[Gnso-ppsai-pdp-wg] Accredited proxy providers vs unaccredited proxy providers

Tue Nov 17 11:11:14 UTC 2015

I find myself agreeing with Susan and Steve here. It should be simple either the domain name is registered by an accredited PP provider or the person whose details are appointed in the whois database are those of the registered name holder (with the meaning of the RAA).

IMO the fact that the Registered Name Holder secretly acts on the behalf of a principal doesn’t matter vis-a-vis ICANN policies. Such relationship can always be disclosed at a later stage to determine the liability of the parties but it is for the court of laws and other authorities to decide, not ICANN.

Lastly, email, hosting and all other services are not under ICANN purview, so the consequences of this program is limited to the domain registration itself.

Luc

On 16 Nov 2015, at 23:54, Metalitz, Steven <met at msk.com<mailto:met at msk.com>> wrote:

Let’s all bear in mind that ICANN and its policies and contracts cannot definitively set liability rules.  Those are determined by courts and/or statutes in various countries where disputes arise.  What we can do is determine which contractual provisions or polices apply to which actors.  This is what the language circulated by the co-chairs attempts to do.

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: Monday, November 16, 2015 5:12 PM
To: gnso-ppsai-pdp-wg at icann.org<mailto:gnso-ppsai-pdp-wg at icann.org>; James M. Bladel
Subject: Re: [Gnso-ppsai-pdp-wg] Accredited proxy providers vs unaccredited proxy providers

Hi James,
I am all in favor of the carrot -- "An accredited PP Service Provider, in good standing with ICANN and acting in accordance with the PPSAI framework shall not be held responsible for the actions of their customers."  But the flipside is not an equal and opposite part of the equation. The fact is that in developing Internet community, and in families coming online for the first time, it is often one individual/one small business that registers the domain names for a few others. They are the "training wheels" of the system and bring others online with them.  Often the domain name use itself clearly identifies its accurate use -- a Girl Scout troop, a club, an organization.

It is not unregulated space to say that the individual registrants are not responsible for every use of the domain name and website - there are groups and families and customers sharing these responsibilities. That does not make the registrant  proxy/privacy services providers either - that's not their business - and a "strict liability" standard is not fair. I may own my car, but if my son takes it out and gets into an accident, I get to argue that he was driving and not me.

Similarly with a domain name, the UDRP and other panels and courts want to know who is really using the domain name - not just in whose name it is registered. P/P accreditation is a registration issue; liability is largely a content one. I would much rather regulate lawyer and others who are actually offering unofficial p/p providers than wade into these waters of content and use for individual and small businesses and organizations...

Best,
Kathy
On 11/16/2015 1:14 PM, James M. Bladel wrote:
Thanks Susan & Steve for teeing up this thread.

Generally speaking, I agree with Paul M's. (I thinK?) comments from last week that we do not want ICANN straying in to waters where it is managing/governing/regulating legal services.  Those frameworks are already in place (and far exceed the scope of our work).  And there will always be mechanisms for people to create legal or commercial entities to keep their information “arms length” from being publicly available in WHOIS.  Like proxy services for gun purchases in the US, or teenagers waiting outside liquor stores trying to convince an adult to buy them beer, I don’t know that we can ever fully account for those who are actively engaged in efforts to undermine industry requirements.

And yet, we should acknowledge that there are parallels to what this group (PPSAI) is trying to achieve:  Namely bringing a currently unregulated marketplace under the “ICANN umbrella”, and subjecting it to contractual authority.  Why would any existing player volunteer for this?  The current answer is because these services are attached to Registrars, but this is not essential to providing privacy/proxy services, and if we aren’t careful then in the very near future unaffiliated, unaccredited privacy/proxy services could become the norm.

