[Rt4-whois] The New Proxy Language

Thu Dec 1 19:17:23 UTC 2011

This is acceptable to me as well.

On Dec 1, 2011, at 10:52 AM, "Seth M Reiss" <seth.reiss at lex-ip.com> wrote:

> OK, guys, I finally woke up.  But now I kind of wish I had not!
>
> I am not entirely comfortable with what I wrote (option 3). I continue to
> agree with Bill's analysis and thinking, but I am also concerned that the
> statements I wrote go well beyond what our Team was tasked to do.  It goes
> beyond WHOIS accuracy into the realm of security etc.  But so does James'
> and Susan's proposal (option 2).
>
> The Dakar statement (option 1 as most recently modified by Emily) comes
> closest to us staying within our purview.
>
> Note that Susan agrees that language should be removed from the RRA and
> proxy service provider should be responsible for the domain name.  So
> perhaps this could a bullet point under Dakar.
>
> Or better yet, how about this to make the group happy, or at least happier.
>
> How about the Dakar statement as most recently modified by Emily go into the
> recommendations. Everything else, some of proposal 2 and maybe a bit of
> proposal 3, or perhaps just the statement Susan made about language being
> removed from the RAA, go into the discussion.  I agree with Bill that a
> voluntary set of best practices cannot reach the goal of eliminating
> irresponsible proxy services. But the discussion section could indicate this
> was one of the ideas that was considered by our team as a possible solution
> and that is something that the community may wish to follow up on.
>
> Finally, regarding the DMCA, the United States Congress, in its wisdom,
> decided that web hosts and neutral bill boards and the like should be given
> a level of immunity to function and so adopted the DMCA and other measure to
> provide safe havens from copyright infringement claims and other claims for
> content posted by others if they registered as an agent and carefully
> followed a number of specific take down/put up practices.  The process is
> mandatory, carefully detailed and all governed by a centralized law that is
> consistent across the national territory. We, unfortunately, do not operate
> in a landscape of consistent laws, plus we are not a legislature, plus (as
> Bill has reiterated on several occasions) a voluntary practice will not get
> us there.
>
> Seth
>
> -----Original Message-----
> From: rt4-whois-bounces at icann.org [mailto:rt4-whois-bounces at icann.org] On
> Behalf Of Susan Kawaguchi
> Sent: Thursday, December 01, 2011 8:11 AM
> To: Smith, Bill
> Cc: rt4-whois at icann.org
> Subject: Re: [Rt4-whois] The New Proxy Language
>
> Yes I agree a registrant is a contracted party I guess I am use to seeing so
> much bad behavior by registrants that I do not think of them that way.
>
> I still do not see our two recommendations as polar opposites.
>
> I agree the language in the RAA should be removed and the proxy service
> provider should be responsible for the domain name.
>
> But that does not exclude the need for best practices in this industry and
> if we can get movement in the right direction along with calling for the
> proxy service providers to be responsible it is a win win situation.
>
> (I am not comparing the DMCA to this situation but I think this is a good
> example)
> When the DMCA was put into US law it required interpretation and best
> practices were developed over a period of time.  In my opinion eBay took the
> lead and put in place the VeRO program which went beyond some of the
> requirements.  Many other companies followed their lead and you will see
> pieces of the VeRO program in many companies processes.
>
> I think several registrars have taken a similar path with their affiliate
> proxy services and established procedures that are good.
>
> Why can't we advocate for both positions?
>
> I think we are in agreement that neither approach will be successful without
> proactive ICANN compliance measures, either to police observance of best
> practices, in the first approach, or to press registrars to cancel
> registrations of proxy services that do not fulfill their contractual
> obligations as set forth in the RAA.  A well resourced and credible
> compliance program is essential to reforming the unacceptable status quo in
> this area.
>
>
> -----Original Message-----
> From: Smith, Bill [mailto:bill.smith at paypal-inc.com]
> Sent: Thursday, December 01, 2011 9:46 AM
> To: Susan Kawaguchi
> Cc: James M. Bladel; rt4-whois at icann.org
> Subject: Re: [Rt4-whois] The New Proxy Language
>
> Susan,
>
> Isn't everyone a contracted party in this ecosystem? Registrars and
> Registries with ICANN and Registrants with Registrants (with required terms
> from ICANN).
