Protection
>ServiceAccreditation Issues Working Group
>
>Hello Gema,
>
>Just a kind reminder that ICANN is only dealing with domain names, not
>websites. Thus, in my opinion, the distinction should be made on the
>registrant type alone.
>Hosting services are regulated by ad'hoc laws and those services are
>outside of ICANN's scope.
>
>As you know, to serve the EU an online merchant has to abide by
>Directive
>2000/31 (its national transpositions to be more precise) and must
>publish their details on their website. Should they fail to do so, the
>hosting provider should be the party that LEA should contact, not the registrar.
>
>Luc
>
>
>
>On Jan 14, 2014, at 14:24, Campillos Gonzalez, Gema Maria
><GCAMPILLOS at minetur.es<mailto:GCAMPILLOS at minetur.es<mailto:GCAMPILLOS at minetur.es<mailto:GCAMPILLOS at minetur.es>>> wrote:
>
>Dear all,
>
>I agree with commentators that this categorization is clearer than the
>previous one.
>
>Although I am aware of your reluctance to introduce variations to the
>Charter questions passed by the GNSO Council on 31st October, a doubt
>has come up to my mind. Some of the questions rest on the difference
>between commercial and non-commercial activities (4, 5 and 6 in the
>first group and 4 in the last one). But, what is the difference between
>them? A copyright infringing website where video streaming or downloads
>are free of charge but which is supported by advertisements or SMS
>premium services is a commercial or a non-commercial activity?
>
>Thank you,
>
>Gema
>
>De:
>gnso-ppsai-pdp-wg-bounces at icann.org<mailto:gnso-ppsai-pdp-wg-bounces at ic<mailto:gnso-ppsai-pdp-wg-bounces at icann.org<mailto:gnso-ppsai-pdp-wg-bounces at ic>
>ann .org> [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] En nombre de Jim
>Bikoff Enviado el: lunes, 13 de enero de 2014 23:05
>Para: gnso-ppsai-pdp-wg at icann.org<mailto:gnso-ppsai-pdp-wg at icann.org<mailto:gnso-ppsai-pdp-wg at icann.org<mailto:gnso-ppsai-pdp-wg at icann.org>>
>Asunto: [Gnso-ppsai-pdp-wg] FW: Privacy and Protection Service
>Accreditation Issues Working Group
>
>Dear All,
>
>Although the question groupings are still being completed, it may be
>helpful to our audience if we grouped the questions in the letters in
>some logical, categorical manner, even if that grouping is but a draft.
>
>To address the substantive content of the questions, it seems that the
>ultimate issue is set forth in the first question: "What, if any, are
>the types of Standard Services Practices that should be adopted and
>published by ICANN-accredited privacy/proxy service providers?" The
>questions following it address that main issue.  Most of the issues and
>questions could be subsumed under the following general categories:
>
> * MAINTENANCE of privacy/proxy services;  * CONTACT point provided by
>each privacy/proxy service;  * RELAY of complaints to the privacy/proxy
>customer; and  * REVEAL of privacy/proxy customers' identities.
>If we followed this categorization, the issues and questions would be
>grouped as follows:
>
> MAIN ISSUES
>
>
>1.      What, if any, are the types of Standard Service Practices that
>should be adopted and published by ICANN-accredited privacy/proxy
>service providers?
>
>2.      Should ICANN distinguish between privacy and proxy services for
>the purpose of the accreditation process?
>
>3.      What are the contractual obligations, if any, that, if
>unfulfilled, would justify termination of customer access by
>ICANN-accredited privacy/proxy service providers? Should there be any
>forms of non-compliance that would trigger cancellation or suspension
>of registrations?  If so, which?
>
>4.      What are the effects of the privacy and proxy service
>specification contained in the 2013 RAA? Have these new requirements
>improved WHOIS quality, registrant contactability, and service usability?
