[Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation

Wed Apr 8 10:33:04 UTC 2015

Paul

If we get a letter / fax / email (with proper contact details)  from a law firm stating that they are acting for X and want Y then we're going to assume that they are indeed acting for X.
Personally I've no interest in knowing what arrangements you have with your clients but I'm also assuming that it's highly unlikely for a law firm to contact us stating they represent someone if they don't.

Regards

Michele
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Blacknight Solutions
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From: gnso-ppsai-pdp-wg-bounces at icann.org [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] On Behalf Of McGrady, Paul D.
Sent: Tuesday, April 7, 2015 7:36 PM
To: Kathy Kleiman; gnso-ppsai-pdp-wg at icann.org
Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation

Kathy, would you proposal below apply to law firms as well?  I will let the other service providers speak for themselves, but I really, really don't think ICANN has any business attempting to interfere in attorney/client relationships - that is clearly outside of our scope and ICANN's remit.

Best,
Paul

Paul D. McGrady Jr.

Partner

Chair, Trademark, Domain Names and Brand Enforcement Practice

Winston & Strawn LLP
35 W. Wacker Drive
Chicago, IL 60601-9703

D: +1 (312) 558-5963

F: +1 (312) 558-5700

Bio<http://www.winston.com/en/who-we-are/attorneys/mcgrady-paul-d.html> | VCard<http://www.winston.com/vcards/996.vcf> | Email<mailto:pmcgrady at winston.com> | winston.com<http://www.winston.com>

[Winston & Strawn LLP]

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: Tuesday, April 07, 2015 8:19 AM
To: gnso-ppsai-pdp-wg at icann.org<mailto:gnso-ppsai-pdp-wg at icann.org>
Subject: Re: [Gnso-ppsai-pdp-wg] PPSAI - Proposed language on attestation

Tx Val,
Many of us think adding the statement you have drafted below would be very useful.  Tx you! But still it does not get its hand around our full concer. What we seek is not the self-declaration of the Consultant, but the clear delegation of the Trademark/Copyright Owner (e.g., Procter and Gamble). Where is the authorization?

James Gannon, our newest member, has been working on some language that is perhaps a little long, and I am sure we can consolidate, but creates a "Letter of Delegation of Authority for Reveal Requests" that shows clearly that the Trademark/Copyright Owner at the senior levels intended to delegate the authority for the legal judgments of infringements being made, and the limitations on the use of the revealed data being committed to. Provided to the Provider and, if necessary, the Customer.

Here's the language. Best, Kathy
--------------------------------------------------------------------------------------------------------------------

In order to find a compromise between both sides of the aisle here I suggest the following possible solution:

Policy Principle: Entities who issue requests pursuant to the Policy must ensure they have the delegated authority to do so. Where an entity requests a reveal of records and does not have the written authority to do so, the entity is deemed to be in non-compliance with the policy.

Detailed Policy Language for Principle:

The sitting corporate officers or general counsel of the requester organization issues a Letter of Delegation of Authority for Reveal Requests to be held directly by anyone to whom the Reveal Request authority is delegated.  This letter is separate to the general delegation of agency to work on the holders behalf. This letter would be specifically delegating the authority to issue Reveal Requests to P/P Service Providers.

The letter would include the following provisions:

- Confirming and warranting the authorization of the delegator to appoint a delegate as an sitting Officer or General Counsel of the company or entity in question.

- Specifying the nature of the delegation and the subject to whom the delegation is being given.

- For each individual that the delegation of authority applies, a letter so delegating that authority to the individual, by name, will be prepared.  This letter will specify that the delegation is specific to the process for requesting reveals of personal and potentially private and sensitive information of individuals, organizations and companies.

- Affirming the authority and expertise of the delegated party to render legal judgements on trademark and copyright infringements.

- Clearly and directly affirming the commitment of the delegating organization or company to be bound by the limits of the use of the Revealed Data as set out in the ICANN policy now and as it might be modified in the future, and consistent with the laws of the jurisdiction in which the Proxy/Privacy Service Provider is incorporated.

- Delegating Organization or Company expressly agrees to be answerable for any challenges that arise by virtue of the Delegatee's actions in preparing and responding to Reveal Requests, and the Delegatee's handling of the Revealed Data, and agrees to be bound to challenge, review and/or lawsuit in any jurisdiction in which the Delegatee has agreed to be bound.

- Delegating Organization or Company consents Provide a copy of this Letter of Delegated Authority for Reveal Requests as a part of the Reveal Request process and as requested by the Proxy/Privacy Service Provider.
---
:
Dear all:

Following up on our productive discussion earlier this week, we'd like to offer a suggestion to modify the "attestation" provisions (II.A.6.c; II.B.7.d; and II.C.6.c) to require a statement by the requestor specifying his/her authority for making the request, or basis for agency if he or she is not the rights holder. For example: "Where the signatory is not the rights holder, he/she must attest that he/she is an authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and having the authority to make the representations and claims on behalf of the rights holder in the request."

We could even spell out the statement for the signatory to make in conjunction with each request : "I attest that I am the rights holder / authorized representative of the rights holder, capable and qualified to evaluate and address the matters involved in this request, and have the authority to make the representations and claims in this request."

These statements of authority and agency are to be made in good faith, under the penalty of perjury - just like representations forming the basis for the request and the requestor's promise to use the data disclosed only for limited enumerated purposes - and the falsity of these statements would be redressable by the method(s) we agree on.

We believe this approach fairly balances the considerations expressed by various WG members and look forward to your thoughts.

Best,
Val

Valeriya  Sherman<http://www.sgrlaw.com/attorneys/profiles/sherman-valeriya/> | Attorney at Law

202-973-2611 phone
202-263-4326 fax
www.sgrlaw.com<http://www.sgrlaw.com>
vsherman at sgrlaw.com<mailto:vsherman at sgrlaw.com>

1055 Thomas Jefferson Street, N.W.
Suite 400
Washington, D.C. 20007

Ms. Sherman's practice is limited to matters before federal courts and before the United States Patent and Trademark Office.
She is not admitted in the District of Columbia.

[cid:image002.jpg at 01D071EF.C5C1CFC0]<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP

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