[Gnso-ppsai-pdp-wg] Revised Reveal Doc
Kathy Kleiman
kathy at kathykleiman.com
Tue Apr 7 12:47:11 UTC 2015
Tx to Todd and Volker for the discussion. I have to admit I am torn. On
the one hand, I think it is very important to clarity that we are
talking about human rights concerns -- the "complex speech cases" or as
Carlton has said "the fringe cases." On the other hand, I recognize that
there is a reluctance to use the words "human rights." I also see
Todd's balance and wording to address clearly and specifically the
complex issues we have discussed for so long.
I like Todd's new phrasing below:
“that the Customer has provided, or the Provider has found,
specificfacts and circumstances showing that the Requestor’s trademark
or copyright complaint is a pretextual means of obtaining the Customer’s
contact details solely for the purpose of contravening the Customer’s
human rights (e.g., freedom of expression).”
Building on Volker's revised phrasing, does the following cover the same
topics and strike a new balance:
“that the Customer has provided, or the Provider has found,
specificinformation, facts and/or circumstances indicating that the
Requestor’s trademark or copyright complaint is a pretextual means of
obtaining the Customer’s contact details mainly for the purpose of
contravening the Customer’s privacy.legitimate rights and protections
(e.g., freedom of expression and freedom of association).” [with a
descriptive paragraph in the Policy to describe the complex/difficult
cases we (PPSAI) intended to be covered and included.]
Todd? Volker? All?
Best,
Kathy
:
> Thank you Volker. Would be interested to hear what others have to
> say, but I’m OK with the changes that you’ve outlined below except for
> the change from “human rights (e.g., freedom of expression)” to
> “privacy.” Several thoughts on that one:
>
> ·I specifically included the reference to “freedom of expression” per
> Kathy’s request in our call last week to make that explicit, so I’d
> want to hear her thoughts before we remove it.
>
> ·There’s been a general sentiment – expressed most recently by
> Stephanie in our 3-24 call – that some reference to the human rights
> “edge cases” that we’ve 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 “appendix” on human
> rights/complex case advisory group that we discussed earlier. As I’ve
> argued on the calls and below, I think that this option more exactly
> and unambiguously addresses the “edge case” concerns than did the
> previous appendix (or the previous “clear and convincing” 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, I’d be against doing so.
>
> ·I think substituting “privacy” for “human rights” confuses the means
> and ends of what we’re trying to address, and makes III(C)(5) somewhat
> circular. By definition, any time there is a disclosure, the
> beneficial user’s 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 we’ve developed as an
> improper */means/* to a totally */different/* */end/*: namely, the end
> of somehow impinging on the Customer’s 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:
>
>
> “that the Customer has provided, or the Provider has found,
> specificinformation, facts and/or circumstances indicating that the
> Requestor’s trademark or copyright complaint is a pretextual means of
> obtaining the Customer’s contact details mainly for the purpose of
> contravening the Customer’s privacy.”
>
>
> 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, I’ve 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 didn’t capture any of what we discussed:
>
> “that the Customer has provided, or the Provider has found,
> specificfacts and circumstances showing that the Requestor’s
> trademark or copyright complaint is a pretextual means of
> obtaining the Customer’s contact details solely for the purpose of
> contravening the Customer’s human rights (e.g., freedom of
> expression).”
>
> 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 “slam dunk” 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 we’ve 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 <mailto: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 we’re
> dealing with – which, as I understand it, is the risk that
> pretextual complaints may be brought for the purpose of
> violating at-risk users’ human rights. Assuming that is the
> risk that we’re 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
> Requestor’s trademark or copyright complaint is a pretextual
> means of obtaining the Customer’s contact details for the
> purpose of contravening the Customer’s human rights.
>
> Again, I think that more exactly and unambiguously addresses
> the risk that we’ve been discussing in the various
> hypothetical scenarios that Kathy and others have put
> forward. But I’m 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>
> [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
> <mailto: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 I’ve thought about III(C)(5), the more I think
> it’s a poor fit for what we’re trying to address. As I
> understand it from the hypotheticals that we’ve 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) doesn’t
> 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, I’m 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 it’s 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 we’re trying to fight pretext, let’s 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) isn’t 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)? I’m not quite sure why
> it’s still bracketed. We’re already editing it (which seems
> pointless if it might just go away). And without III(D), the
> entire rest of the document – which we’ve 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>
> [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
> <mailto: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>
> [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
> <mailto: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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>
> Volker A. Greimann
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