[Rt4-whois] GETTING TO CLOSURE: A ROADMAP

Kathy Kleiman kathy at kathykleiman.com
Thu Dec 1 17:09:55 UTC 2011


+1
Kathy

I am in favor of Lynn's proposal.
>
> Option 2.
>
> Rgds,
>
> Michael
>
> *From:*rt4-whois-bounces at icann.org 
> [mailto:rt4-whois-bounces at icann.org] *On Behalf Of 
> *lynn at goodsecurityconsulting.com
> *Sent:* Thursday, December 01, 2011 6:53 PM
> *To:* Emily Taylor
> *Cc:* rt4-whois at icann.org
> *Subject:* Re: [Rt4-whois] GETTING TO CLOSURE: A ROADMAP
>
> 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
>     <mailto:emily at emilytaylor.eu>>
>     Date: Thu, December 01, 2011 10:18 am
>     To: rt4-whois at icann.org <mailto: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.
>
>     Description: Image removed by sender.
>
>
>
>     -- 
>
>
>     Description: Image removed by sender.
>
>     __
>
>     76 Temple Road, Oxford OX4 2EZ UK
>     t: +44 (0)1865 582 811 <tel:%2B44%20%280%291865%20582%20811> . m:
>     +44 (0)7540 049 322 <tel:%2B44%20%280%297540%20049%20322>
>     emily at emilytaylor.eu <mailto:emily at emilytaylor.eu>
>
>     *www.etlaw.co.uk <http://www.etlaw.co.uk/>*
>
>     Emily Taylor Consultancy Limited is a company registered in
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>
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