[Rt4-whois] GETTING TO CLOSURE: A ROADMAP

Thu Dec 1 16:57:30 UTC 2011

I second Lynn, path #2 but without any given definition?

And I second Emily about the (hard and productive) work being done
specially in the last days or weeks. What a Team.

Omar

2011/12/1 <lynn at goodsecurityconsulting.com>

> I am in favor of #2:  adopt the text drafted by Susan and James which
> includes good practices.
> This is a good and fair compromise and will make a realistic step forward
> in improving the abusive activities
> which ultimately harm everyone in the domain name industry.
>
> As an independent expert on this team, I feel it is important for us to be
> mindful that the AoC review requirement is an alternative to formal
> government regulation and it is a form of self-regulation.  I have fully
> supported that approach.  But it will fail if we do not consider the public
> interest and the trend of escalating fraud on the Internet.
>
> Lynn
>
>
> -------- Original Message --------
> Subject: [Rt4-whois] GETTING TO CLOSURE: A ROADMAP
> From: Emily Taylor <emily at emilytaylor.eu>
> Date: Thu, December 01, 2011 10:18 am
> To: rt4-whois at icann.org
>
> Hi
>
> I went to bed last night thinking that we were nearly in agreement on the
> proxy recommendations that James, Susan and Kathy have been working on over
> the past weeks.
>
> In the middle of the night, I awoke to find new text on the table.
>
> You all know that our cut off date was yesterday, and we are now on
> negative time.  However, I do want to go through the time zones so that we
> all have a chance to consider the options.
>
> Broadly, we have three alternatives.
>
> 1. Adopt the very brief text agreed in Dakar and no more
> 2. Adopt the relatively stable text drafted by that small group which
> includes good practices
> 3. Adopt the new text, drafted last night by Seth on behalf of another
> small team.
>
> We act by consensus.  But we also have a deadline.  I'm therefore going to
> call it before I go to sleep tonight, and in default of an alternative
> agreement we will have to go back to what we agreed in Dakar.  I know that
> some people are not happy with it, but it has a simplicity, and avoids
> confusion about whether or not the good practices conflicts with the idea
> of liability.
>
> Alternatively, we can adopt different text, but it has to be by
> consensus.  Remember, folks, that's difficult to achieve, and leaves
> everyone feeling a little bit frustrated, and like they could have got more
> if they pushed harder.
>
> Please try to bear in mind that we have a very, very strong full report.
> This is one part of the whole puzzle, which has to be seen within its own
> context.  There will be further studies on proxies/privacy.  There will be
> another review team on WHOIS which will kick off in less than 2 years.  To
> speak for a moment in support of voluntary good practices, this is a well
> known regulatory step.  It's what you do when you're not happy with the
> current situation (check), but you're not quite sure what will be an
> effective regulatory intervention (check).  So, you explore the landscape -
> as I think the draft recommendations (alternative 2 below) very eloquently
> do.  I should emphasise that good practices are not the final word.  They
> are an interim plug, a step in the right direction.  If, having gone
> through that, Bill and others are right and it's all still a mess, that's
> when you go for the next incremental step - but the important bit is,
> industry has been given a chance to clean out the stables after being told
> in no uncertain terms that there's a problem . That's where we are now.
>
> The third choice is that we adopt the new text, maybe with tweaks or
> changes.  If that's what we're doing, I would be failing in my duties as
> your Chair if I did not set some deadline for this.  We have known the
> issues for a long time, we have been wrestling with them, and reaching
> consensus is hard.  I don't think that this is a case of "just a bit more
> time", but I'm very willing to be proved wrong.
>
> So, my challenge to you is - tell me what you have *all* agreed on
> proxies by 10pm UTC.  If the answer is "nothing" we go with what we agreed
> in Dakar.
>
> Whatever the outcome, we have done a wonderful job on this report.  Take
> it in its entirety, it represents a lot of work, and a lot of willpower and
> cooperation, plus - importantly - a willingness to step outside of one's
> individual, commercial interests and think about the public interest.  I
> have been marvelling at the sheer energy that has been focused on this
> mailing list and the incredible progress we have made since the weekend
> (remember, I'm a Brit, not American, so I don't say these sort of things
> easily!).
>
> Keep up this discussion.  But please focus your thoughts and exchanges on
> the give and take that's necessary for consensus.
>
> To assist those who may not be fully up to speed, the text for the three
> alternatives are below.  Whatever happens, we are closing this discussion
> in just under 7 hours.  Good luck!
>
> Kind regards
>
> Emily
>
> ---------
>
> Alternative 1
> the text we agreed in Dakar on proxy definition and proxy liability
>  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
> Alternative 2
> The text on best practices worked on by Susan, James and Kathy last night
> (latest version)
>  *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.
>
>
> Alternative 3
> Seth's proposal.
>  Data Access- Proxy Service
>
> 1.      The Review Team considers a Proxy Service as a relationship in
> which
> the registrant is acting on behalf of another. The WHOIS data is that of
> the
> agent/proxy service and the agent/proxy service alone obtains all rights
> and
> assumes all responsibility for the domain name and its manner of use.
> 2.      ICANN should clarify that any registrant that may be acting as a
> proxy service for another is in all respects still the registrant and, in
> ICANN's view, should be held fully responsible for the use of the domain
> name including for any and all harm that results from the use of the domain
> name.
> 2.      Because of ICANN's position on proxy services to date, which
> tolerates the proxy service industry that has arisen and which through RAA
> provisions gives recognition and attempts to regulate that industry, has
> been used by courts and others to allow proxy services to escape liability
> for bad acts of the proxy service customers, ICANN should either delete or
> amend those provisions of the RAA that can or have been used to allow proxy
> services to escape liability.
> 3.      The Review Team acknowledges that there may be legitimate reasons
> for the occasional use of a proxy service, as for example to protect a
> valuable trade secret at product launch. At the same time proxy services
> should not be viewed or used as a substitute for privacy services that are
> designed to shield an individual's personal contact information.  The
> legitimate use a proxy service would be the exception and not widespread.
> 4.    A proxy service industry willing to accept full risks and liabilities
> for the manner in which domain names through its service will be used will
> take the necessary precautionary measures, in its relationship with its
> customers, such that domain names so registered are unlikely to be misused
> and, if misused, a remedy for those victimized will more likely be
> available.
>
>
> --
>
>
>
>
> *
> *
>
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> emily at emilytaylor.eu
>
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>
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