[Rt4-whois] Proxy provider recommendation 112311 susan draft(2).doc [SEC=UNCLASSIFIED]
Seth M Reiss
seth.reiss at lex-ip.com
Sat Nov 26 16:40:38 UTC 2011
Susan
If the chain of legal responsibilities were clarified, don't you think there
would be an immediate chilling effect on the industry? Only those
registrars willing to go out of business as a result of entering into a
retail proxy relationship with a naughty registrant would continue the
retail proxy practice. The responsible ones I would expect to stop the
practice.
Seth
From: rt4-whois-bounces at icann.org [mailto:rt4-whois-bounces at icann.org] On
Behalf Of Susan Kawaguchi
Sent: Friday, November 25, 2011 7:24 PM
To: Nettlefold, Peter; Emily Taylor
Cc: rt4-whois at icann.org
Subject: Re: [Rt4-whois] Proxy provider recommendation 112311 susan
draft(2).doc [SEC=UNCLASSIFIED]
Hello Peter,
I am not proposing to change the privacy service recommendations although I
did use language from the agreed upon recommendation since I thought it was
a good place to start. Also I do not understand why there is concern with
regulating proxy registrations and no concern with regulating privacy
registrations.
I did raise this before the November 9th call but was not able to
participate on that call so I understand your concern that is this may
appear last minute. II have given this so much thought over the last 6
months and you saw how uncomfortable I was with not addressing the proxy
issues in our discussions in Dakar. I simply do not feel that recommending
to ICANN that they completely ignore the proxy issue is the way we should be
proceeding.
My aim with this recommendation is to target the proxy services run by a
registrar. They have a direct contractual relationship with ICANN. The
argument that we do not understand all the contractual agreements involved
in a proxy service makes sense for deeply integrated proxy services where
the registrant and service have agreed upon contractual elements. The
"retail" proxy service which is offered to anyone who will pay and agreed to
the TOS for the most part are owned or controlled by a registrar. Although,
we have to be careful to not try and regulate any other business the
registrar may enter into the proxy service directly relates to the most
critical information of the domain name registration which should be
controlled by ICANN.
The NORC study estimates that proxy registrations may be used in as much as
25% of the .com registrations. That is a significant number. Currently,
several registrars run proxy services that are responsive and professional.
GoDaddy is the gold standard from my experience. They have very well
defined processes and when you run into a proxy registration that is a
concern I know exactly what I have to do to request the information. The
registrant is protected but if they are acting badly then there is a
standardized process for receiving the website owners information.
Below I pulled out from your email
"Much of this revolves around the question of whether tighter regulation of
proxies is needed, or whether simply removing the endorsement and clarifying
the chain of legal responsibilities would be more effective."
Clarifying the chain of legal responsibilities leaves little recourse for
someone impacted by a domain name serving content with a proxy service
registration on the WHOIS. If the proxy service provider does not want to
reveal the information ( as many refuse to do now) then the only recourse is
to file litigation against the proxy service provider. Then when the WHOIS
record changes midstream, they are forced to go back to court to amend the
complaint. It is extremely burdensome and expensive. There has been some
litigation that has held the proxy service provider legally responsible but
nothing that has had a chilling effect on the industry.
I cannot open James document on my laptop but once I have a copy I will
review his latest revisions.
Best regards,
Susan
From: Nettlefold, Peter [mailto:Peter.Nettlefold at dbcde.gov.au]
Sent: Thursday, November 24, 2011 9:59 PM
To: Emily Taylor
Cc: Susan Kawaguchi; rt4-whois at icann.org
Subject: RE: [Rt4-whois] Proxy provider recommendation 112311 susan
draft(2).doc [SEC=UNCLASSIFIED]
Thanks Emily, that's very useful, and I think I understand where its coming
from.
I have a few follow on questions, as I'm trying to understand the big
picture/strategy, and to try to work through the new proposal fully as this
is a key area of interest for me. To be honest, I'm a bit nervous about
reopening such a major issue so late in the piece, with only limited time to
think through and discuss all the implications. That said, I'm not opposed,
just cautious.
In terms of questions: is the intention to retain our 'privacy'
recommendations from Dakar? i.e. so that we would in effect have three
different arrangements: i.e. privacy, 'known' proxies, and 'unknown'
proxies? I ask this because if we are to recommend the establishment of
parallel 'known proxy' and 'privacy' regimes, we would need to clearly
explain and justify any differences between the two (I note that many of the
recommendations we agreed for privacy services have been adopted for the
proposed proxy recommendations). I expect that a key question we would face
is why we were advocating for two different types of privacy-related
services? In what circumstances are privacy services not sufficient?
Understanding the reason for this may address some of my concerns.