>
> I believe we need SLAs in each of the agreements that put some teeth into
> the compliance provisions. For example, the current RAA language says that
> failure to correct WHOIS data *may* result in revocation of the Domain Name
> (or something similar to that).
>
> Action is voluntary on the part of the Registrant and Registrar with the
> public paying the cost, much like with toxic waste. This isn't a direct cost
> but indirect, and getting larger all the time. I sincerely doubt that a
> voluntary code, though admirable, will mitigate these costs.
>
> If we have SLAs in each of the agreements, then failure by any party to
> abide by them results in action and/or penalties up to and including loss of
> name. The current system doesn't, while threatening such an eventuality
> rarely reaches that point as we've heard.
>
> If ICANN wants to honor the AoC with respect to WHOIS, it firmly believe it
> needs to shift from the voluntary mechanisms that don't work to a simple
> though comprehensive set of mandatory mechanisms that will work. These
> mechanisms should exist outside of any "at law"remedies but should be in
> concert with them.
>
> I'll think about adding the VC to 4. My gut reaction is that it will still
> allow too much legal room if/when the legal system is required.
>
> Bill
>
> On Dec 1, 2011, at 9:04 AM, "Susan Kawaguchi" <susank at fb.com> wrote:
>
>> Hi Bill,
>>
>> I agree with most of what is in your and Seth's recommendation but do not
> understand how an SLA will work with non-contracted parties.
>>
>> What if we added the voluntary best practices to #4?
>>
>> Susan
>>
>> -----Original Message-----
>> From: Smith, Bill [mailto:bill.smith at paypal-inc.com]
>> Sent: Thursday, December 01, 2011 7:44 AM
>> To: James M. Bladel
>> Cc: Susan Kawaguchi; rt4-whois at icann.org
>> Subject: Re: [Rt4-whois] The New Proxy Language
>>
>> I have no problem with folks not being "on board". However, we did agree
> to language in Dakar in essence saying that ICANN should avoid mentioning
> proxies in the RAA. I realize that some may not have been fully on board
> with that, and there have been suggestion to change our position.
>>
>> From my perspective, the changes are from the Dakar position to the
> Voluntary Code proposal.
>>
>> I've pointed out how the VC can and likely will be circumvented,
> especially by "bad actors". If someone can demonstrate a way that the VC
> deals with this issue and avoids a return to the current state, I'm all
> ears.
>>
>> One way for the VC to work is to have a set of SLAs that mandate action in
> response to non-compliance to the SLAs. I don't see a mention of that in the
> VC and I'd want to understand exactly what we're talking about regarding
> times for roundtrip reveal/relay and the consequences for failure to respond
> in a timely fashion.
>>
>> On Dec 1, 2011, at 7:23 AM, James M. Bladel wrote:
>>
>> Agree with Susan.  These are very significant changes coming very late in
> the game.
>>
>> J.
>>
>> -------- Original Message --------
>> Subject: Re: [Rt4-whois] The New Proxy Language
>> From: Susan Kawaguchi <susank at fb.com<mailto:susank at fb.com>>
>> Date: Thu, December 01, 2011 8:58 am
>> To: Kathy Kleiman <kathy at kathykleiman.com<mailto:kathy at kathykleiman.com>>
>> Cc: "rt4-whois at icann.org<mailto:rt4-whois at icann.org>"
> <rt4-whois at icann.org<mailto:rt4-whois at icann.org>>
>>
>> Hi Kathy
>>
>> I am not onboard with Bill and Seth's recommendation but I am willing to
> explore this direction.
>>
>> Susan
>>
>> Sent from my iPhone
>>
>> On Dec 1, 2011, at 6:18 AM, "Kathy Kleiman"
> <kathy at kathykleiman.com<mailto:kathy at kathykleiman.com>> wrote:
>>
>>> But what James and Susan did so brilliantly, and for the first time in
>>> history, was to begin to bring the proxy services into the ICANN tent
>>> and into sight. The idea of disclosing relationships, sharing ownership
>>> and contractual relationships, is an enormous step forward. I think we
>>> are losing something now...
