[Gnso-rds-pdp-6] DT6 Answers to Questions - First Draft for DT Review

Thu Mar 1 19:37:13 UTC 2018

Thanks, Farzaneh and Griffin for your input.  I encourage others to respond to your comments.

Keeping in mind that my roll is to coordinate our task, I am going to make some points and ask some questions that are intended to encourage further discussion.  Please do not take my comments as pushing one view over another.

First, from a process point of view, remember that our task is to answer the three questions, not to determine whether legal actions is a legitimate purpose for processing any RDS data.  The WG as a whole will debate that after we get a better understanding of the proposed legal actions purpose.  The DTs are not presently asked to redo the definitions so I suggest that we accept them as they are for now with the understanding that they may have to be revisited later when the WG tries to decide whether legal actions is a legitimate purpose for processing any RDS data.

See below for some additional input.

Chuck

From: farzaneh badii [mailto:farzaneh.badii at gmail.com] 
Sent: Thursday, March 1, 2018 9:57 AM
To: Griffin Barnett <Griffin at winterfeldt.law>
Cc: Chuck <consult at cgomes.com>; gnso-rds-pdp-6 at icann.org
Subject: Re: [Gnso-rds-pdp-6] DT6 Answers to Questions - First Draft for DT Review

Hi Chuck and Griffin,

The purpose of legal action should be in line with ICANN mission.

[Chuck Gomes] Part of ICANN’s mission is to coordinate activities associated with domain names, so if there is a possible legal action associated with a domain name, wouldn’t that be related to ICANN’s mission?

This does not appear in the document especially the additions provided by Griffin.

[Chuck Gomes] As I said above, it is not our job at this point to decide whether legal actions are a legitimate purpose for processing any RDS data, so I don’t see how putting that in this document is relevant.

ICANN should not facilitate content takedown and we have Bylaws provisions that certainly attest to that. Griffin states that:" the purpose would be to determine the identity of the web hosting provider associated with any content located at the domain name and what is the hosting provider's jurisdiction." There is no need to identify web hosting providers as long as it does not relate to ICANN mission and it will be against ICANN bylaws. 

[Chuck Gomes] I don’t think that is what Griffin said.  Here is what I think he said and he can correct me if I am wrong: ‘For the proposed legal actions purpose, the hosting provider and its jurisdiction should be identified so that it could be contacted if needed.’  That is a direct answer to the first question.  We in this DT and the full WG can debate whether the hosting provider should be added to answer for question 1.  I can personally see some problems with that: 1) hosting providers do not necessarily have any contractual relationship with registrars, so it would be difficult for registrars to fulfill such an RDS requirement unless they provide that service for the registrant; 2) domain name hosting is not a required service for registrars.

Also I think the definition is frankly too broad and I think we mentioned this in Abu Dhabi.

[Chuck Gomes] See my comment above.

Definition: The “legal actions” purpose of RDS includes assisting certain parties( or their legal

representatives, agents or service providers) to investigate and enforce civil and criminal laws, protect

recognized legal rights, address online abuse or contractual compliance matters, or to assist parties

defending against these kinds of activities, in each case with respect to all stages associated with such

activities, including: investigative stages; communications with registrants, registration authorities or

hosting providers, or administrative or technical personnel relevant to the domain at issue; arbitrations;

administrative proceedings; civil litigations (private or public); and criminal prosecutions.

All the abovementioned activities should take place to help ICANN carry out its mission and nothing more. 

[Chuck Gomes] In fulfilling its mission, ICANN has to obey applicable laws as do registries and registrars.  Obeying a particular law may or may not help ICANN carry out its mission but it would still have to be obeyed.

Additionally, we need to clarify what we mean by legal authority. 

[Chuck Gomes] Let’s not get hung up on that here.  In implementation that would have to be done.

Best 

Farzaneh 

Farzaneh 

On Thu, Mar 1, 2018 at 12:06 PM, Griffin Barnett <Griffin at winterfeldt.law <mailto:Griffin at winterfeldt.law> > wrote:

Thanks for the reminder Chuck.  Please find some comments in the attached.

Best,

Griffin 

  _____  

 <https://www.winterfeldt.law/>  <https://www.winterfeldt.law/>  <https://www.winterfeldt.law/> 

Griffin M. Barnett

Associate

Winterfeldt IP Group

1200 17th St NW, Ste 501

Washington, DC  20036

 <mailto:griffin at winterfeldt.law> griffin at winterfeldt.law

+1 202 759 5836 <tel:(202)%20759-5836> 

From: Gnso-rds-pdp-6 [mailto:gnso-rds-pdp-6-bounces at icann.org <mailto:gnso-rds-pdp-6-bounces at icann.org> ] On Behalf Of Chuck
Sent: Thursday, March 1, 2018 12:03 PM
To: gnso-rds-pdp-6 at icann.org <mailto:gnso-rds-pdp-6 at icann.org> 
Subject: [Gnso-rds-pdp-6] DT6 Answers to Questions - First Draft for DT Review
Importance: High

It would be very helpful if each of you could provide your first thoughts on the attached draft TODAY.  Note that it is just slightly over one page long.

Chuck

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