[Gnso-ppsai-pdp-wg] Revised Reveal Doc
Darcy Southwell
darcy.southwell at endurance.com
Tue Apr 7 00:03:43 UTC 2015
>From a P/P provider¹s perspective, I agree with Volker¹s proposed language
and position that this is about privacy. I think we have to consider how
respect for human rights varies around the world‹some countries have little
to no respect for ³human rights.² Including that language puts the P/P
provider in a position of arguing with a requester who doesn¹t support basic
human rights.
Thanks,
Darcy
Darcy Southwell
Compliance Officer
Endurance International Group
M: +1 503-453-7305
Skype: darcy.enyeart
www.endurance.com
From: "Williams, Todd" <Todd.Williams at turner.com>
Date: Monday, April 6, 2015 at 2:24 PM
To: Volker Greimann <vgreimann at key-systems.net>,
"gnso-ppsai-pdp-wg at icann.org" <gnso-ppsai-pdp-wg at icann.org>
Subject: Re: [Gnso-ppsai-pdp-wg] Revised Reveal Doc
Thank you Volker. Would be interested to hear what others have to say, but
I¹m OK with the changes that you¹ve outlined below except for the change
from ³human rights (e.g., freedom of expression)² to ³privacy.² Several
thoughts on that one:
· I specifically included the reference to ³freedom of expression²
per Kathy¹s request in our call last week to make that explicit, so I¹d want
to hear her thoughts before we remove it.
· There¹s been a general sentiment expressed most recently by
Stephanie in our 3-24 call that some reference to the human rights ³edge
cases² that we¹ve been discussing needs to be explicit in the document. I
think there are two options on the table to do so: 1) do it here; or 2) do
it in the much longer ³appendix² on human rights/complex case advisory group
that we discussed earlier. As I¹ve argued on the calls and below, I think
that this option more exactly and unambiguously addresses the ³edge case²
concerns than did the previous appendix (or the previous ³clear and
convincing² language in III(C)(5), for that matter). So if by removing the
reference to human rights here, we instead have to go back to square one on
discussing and debating the longer appendix, I¹d be against doing so.
· I think substituting ³privacy² for ³human rights² confuses the
means and ends of what we¹re trying to address, and makes III(C)(5) somewhat
circular. By definition, any time there is a disclosure, the beneficial
user¹s privacy is lessened to some extent. The language in III(C)(5) is not
meant to preclude that as an end in itself if it did, it would make the
rest of the document moot. Rather, III(C)(5) precludes Requesters from
submitting pretextual complaints in order to then misuse the disclosure
process that we¹ve developed as an improper means to a totally different
end: namely, the end of somehow impinging on the Customer¹s human rights. I
think that we need to keep that distinction clear for III(C)(5) to work.
My initial thoughts; happy to hear what others have to say.
Todd.
From: gnso-ppsai-pdp-wg-bounces at icann.org
[mailto:gnso-ppsai-pdp-wg-bounces at icann.org] On Behalf Of Volker Greimann
Sent: Thursday, April 02, 2015 1:06 PM
To: gnso-ppsai-pdp-wg at icann.org
Subject: Re: [Gnso-ppsai-pdp-wg] Revised Reveal Doc
Hi Todd,
not having discussed this with anyone else, I'd feel more comforable with
language along the lines of:
³that the Customer has provided, or the Provider has found, specific
information, facts and/or circumstances indicating that the Requestor¹s
trademark or copyright complaint is a pretextual means of obtaining the
Customer¹s contact details mainly for the purpose of contravening the
Customer¹s privacy.²
Solely is too strong, and needs to be toned down as even a partial
connection to a potential violation would otherwise close this door.
I removed human rights as this is mainly about privacy.
Showing was also toned down to indicating. The provider is not a court, he
cannot make legal determinations, but he can accept indications.
Finally, information was added to facts and circumstances, as again, the
provider cannot make factual decisions in every case and should be able to
rely on information.
VG
VG
Am 02.04.2015 um 18:15 schrieb Williams, Todd:
> Following on our call on Tuesday, I¹ve tried to incorporate the changes that
> others suggested to the language for III(C)(5) that I had proposed last week.
> New language below (changes in red). Let me know if I didn¹t capture any of
> what we discussed:
>
> ³that the Customer has provided, or the Provider has found, specific facts and
> circumstances showing that the Requestor¹s trademark or copyright complaint is
> a pretextual means of obtaining the Customer¹s contact details solely for the
> purpose of contravening the Customer¹s human rights (e.g., freedom of
> expression).²
>
> Also, just to reiterate what I mentioned on the call: yes, I did intend this
> new language in III(C)(5) to replace the old language in III(C)(5) (on the
> ³slam dunk² standard) and the previous draft appendix on human rights. For
> the reasons that I mentioned on the call and below, I think that this language
> more exactly and unambiguously addresses the concerns that we¹ve been
> discussing, without otherwise disrupting the balance that the draft proposal
> has attempted to strike.
>
> Todd.