>>>
>>> Kathy:
>>>> My preference is to replace the Voluntary Best Practices Guidelines. I
> think there is useful information in that language to guide development of
> SLAs regarding Registrant responsibilities and response times so would hate
> to see that work "tossed".
>>>>
>>>> Seth's language is an attempt to "flesh out" the simple text we had in
> Dakar, that said ICANN should remove reference to proxy services from the
> RAA. I think he's done a good job, albeit perhaps a first cut, at doing that
> and getting a conversation going on the practical implications of, let's
> call it the Dakar proxy compact.
>>>>
>>>> As I recall, one of the reasons we decided to recommend removing proxies
> from the RAA is that no matter how hard we, or ICANN tries to control or
> regulate the proxy business, anyone can operate such a service outside of
> the control of ICANN or the community. They simply register names and act on
> behalf of someone else.
>>>>
>>>> What we, asa community, can do is develop some policies that set out
> what is expected of all parties, including Registrants and have
> consequences, mandatory in some cases, for failure to comply with the
> policies. The consequence of last resort is revocation of the name.
>>>>
>>>> These policies wouldn't take the place of legal action, but they would
> fill the void where Registrants, or their proxies, are non-responsive.
>>>>
>>>> The alternative is the voluntary code, but we know that can be avoided,
> and letting the courts handle the situation... but that's basically where we
> are today so I don't see how a code, voluntary or not helps in the end.
>>>>
>>>> On Dec 1, 2011, at 5:32 AM, Kathy Kleiman wrote:
>>>>
>>>>> Hi All,
>>>>> What a night! I can see the 24*7 party of the WRT continued. Thanks so
> very much!
>>>>>
>>>>> Regarding the language below, could someone be an expert guide? Is it a
> replacement of the whole of the Proxy Recommendations, or in addition to the
> Voluntary Best Practices Guidelines (which I really liked)
>>>>>
>>>>> Otherwise, I am thinking and researching. I think this is a big change
> below, and I am not keen on #3 at all. Many, many people use proxy services
> for many, many things, and the Recommendations section seems an odd place to
> put a value judgement on that.
>>>>>
>>>>> Otherwise, there are some fascinating legal concepts, and my brain
> already hurts!
>>>>> Thinking hard first thing in the AM and still reviewing.
>>>>> I would like to know what James thinks,
>>>>> Kathy
>>>>>
>>>>>> 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.
>>>>>>
>>>>> _______________________________________________
>>>>> Rt4-whois mailing list
>>>>> Rt4-whois at icann.org<mailto:Rt4-whois at icann.org>
>>>>> https://mm.icann.org/mailman/listinfo/rt4-whois
>>>>
>>>> _______________________________________________
>>>> Rt4-whois mailing list
>>>> Rt4-whois at icann.org<mailto:Rt4-whois at icann.org>
>>>> https://mm.icann.org/mailman/listinfo/rt4-whois
>>>
>>>
>>> --
>>>
>>>
>>>
>>> _______________________________________________
>>> Rt4-whois mailing list
>>> Rt4-whois at icann.org<mailto:Rt4-whois at icann.org>
>>> https://mm.icann.org/mailman/listinfo/rt4-whois
>>
>> _______________________________________________
>> Rt4-whois mailing list
>> Rt4-whois at icann.org<mailto:Rt4-whois at icann.org>
>> https://mm.icann.org/mailman/listinfo/rt4-whois
>> _______________________________________________
>> Rt4-whois mailing list
>> Rt4-whois at icann.org<mailto:Rt4-whois at icann.org>
>> https://mm.icann.org/mailman/listinfo/rt4-whois
>>
>
> _______________________________________________
> Rt4-whois mailing list
> Rt4-whois at icann.org
> https://mm.icann.org/mailman/listinfo/rt4-whois
>