>
>5.      What should be the contractual obligations of ICANN accredited
>registrars with regard to accredited privacy/proxy service providers?
>Should registrars be permitted to knowingly accept registrations where
>the registrant is using unaccredited service providers that are bound
>to the same standards as accredited service providers?
>
>
>MAINTENANCE
>
>
>1.      Should ICANN-accredited privacy/proxy service providers be
>required to label WHOIS entries to clearly show when a registration is
>made through a privacy/proxy service?
>
>2.      Should ICANN-accredited privacy/proxy service providers be
>required to conduct periodic checks to ensure accuracy of customer
>contact information; and if so, how?
>
>3.      What rights and responsibilities should customers of
>privacy/proxy services have? What obligations should ICANN-accredited
>privacy/proxy service providers have in managing these rights and
>responsibilities? Clarify how transfers, renewals, and PEDNR policies
>should apply.
>
>4.      Should ICANN-accredited privacy/proxy service providers
>distinguish between domain names registered or used for commercial with
>those registered or used for personal purposes? Specifically, is the
>use of privacy/proxy services appropriate when a domain name is
>registered or used for commercial purposes?
>
>5.      Should there be a difference in the data fields to be displayed
>if the domain name is registered or used for a commercial purpose or by
>a commercial entity instead of a natural person?
>
>6.      Should the use of privacy/proxy services be restricted only to
>registrants who are private individuals using the domain name for
>non-commercial purposes?
>
>
>CONTACT
>
>
>1.      What measures should be taken to ensure contactability and
>responsiveness of the providers?
>
>2.      Should ICANN-accredited privacy/proxy service providers be
>required to maintain dedicated points of contact for reporting abuse?
>If so, should the terms be consistent with the requirements applicable
>to registrars under Section 3.18 of the RAA?
>
>3.      Should full WHOIS contact details for ICANN-accredited
>privacy/proxy service providers be required?
>
>4.      What forms of malicious conduct, if any, should be covered by a
>designated published point of contact at an ICANN-accredited
>privacy/proxy service provider?
>
>
>RELAY
>
>1.      What, if any, baseline minimum standardized relay processes
>should be adopted by ICANN-accredited privacy/proxy service providers?
>
>2.      Should ICANN-accredited privacy/proxy service providers be
>required to forward to the customer all allegations of illegal
>activities they receive relating to specific domain names of the customer?
>
>
>REVEAL
>
>
>1.      What, if any, baseline minimum standardized reveal processes
>should be adopted by ICANN-accredited privacy/proxy service providers?
>
>2.      Should ICANN-accredited privacy/proxy service providers be
>required to reveal customer identities for the specific purpose of
>ensuring timely service of cease and desist letters?
>
>3.       What forms of alleged malicious conduct, if any, and what
>evidentiary standard would be sufficient to trigger such disclosure?
>What specific violations, if any, would be sufficient to trigger such
>disclosure?
>
>4.       What safeguards, if any, should be put in place to ensure
>adequate protections for privacy and freedom of expression? Should
>these standards vary depending on whether the website is being used for
>commercial or non-commercial purposes? What safeguards or remedies
>should be available in cases where publication is found to have been unwarranted?
>
>5.       What circumstances, if any, would warrant access to registrant
>data by law enforcement agencies?
>
>6.       What clear, workable, enforceable and standardized processes
>should be adopted by ICANN-accredited privacy/proxy services in order
>to regulate such access (if such access is warranted)?
>
>
>
>
>        Please let me know if this categorization is helpful.
>
>Jim
>
>James L. Bikoff
>Silverberg, Goldman & Bikoff, LLP
>1101 30th Street, NW
>Suite 120
>Washington, DC 20007
>Tel: 202-944-3303
>Fax: 202-944-3306
>jbikoff at sgbdc.com<mailto:jbikoff at sgbdc.com<mailto:jbikoff at sgbdc.com<mailto:jbikoff at sgbdc.com>>
>
>
>
>
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