>
>
> From: Kathy Kleiman [mailto:kathy at kathykleiman.com]
> Sent: Monday, March 30, 2015 1:06 PM
> To: Williams, Todd; Kiran Malancharuvil; gnso-ppsai-pdp-wg at icann.org;
> Metalitz, Steven; Graeme Bunton
> Subject: Re: [Gnso-ppsai-pdp-wg] Revised Reveal Doc
>
> I have been mulling over the wording that Todd proposed on Friday. I think it
> should be evaluated alongside the standard we were evaluating (a "clear and
> convincing") as a reason for disclosure -- and I would like to hear what the
> Providers think. But I think it advances our discussion... tx Todd!
>
> Kathy
>
>
> On 3/27/2015 5:45 PM, Williams, Todd wrote:
>> All:
>>
>> I wanted to follow-up on the point that I raised below and in our call on
>> Tuesday. To reiterate: I think that III(C)(5) can be more precisely drafted
>> to address the concern that we¹re dealing with which, as I understand it,
>> is the risk that pretextual complaints may be brought for the purpose of
>> violating at-risk users¹ human rights. Assuming that is the risk that we¹re
>> trying to mitigate, what does everybody think of this proposed draft
>> language:
>>
>> C. Disclosure can be reasonably refused for reasons consistent
>> with the general policy stated herein, including but not limited to:
>>
>> (5) that the Customer has provided, or the Provider
>> has found, specific evidence demonstrating that the Requestor¹s trademark or
>> copyright complaint is a pretextual means of obtaining the Customer¹s contact
>> details for the purpose of contravening the Customer¹s human rights.
>>
>> Again, I think that more exactly and unambiguously addresses the risk that
>> we¹ve been discussing in the various hypothetical scenarios that Kathy and
>> others have put forward. But I¹m happy to discuss further on Tuesday.
>> Thanks as always.
>>
>> Todd.
>>
>>
>> From:gnso-ppsai-pdp-wg-bounces at icann.org
>> [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] On Behalf Of Williams, Todd
>> Sent: Monday, March 23, 2015 4:20 PM
>> To: Kiran Malancharuvil; Kathy Kleiman; gnso-ppsai-pdp-wg at icann.org;
>> Metalitz, Steven; Graeme Bunton
>> Subject: Re: [Gnso-ppsai-pdp-wg] Revised Reveal Doc
>>
>> Yes, thank you Kathy for circulating. Two initial quick thoughts that I
>> wanted to circulate to the WG now before the call (though like Kiran, I'd
>> want to reserve comment on other portions as I review):
>>
>> · The more that I¹ve thought about III(C)(5), the more I think it¹s a
>> poor fit for what we¹re trying to address. As I understand it from the
>> hypotheticals that we¹ve discussed, the concern is that complainants with
>> improper motives will use pretextual complaints to seek disclosure against
>> vulnerable or otherwise at-risk beneficial users. But III(C)(5) doesn¹t
>> really address pretext or the subjective motives of the complainant at all.
>> Rather, it simply outlines the standard to be used in all cases. Perhaps
>> having a higher standard could weed out some pretextual complaints. But not
>> necessarily.
>> 1) We could certainly think of hypotheticals where the complainant may
>> have pretextual or improper motives, but still puts forward a claim that on
>> its face passes the III(C)(5) standard.
>> 2) On the other side, I¹m sure we could also think of hypotheticals where
>> the complainant has completely pure motives, but still has one or two parts
>> of its trademark or copyright claim that it¹s still trying to pin down (in
>> fact, that may be the very reason why it is seeking information on who the
>> beneficial owner is).
>> I think III(C)(5) as currently drafted allows for disclosure in (1) but not
>> (2) which seems backwards to me. In other words, if we¹re trying to fight
>> pretext, let¹s fight pretext. As it is, I think the draft already does a
>> good job of that:
>> 1) I(B)(v) contemplates revoking access for having filed a pretextual
>> complaint.
>> 2) I(B)(vi) contemplates Providers sharing information about pretextual
>> complaints.
>> 3) II(A)(7), II(B)(7), and II(C)(7) all contemplate that complaints will
>> be submitted under penalty of perjury (with all of the deterrence against
>> pretext that goes with that).
>> 4) The entire Annex outlines possibilities for handling disputes that
>> arise from pretextual complaints.
>> If we want to discuss as a WG whether the draft should do more on pretext, or
>> perhaps add some language about pretext to III(C)(2) or III(C)(3), we can.
>> But I think that trying to fit that square peg (pretext concerns) into a
>> round hole (the III(C)(5) standard) isn¹t the best way to do it.
>> · I like your edits Kathy to III(D), but can we as a WG agree to
>> remove the brackets from III(D)? I¹m not quite sure why it¹s still
>> bracketed. We¹re already editing it (which seems pointless if it might just
>> go away). And without III(D), the entire rest of the document which we¹ve
>> now spent weeks trying to get to a place approaching consensus is moot.
>>
>> Thanks as always.
>>
>> Todd.
>>
>> -----Original Message-----
>> From: gnso-ppsai-pdp-wg-bounces at icann.org
>> [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] On Behalf Of Kiran Malancharuvil
>> Sent: Monday, March 23, 2015 2:23 PM
>> To: Kathy Kleiman; gnso-ppsai-pdp-wg at icann.org; Metalitz, Steven; Graeme
>> Bunton
>> Subject: Re: [Gnso-ppsai-pdp-wg] Revised Reveal Doc
>>
>> 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 <http://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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>
>
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