[Rt4-whois] streamlined proxy recommendation language

[Seth M Reiss]

Thank you Kathy for breaking this out.  I have not been good about reviewing
the entire document.

 

To respond to Peter's question about what would be legally enforceable, I
think if you look at bullet number 6, if this bullet was implemented in a
very clear and unambiguous way, by itself and without some of the other
material being proposal, then I think there would be reasonable expectation
that national courts would hold the registrant proxy service fully
responsible for harm caused by a website hosted at the domain name at issue.
In other words, the Ninth Circuit decision that Susan highlighted would have
been decided differently.

 

Once you introduce definitions concerning affiliates, retail services and
different flavors of proxy services, the cheap ones with flimsy
relationships, and the expensive ones with fiduciary type relationships, it
will appear to the court that you do not really mean what you saying in
bullet number 6.  This will confuse the courts (and the public) and the
registrant proxy services is more likely to be able to weasel out of being
held liable.

 

The current proposal on the table suggests to me a somewhat more complicated
model whereby the registrant proxy service is fully liable for the use of
the domain name but can shield that liability by adopted and fully complying
the a specific set of reveal and relay processes etc.  I voluntary set of
best practices would not do this, but a mandatory set of provisions to
qualify a proxy service for a "safe harbor" would.  Such a safe hard model
would in my view be more difficult to implement and is likely to give rise
to a certain amount of uncertainty and inconsistent outcomes even if
prudently implemented.  But this also assumes that we need to have a proxy
service in which proxies may shield themselves from liability.  In all our
discussions, I have still not heard a persuasive argument why a proxy
service industry that can shield itself from liability is necessary or good
or appropriate. 

 

Seth 

 

 

From: rt4-whois-bounces at icann.org [mailto:rt4-whois-bounces at icann.org] On
Behalf Of Kathy Kleiman
Sent: Wednesday, November 30, 2011 12:24 PM
To: rt4-whois at icann.org
Subject: [Rt4-whois] streamlined proxy recommendation language

 

Hi All,
I feel like I am sending altogether too many emails today. Sorry :-)!
Anyway, here's one more.  I worked with James, a little, and Susan, more, on
streamlining the Proxy recommendations to look, sound and flow like the
Privacy recommendations. Of course, proxy is voluntary, and privacy is a
requirement, but the rest is fairly close. 

They are below and attached. If you like them, we'll send them on to Alice
for inclusion. Note: the definitions went into a footnote which should be
easy to see as it will be quite extensive.

here's the text:

Data Access- Proxy Service 

1.      ICANN should facilitate the review of existing practices by reaching
out to proxy providers to create a discussion which sets out current
processes followed by proxy service providers.

2.      Registrars should be required to disclosure their relationship with
any Affiliated Retail proxy service provider to ICANN. 

3.      ICANN should develop and manage a set of voluntary best practice
guidelines for appropriate proxy services [footnote 1] consistent with
national laws. These voluntary guidelines should strike an appropriate
balance between stakeholders with competing but legitimate interests. At a
minimum this would include privacy, law enforcement and the industry around
law enforcement. 

Such voluntary guidelines may include:

+ Proxy services provide full contact details as required by the Whois

+ Publication by the proxy service of its process for revealing and relaying
information

+ Standardization of reveal and relay processes and timeframes, consistent
with national laws

+ Maintenance of a dedicated abuse point of contact for the proxy service
provider

+ Due diligence checks on licensee contact information. 

5. ICANN should encourage and incentivize registrars to interact with the
retail service providers that adopt the best practices.

6. For the avoidance of doubt, the WHOIS Policy, referred to in
Recommendation 1 above, should include an affirmative statement that
clarifies that a proxy means a relationship in which the Registrant is
acting on behalf of another. The WHOIS data is that of the agent, and the
agent alone obtains all rights and assumes all responsibility for the domain
name and its manner of use.

Footnote 1 (all the remaining text)
As guidance to the Community and as useful background for the Proxy Service
Recommendations, the Review Team provides its working definitions of proxy
service and different types of proxy service providers:

- Proxy Service - a relationship in which the registrant is acting on behalf
of another The WHOIS data is that of the agent and the agent alone obtains
all rights and assumes all responsibility for the domain name and its manner
of use. [KK: is this the definition we are using in other places in the
Report?]

- Affiliated Registrar - another ICANN accredited registrar that operates
under a common controlling interest (2009 Registrar Accreditation Agreement,
Section 1.20)

- Affiliate retail proxy service provider - entity operating under a common
controlling interest of a registrar.

- Retail proxy service provider - proxy service with little or no knowledge
of the entity or individual requesting the service  beyond their ability to
pay and their agreement to the  general terms and conditions.

- Limited proxy service provider - proxy service for an entity or individual
in which there is an ongoing business relationship bound by a contract that
is specific to the relationship.



--- end
same text attached
Kathy



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