[Gnso-ppsai-pdp-wg] Three additional considerations

[Kathy Kleiman]

Dear All,
We deeply appreciate the discussion of this past week and look forward 
to the discussion this week. It looks like good progress has been made 
on the issues of default and communications with Providers. Tx you!

There are, however, a few additional issues that need to be addressed, 
some gaps in this important Reveal text. The purpose of this email is to 
highlight the gaps and some solutions to them.

1) The tough questions.
We are deeply concerned about the most difficult questions that will 
pass through this Reveal process - the ones in which copyright and 
trademark allegations are being used to stifle criticism and speech. The 
ones in which hard standards are being taken against political 
corruption, in favor of persecuted and minority political, religious, 
ethic and sexual expression, and in which news ideas, concepts and 
concerns are being shared that threatened the establishment, the 
incumbents, the powerful.

These cases to not happen everyday, but when they do, these cases work 
with vital freedom of expression, free speech & competition issues. 
Revealing the identity of such speakers could not only suppress the 
speech to which they are entitled, but expose protected addresses and 
locations of political, religious, ethnic and sexual minorities to 
harassment or worse. Several in our WG have used the Church of 
Scientology example because anyone who posts their materials (however 
small the snippet) faces criticism as a "copyright infringer" and the 
wrath of a well-funded entity. Many large business seek to squelch young 
competitors with "trademark infringement" allegations even in the 
countries where competition allows the direct naming and critiquing of 
your competitor's products and services. Wendy Seltzer set up the 
"Chilling Effects" database years ago expressly for these letters and 
this concern...

What we gather from Providers is that these Reveal Requests are 
difficult and expensive to process -- that there is significant cost in 
time and money to evaluate these questions closely.  What we expect is 
that even the best corporate counsel does not necessarily have a 
specialty in areas of international Freedom of Expression rights, Free 
Speech evaluations and international competition laws (and that's fair!) 
So these cases take a lot of time to research (and $$$). Yet, these are 
the questions in which minority speech, political expression, and 
controversial ideas -- protected classes worldwide -- rests. We 
respectfully request that it is not fair to ask Providers to incur the 
costs of a Freedom of Expression investigation - but neither is it fair 
to allow the rights of minority speakers, "fringe groups" and other 
protected groups and individuals to go under-assessed or under-evaluated.

So for these tough and questions, and to make Providers' lives easier 
and cheaper, we propose a safety valve: the creation of a group of 
Freedom of Expression/Free Speech/Competition Attorneys (at least 1 from 
each Region) to sit on a "Complex Case Advisory Group." Solely at the 
Provider's discretion, a matter could be sent to this group for rapid 
review -- and a response shared for the Provider's consideration. 
Nothing binding. An outsourcing of the most difficult (and expensive) 
problems for evaluation and input.

We are certain ICANN has the funds for this and should be willing to 
support this advisory-only group.  This would be an addition to Section 
III, Service Provider Action on Request.

2) Appeals
What's good for the goose is good for the gander. Both groups should be 
allowed to file appeals - both the Requestor whose request is turned 
down and the Customer whose Reveal is granted over his/her/its 
objections.  In order to stop the floodgates of too many appeals, we 
propose a "loser pays" system with a clear and specified deference (by 
the decision-maker) to the Provider. We also propose that the body to 
which this goes to be a neutral one with - with clear history and 
expertise in Freedom of Expression, Intellectual Property and 
Competition Law.  Of course, this proceeding should, of course, be 
completely online. (Additions to III.F)

3) Sanctions
We would like to see more discussion of this - what might be done to 
prevent the frivolous or unfounded Requestors from continuing abusive 
patterns within and across Providers. Frivolous requests are an undue 
cost to the Provider and ones that put Customer into real frenzies of 
work and response. While we continue to think hard about this matter, we 
propose at this time a small addition to Section I(B) that would 
expressly allow Providers to share among themselves information about 
Requestors they feel are/have misused the system (such as vi: Nothing 
shall prevent providers from sharing data...).


We look forward to the discussions this week. As the draft before us 
took many weeks in its formation, we appreciate the time and opportunity 
to evaluate it now -- with the full WG!

Best,
Kathy