[Gnso-ppsai-pdp-wg] Revised Reveal Doc
Stephanie Perrin
stephanie.perrin at mail.utoronto.ca
Tue Apr 7 13:54:30 UTC 2015
I think "solely" is a high threshold for the providers to determine.
With respect to the language regarding "privacy" vs "human
rights/freedom of expression", etc. I think it is important to remind
ourselves that we are talking about reveal....i.e. dropping the
"privacy" (in the broadest sense) protections provided by the service
provider. That"privacy" service is an instrument to protect privacy in
the legal data protection sense, or freedom of association and
expression for groups, or privacy as protection for endangered people
etc. I believe we need to add more words rather than subtract them,
because I think it is quite confusing, especially for those not steeped
in the lingo.
I think this is a useful discussion and we are definitely getting there...
Stephanie Perrin
On 2015-04-07 9:32, Victoria Sheckler wrote:
>
> If we’re going down this path, Todd’s language I think is better –
> more clear, concise, etc.
>
> *From:*gnso-ppsai-pdp-wg-bounces at icann.org
> [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] *On Behalf Of *Kathy Kleiman
> *Sent:* Tuesday, April 7, 2015 8:47 AM
> *To:* gnso-ppsai-pdp-wg at icann.org
> *Subject:* Re: [Gnso-ppsai-pdp-wg] Revised Reveal Doc
>
> 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>
> [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 <mailto: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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> --
>
> Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung.
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>
> Mit freundlichen Grüßen,
>
>
>
> Volker A. Greimann
>
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