Separate to the question of privacy services, we also need to consider the
implications of endorsing proxy services. In Dakar, we discussed at length
the risks of ICANN explicitly acknowledging (and effectively endorsing) the
practice of completely limiting access to a registrant's identity. I had
thought that was one of the reasons why we agreed that ICANN should not
endorse this practice, and instead that we would argue that:
. the full rights and responsibilities of the registrant should
accrue to the registered name holder; and
. ICANN should endorse and regulate 'privacy' services which could
limit the availability of sensitive personal data, without completely
obfuscating the registrant's identity.
This approach seemed to address the privacy concerns expressed by a range of
stakeholders, and to clarify (perhaps for the first time) the chain of
contractual rights and responsibilities.
Much of this revolves around the question of whether tighter regulation of
proxies is needed, or whether simply removing the endorsement and clarifying
the chain of legal responsibilities would be more effective. In effect, the
new proposal is to advocate the replacement of one mechanism which attempts
to regulate proxies (i.e. the current RAA provisions) with another. The
intent is obviously to have a tighter set of regulations this time, to
reduce gaming/abuse etc. At one level this seems logical, but I am concerned
that by introducing doubt into the chain of rights and responsibilities,
anything we then do will be like trying to patch a leak that we in effect
created. Given that both previous versions of the RAA have tried the
endorsement/regulation route with very limited success, I think we would
need a strong case to propose a third attempt at this approach as the best
way to go. Do we think that this is something we can achieve in practice,
and why is it better than the simpler alternative?
I hope I'm not making this unnecessarily complicated - I just want to make
sure that we don't make a rushed change that has not been fully discussed.
I look forward to the views of other team members on this issue.
Cheers,
Peter
From: Emily Taylor [mailto:emily at emilytaylor.eu]
Sent: Thursday, 24 November 2011 8:30 PM
To: Nettlefold, Peter
Cc: Susan Kawaguchi; rt4-whois at icann.org
Subject: Re: [Rt4-whois] Proxy provider recommendation 112311 susan
draft(2).doc [SEC=UNCLASSIFIED]
Hi Peter
As it's Thanksgiving, our US colleagues will (should) be offline for a
couple of days.
My understanding from last night's call is that our proposal is to combine
these proxy recommendations with the ones from Dakar. In other words,
instead of saying "we never acknowledge proxies" we say this. Susan
explained that they are currently working on defining what is meant by a
proxy, and as you rightly point out there are different flavours of proxy.
There is the "deep" arrangement based on an ongoing trusting relationship
(eg solicitor, client) where a proxy might not be obvious. My understanding
is that we're not attempting to lift the veil on these. They are not viewed
as problematic.
What is viewed as within the ambit of these new draft recommendations are
the higher volume, commercialised proxy services, where there is not really
a pre-existing relationship between registrant and proxy provider, but this
is a low cost add on at the point of registration. The two parties don't
really know each other that well. These are the ones we're hoping to
describe in our definitions, and they are the target of these
recommendations.
I hope that this makes it clear, but obviously I do recommend you listen to
Susan's description of their thinking from the audio when it's up.
Thanks
Emily
On 24 November 2011 02:32, Nettlefold, Peter <Peter.Nettlefold at dbcde.gov.au>
wrote:
Hi Susan and all,
Thanks very much to all who worked on this new series of recommendations.
I'm sorry I missed the teleconference this morning, but just wanted to see
if I understand this proposal correctly.
In short, is this a supplement to the position we agreed in Dakar? i.e. will
the situation generally be that the registered name holder assumes all
rights and responsibilities (as we discussed in Dakar), but in a special
subset of cases (i.e. where the registrar clearly knows that a 'proxy' is
being used) then some special rules apply?
Or to put it another way, will we be recommending that there should be
special new rules for 'known' proxies (however defined), and in all other
cases we do not acknowledge proxies?
I'm sorry if this was discussed this morning, but I'm just trying to
understand the position.
As there isn't a recording up yet that I've seen, any advice on whether
other team members have already commented on this would be appreciated.
Cheers,
Peter
From: rt4-whois-bounces at icann.org [mailto:rt4-whois-bounces at icann.org] On
Behalf Of Susan Kawaguchi
Sent: Thursday, 24 November 2011 6:18 AM
To: rt4-whois at icann.org
Subject: [Rt4-whois] Proxy provider recommendation 112311 susan draft(2).doc
Hello All,
I apologize for the delay in sending this and that it is still in rough
draft. The attached document contains Kathy's revisions and comments to my
original proposed recommendation. I have added proposed definitions for
the terms we are struggling with. These came out of discussions between
James and I.
I feel that we must provide a clear recommendation on the proxy issue but I
personally seem to keep moving towards drafting policy. I am hoping we will
have time to discuss on the call today as I have several questions for the
team.
Susan
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