[Gnso-ppsai-pdp-wg] Our Statement
Kathy Kleiman
kathy at kathykleiman.com
Thu Apr 30 21:04:11 UTC 2015
Dear Graeme, Steve, Mary and All,
Attached please find our supplemental statement for inclusion in the
Interim Report. Mary, could you please use the attached Word version as
it has the formatting and highlights we seek to show in the published
version.
I include a pasted version below for easy reading.
Best,
Kathy
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Statement of Kathy Kleiman, James Gannon and Stephanie Perrin, Members
of the Noncommercial Stakeholders Group
We respectfully submit that Section 1.3.3, 1.3.3, *Specific Topics on
which there is currently no consensus within the WG*, of this PPSAI
Executive Summary and Interim Report is incomplete.There are a number of
topics on which there is currently no consensus within the WG and which
need considerable work. These are issues well known and deeply discussed.
For the purposes of clarity and to lend depth to the comments and
discussion to come, we submit this statement of how we would like to see
Section 1.3.3 written.
---------------------------------------------------------------------------------------------------------------------
1.3.3, *Specific Topics on which there is currently no consensus within
the WG*
1.3.3.1 REVEAL
The WG’s has not yet reached final preliminary conclusions on key
details of its “Reveal” recommendations (See Annex E of the Interim
Report). There are many details still under discussion and for which the
WG has not reached consensus. These include:
-What remedies should a Customer be allowed in the event that a Reveal
Request was falsely made or the data was improperly used (current
recommendations provide mechanism only for Provider action)?
-Should Requestors be allowed to escalate each and every rejection of a
Reveal Request to a 3^rd party forum, or should the WG seek to adopt
reasonable standards and thresholds for such appeals to avoid
unnecessary and time-consuming appeals?(Note: a Request for
Reconsideration is already a part of the recommended process the WG has
agreed to by consensus.)
-What rights and protections should a Customer be allowed and encouraged
to forth in her/his/its own defense to provide a reasonable defense for
maintaining her/his/its privacy, even in the face of a copyright or
trademark infringement allegation?
-How can Customers be protected from extraterritorial requests from Law
Enforcement from outside their country, when the use of their domain
name is for legal purposes in their own country, but perhaps purposes
deemed illegal in other countries [Note: even Interpol refuses to act
across national lines in matters of political, military, religious and
racial issues because of the enormous differences of law. Article 3,
Interpol Constitution]
Input and comments would be helpful on these issues.
1.3.3.2 THE COMPLEXITIES OF INTRUDING INTO NATIONAL LAW
Although the WG agreed that the mere fact that a domain name is
registered by a commercial entity or by anyone conducting commercial
activity should not preclude the use of P/P services[1] <#_ftn1>[1],
there was disagreement over whether domain names that are actively used
for commercial transactions (e.g. the sale or exchange of goods or
services) should be prohibited from using P/P services.
While *most WG members *did not believe such a prohibition is necessary
or practical, some members believed that registrants of such domain
names should not be able to use or continue using proxy or privacy
services. [1]
*Other members of the WG noted that fundraising and membership drives
are often performed by the very groups and organizations seeking
privacy/proxy registration for protection, including minority political
groups, minority religious organizations, ethnic groups, organizations
committed to change of racial policies, gender orientation groups, and
publications engaged in freedom of expression. These groups and their
representatives note that, in the laws of their countries, the mere
collection of a donation or membership fee does not change their status
from “non-commercial” to commercial. Others noted that “non-profit”
status is limited to only a few countries. *
*Further, many of organizations, small businesses, home-based businesses
(including those run by mothers and seniors) conduct their financial
transactions through 3^rd party e-commerce companies, such as PayPal,
and thus /are not processing the financial transactions directly/.
Accordingly, many members in the WG submit there is no reason to breach
the proxy/privacy of organizations and businesses purely and solely for
this reason. *
*Many members many in the WG submit that content regulation is far
beyond the scope of ICANN and properly the scope of national laws – some
of which has taken initiatives in this area which are clearly defined
and properly limited in scope and application (e.g., Germany).***
For those that argued that it is necessary and practical to limit access
to P/P services to exclude commercial entities, the following text was
proposed to clarify and define their position: “domains used for online
financial transactions for commercial purpose should be ineligible for
privacy and proxy registrations.”
This suggestion has been debated strongly by the members of the WG and
has not reached consensus as others submitted that:
"Attempting to distinguish the end purposes of a domain registration is
not practicable for the purposes of determining eligibility for
privacy/proxy services, and will unfairly discriminate against
vulnerable groups, entrepreneurs, small businesses and organizations who
wish to exercise their rights of freedom of expression rights on the
Internet.
Input requested on the full issues, including questions below:
·Should registrants of domain names associated with commercial
activities and which are used for online financial transactions be
prohibited from using, or continuing to use, privacy and proxy services?
·Is this type of content regulation outside of ICANN's scope and mandate
and the proper province of national law?
------------------------------------------------------------------------
<#_ftnref1>[1]The WG notes that the WHOIS RT had specifically
acknowledged that P/P services can be and are used to address legitimate
interests, both commercial and non-commercial.
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