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

[Carlton Samuels]

Oh, I should have reminded you that Holly and I represent the At-Large
constituency in our formal roles as CoChairs of the At-Large Registration
Issues Working Group, itself an amalgam of the At-Large Registrant Rights &
Responsibilities WG + At-Large WHOIS WG.

-Carlton


==============================
Carlton A Samuels
Mobile: 876-818-1799
*Strategy, Planning, Governance, Assessment & Turnaround*
=============================

On Sun, Mar 8, 2015 at 9:06 PM, Don M. Blumenthal <dmb at donblumenthal.com>
wrote:

> Thanks, Kathy.
>
> I have some possibilities in mind but, for clarity, can you give an idea
> of who "we" refers to?
>
> Thanks,
>
> Don
>
> On 3/8/2015 10:41 AM, Kathy Kleiman wrote:
> > 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
> >
> > _______________________________________________
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> > Gnso-ppsai-pdp-wg at icann.org
> > https://mm.icann.org/mailman/listinfo/gnso-ppsai-pdp-wg
>
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