[Rt4-whois] streamlined proxy recommendation language

[Kathy Kleiman]

Great comments, Seth. I defer to Susan and James, as the experts on this 
material.
Best,
Kathy

:
>
> 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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