Privacy & Proxy Services Accreditation Issues
On page 13 of your executive summary http://gnso.icann.org/en/issues/raa/ppsai-initial-executive-summary-05may15-en.pdf you ask for community input on "What (if any) should the remedies be for unwarranted Publication?" To avoid any hint of rudeness, I say the following with a smile.Let me reassure you that you don't have to worry your over-wrought over-lobbied heads on remedies. Remedies will be provided for you! Many remedies! Indeed remedies already have been provided for you, in jurisdictions such as Russia, Germany, and various other EU countries. Remedies including custodial prison sentences and large fines, even before the forthcoming GDPR is enacted. Then there are civil remedies for irritated or inconvenienced data subjects, such as class actions whether or not encouraged by the State (as in Germany), or pro bono mass litigation web services written by teams of regrettably over-excited lawyers and IT people. Don't worry, the Requestors are home free and will laugh all the way to the bank, or to whatever less savoury activity floats their boats. And ICANN'll be safe enough from criminal action so long as your directors stay holed up in LA, Istanbul, and Singapore and avoid anywhere in the EU (just watch out for those stray EU-wide European Arrest Warrants). It's the "P/P service providers" that'll take the heat up-front. But we mustn't forget civil remedies for fun and profit aimed directly at ICANN. Insofar as you have any money in your piggy bank (or cash flow), you're painting a target on your back for esoteric torts such as (in my jurisdiction) "unlawful means conspiracy". A tort originally invented to pursue and financially punish commercial piracy. Meaning traditional piracy, you know the kind with ships and cannons and peg legs and parrots: I'm sure both ICANN and Requestors alike will relish the exquisite irony here of casting themselves in the role of traditional pirates. This is the way this particular anti-piracy tort can be used to burn ICANN if and when it plays pirate. Basically, if without the contractual or other compelled adoption of your policies a service provider would not have broken the law, you're in the "dock" anyway as a sole or joint defendant. Honest belief and even legal advice, if any, you may hold that your policies are lawful cannot and will not protect you. And the service providers will sing like canaries. Everybody loves a cut-throat defense: it's just relaxing fun, and all the scum co-defendants go down. So this is a freebie. The reason I've bothered to write this comment is I don't want ICANN to bleat, like every other scum co-defendant after the fact, "but nobody told us anything like this might happen". Give us a vomit break. And next time you get wined and dined and not-bribed by lobbyists: it won't hurt to take a long spoon. Nothing said here is legal advice or may be construed as such. -- Stuart Ritchie (sent from my personal email) |