[Gnso-ppsai-pdp-wg] Revised Reveal Doc

Kathy Kleiman kathy at kathykleiman.com
Mon Mar 30 17:05:50 UTC 2015 

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] *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; 
> 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] On Behalf Of Kiran 
> Malancharuvil
> Sent: Monday, March 23, 2015 2:23 PM
> To: Kathy Kleiman; 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] On Behalf Of Kathy Kleiman
>
> Sent: Sunday, March 22, 2015 11:19 AM
>
> To: 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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