To guard against this outcome, I think we need to recognize that Registries and Registrars participate in ICANN and submit to its contractual authority because there are clear and tangible benefits for doing so.  Carrots, rather than sticks.  Steve & Susan correctly point out that there are implicit protections for Registrar/PP Services under 3.7.7.3 in the RAA.  In effect, we are saying that you are the Registrant of Record (and responsible for the domain name), unless & until you declare otherwise.  I believe we (PPSAI) should strengthen this section (here in the RAA, or in the PPSAI final product), by stating something to the effect of:  "An accredited PP Service Provider, in good standing with ICANN and acting in accordance with the PPSAI framework shall not be held responsible for the actions of their customers.”  And, on the other side of the coin:  “Any individual or entity acting as a privacy or proxy service, but lacking ICANN-accreditation or not in good standing is considered the Registrant of Record, and is fully responsible for the domain name registration.”

IMO, this approach addresses a number of open questions:

  *   It provides a clear incentive for PP Services to acquire and maintain accreditation.
  *   It allows law firms or other agents of registrants to represent their clients in WHOIS without the burden of accreditation.
  *   It injects sufficient risk / exposure to deter illicit or rouge PP Services from dodging accreditation requirements by claiming they are law firms.
  *   It mirrors other safe harbors (DMCA) that encourage service providers to respond to abuse complaints and terminate services to customers, in exchange for protections from civil action.

Naturally there are tons of details to be ironed out in implementation (this is ICANN, after all….) but I hope this helps expand on the idea of using concepts under RAA Sec. 3.7.7.3 to draw some lines between “Good" PP Services, “Bad” PP Services, and Law Firms.

Thanks—

J.

From: <gnso-ppsai-pdp-wg-bounces at icann.org<mailto:gnso-ppsai-pdp-wg-bounces at icann.org>> on behalf of "Metalitz, Steven" <met at msk.com<mailto:met at msk.com>>
Date: Monday, November 16, 2015 at 11:43
To: 'Susan Kawaguchi' <susank at fb.com<mailto:susank at fb.com>>, PPSAI WG <gnso-ppsai-pdp-wg at icann.org<mailto:gnso-ppsai-pdp-wg at icann.org>>
Subject: Re: [Gnso-ppsai-pdp-wg] Accredited proxy providers vs unaccredited proxy providers

Thanks Susan.  I think this is the intent of the language the co-chairs circulated after last week’s call:

For non-accredited entities registering names on behalf of third parties, the WG notes that the obligations for Registered Name Holders as outlined in section 3.7.7 of the 2013 RAA would apply.

One relevant provision (in 3.7.7.3) states:

“Any Registered Name Holder that intends to license use of a domain name to a third party is nonetheless the Registered Name Holder of record and is responsible for providing its own full contact information and for providing and updating accurate technical and administrative contact information adequate to facilitate timely resolution of any problems that arise in connection with the Registered Name.”

Steve Metalitz

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 Susan Kawaguchi
Sent: Monday, November 16, 2015 12:34 PM
To: gnso-ppsai-pdp-wg at icann.org<mailto:gnso-ppsai-pdp-wg at icann.org>
Subject: [Gnso-ppsai-pdp-wg] Accredited proxy providers vs unaccredited proxy providers

Hello All,

I have given more thought about  the discussion concerning  accredited proxy vendors versus all other unaccredited proxy vendors, including lawyers.   It seems to me that we are never going to be able to capture each variation of the unaccredited proxy vendor and James brought up a point that I think we should consider.

If accredited proxy vendors adhere to all the requirements we are describing they will have the benefit of not being considered the registrant of the domain name.

Any other type of unaccredited proxy service should simply not exist and they should always be considered the registrant with all the rights and liabilities that go along with being the registrant.  We simply would not recognize any other existing relationship.

We could make this very clear Accredited proxy or registrant and not delve into all the grey areas.

The unaccredited proxy provider would be considered the Registrant in all actions including the URS and UDRP.

I am hoping we can discuss further on the call tomorrow.

Best,

Susan Kawaguchi
Facebook, Inc.

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