[Rt4-whois] streamlined proxy recommendation language

[Smith, Bill]

Well-said Seth.

To the list...

I don't believe that a liability-shielding proxy system is in the public interest. It is certainly in the interest of the service provider but I see no benefit to the licensee or to the public.

The proxy, sitting as it does between the licensee and those referencing the Domain Name (the public), chooses how and/or when to pass information. Presumably these determinations are made according to some agreement between the proxy and licensee. ICANN has no and should not have any interest in the terms on these agreements. It, and the public, are not a party to them.

ICANN does have a direct contractual relationship with Registrars and Registries and indirectly, through Registrars to Registrants; by specifying terms that must appear in any Registrant agreement. It is through these contracts that ICANN can and does control the entries in the Domain Name System and it is through these contracts that ICANN could influence the behavior of proxy services, even without specifically mentioning them.

If we stick to the model we labored over in Dakar, Registrants are Registrants. Registrants may choose to shield certain bits of PII through a privacy service. This information can be revealed where and when appropriate (I don't recall the specific language we adopted.) Privacy services might need to be recognized or certified.

SLAs can be inserted into Registrant (and other) agreements indicating acceptable response times to certain specific requests. Failure to honor the SLAs results in consequences of increasing severity up to and including *mandatory* revocation (or decertification).

Proxies then become Registrants and have all the rights and responsibilities of a Registrant. Should a proxy wish to limit its liability, it does so by separate contract with its licensees. Failure by a proxy, or a licensee through a proxy, to honor the SLAs of the Registrant agreement results in the "standard" consequences, including mandatory revocation of the registered name.

This is a system that would work, would avoid the pitfalls of the current ad hoc mechanisms, and would provide less maneuvering room for legal opinion. Liability would flow according to contract rather than to the least contractually protected entities, registrants and the public, as is current practice.

On Nov 30, 2011, at 3:09 PM, "Seth M Reiss" <seth.reiss at lex-ip.com<mailto:seth.reiss at lex-ip.com>> wrote:

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> [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<mailto: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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