[Gnso-rpm-providers] Redline Edits to Providers ST's URS Proposals - Review by COB Fri

[Justine Chew]

Phil,

Yes, what you propose is acceptable.

All,

In response to the thread:

1. I'm not entirely sure that all Examiners are members a of Bar (in their
respective countries) but a revisit of the Providers' responses will
probably confirm this one way or other.

2. I admit that the issue of conflict of interest is a dicey one since I
personally believe establishing presence or absence of it is a subjective
exercise. But requiring the publishing and updating of Examiner CVs will
certainly help with the checking for potential conflicts of interest (by
Providers and parties alike).

3. This is suggested as an action item for the WG, not even a
recommendation. I think the fact that "non-performance or malfeasance" is
stated in Procedure 7.3 which also suggests that the Providers are free to
determine such incidences on a case by case basis, merits some
consideration by the WG. And as Brian suggests, there is ambiguity with the
language in Procedure 7.3.  Are we encroaching into the management
practices of Providers? Perhaps, but I think the WG should consider and
make a conscious decision whether or not some operational fix or policy
change is needed in this respect.  Plus, doesn't having transparent
Examiner practice standards help to also protect Examiners against
'inappropriate' action by Providers (action which at this point, is
seemingly left to the discretion of Providers).

4. Again, I merely wanted to highlight the elements to be "read into" this
proposed action item when it is deliberated by the WG so that there is
proper context. But I have a feeling this would be achieved anyway on 2
counts: (1) that the WG's attention is drawn to the Super Consolidated URS
Topics Table where context is captured (as opposed to the summary document
which the subteam worked off); and (2) that two of our WG co-chairs have
expressed here some contextual consideration of this action item.

I'm happy to see it move forward to the WG for deliberation.

Regards,

Justine
-----


On Fri, 31 Aug 2018 at 04:28, Corwin, Philip via Gnso-rpm-providers <
gnso-rpm-providers at icann.org> wrote:

> Here's my personal suggestion on how to handle this.
>
> At a minimum, during consideration of sub-team recommendations for
> operational and policy fixes, the question of whether there should be a
> recommendation on examiner removal standards should be raised with the WG.
> That could be on the general recommendation I formulated or something
> similar.
>
> Meantime, if Justine wants to submit her more detailed proposal as an
> individual proposal for WG consideration she can do so and we can see if it
> gains adequate support for inclusion in the Initial Report. The procedure
> established by the co-chairs contemplates that there may be more than one
> proposal on the same subject.
>
> Is that acceptable?
>
> Philip S. Corwin
> Policy Counsel
> VeriSign, Inc.
> 12061 Bluemont Way
> Reston, VA 20190
> 703-948-4648/Direct
> 571-342-7489/Cell
>
> "Luck is the residue of design" -- Branch Rickey
>
> -----Original Message-----
> From: Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces at icann.org] On
> Behalf Of Michael Karanicolas
> Sent: Thursday, August 30, 2018 3:52 PM
> To: Susan Payne <susan.payne at valideus.com>
> Cc: gnso-rpm-providers at icann.org
> Subject: [EXTERNAL] Re: [Gnso-rpm-providers] Redline Edits to Providers
> ST's URS Proposals - Review by COB Fri
>
> Hi,
>
> Absence of evidence is not evidence of absence, particularly in the
> context where accurate information about the backgrounds of examiners isn't
> always readily available, and the exposure of conflicts of interest are
> heavily reliant on self-reporting. I think it would be naive to assume that
> this has never, and will never come up. If you're going to have any
> standards of conduct in place, there has to be something backing them up,
> else they are meaningless. I've expressed skepticism of the local bars as
> an effective avenue to enforce this - particularly since not all of the
> examiners are actually lawyers.
>
> I support Justine's suggested language.
>
> Best,
>
> Michael
>
> On Thu, Aug 30, 2018 at 7:22 AM Susan Payne <susan.payne at valideus.com>
> wrote:
> >
> > I strongly disagree – both with Justine’s suggestion and, on reflection,
> with this suggested action for the WG.  This seems to be a solution in
> search of a problem.  Throughout the work of this PDP we are meant to be
> considering “what is the problem that needs to be fixed?”  We came across
> nothing in the Providers’ subteam which suggested there is an issue/problem
> with Examiner conflict of interest or other “non-performance or
> malfeasance”.  The parties themselves are in a position to identify if a
> problem occurs on a particular case since they have the background
> knowledge.  As we have also discussed in the past in the WG, lawyers have
> obligations and standards of ethics under their respective local Bars –if
> an Examiner knowingly had a conflict of interest and didn’t disclose
> it/recuse themselves then frankly any sanctions from the URS provider are
> the least of their worries, they would face professional sanctions,
> potentially even disbarment.
> >
> >
> >
> > I believe that this suggested item should be removed altogether since
> the overarching topic remains in the super-consolidated table and can be
> considered by the WG as it thinks fit – currently, even in the version of
> the language in the staff redline there is a suggestion of a problem which
> needs fixing, which is simply not the case.  At the most, it needs to be
> far more explicit that as a subteam we are not making a recommendation here
> because we have not identified a problem, but that the wider WG can discuss
> further as they wish:
> >
> > “The Providers’ subteam has not identified any need for explicit
> standards regarding the sanction or removal of Examiners.  The WG may wish
> to consider this further.”
> >
> >
> >
> > Susan Payne
> > Head of Legal Policy | Valideus Ltd
> >
> > E: susan.payne at valideus.com
> > D: +44 20 7421 8255
> > T: +44 20 7421 8299
> > M: +44 7971 661175
> >
> >
> >
> > From: Gnso-rpm-providers [mailto:gnso-rpm-providers-bounces at icann.org]
> > On Behalf Of Justine Chew
> > Sent: 30 August 2018 09:38
> > To: gnso-rpm-providers at icann.org
> > Subject: Re: [Gnso-rpm-providers] Redline Edits to Providers ST's URS
> > Proposals - Review by COB Fri
> >
> >
> >
> > Aside from the 'discussion' on interpretation of URS Rule 2(a), I had
> only 1 other point to raise for consideration:
> >
> >
> >
> > M.1. Suggested Action Item for the WG (found at ~ page 43 of Redline
> > doc), which reads,
> >
> > WG should consider explicit standards for the sanction and removal of
> Examiners.
> >
> > I suggest to refine this to read as,
> >
> > WG should consider explicit practice(1) standards for the sanction and
> > removal of Examiners for non-declaration of a conflict of interest,(2)
> > non-performance or malfeasance.(3)  [numbers added to facilitate
> > explanation below]
> >
> > (1) "practice standards" as opposed to just "standards" so as to avoid
> > confusion with the term "standards" (to mean examination standards)
> > which is already used in the URS Procedures;
> > (2) "for non-declaration of a conflict of interest" and (3)
> > "non-performance of malfeasance" are suggested as the areas for which
> > sanction and removal need to be considered; the omission of which
> > seems to suggest a sort of uneasy open-endedness'; and
> > (3) "non-performance or malfeasance" is drawn from URS Procedure 7.3
> >
> > My two-cents. Or if anyone wishes to soften the language, please go
> ahead.
> >
> >
> > Justine
> > -----
> >
> >
> >
> >
> >
> > On Thu, 30 Aug 2018 at 01:51, Ariel Liang <ariel.liang at icann.org> wrote:
> >
> > Dear All,
> >
> >
> >
> > Per staff action item, we have updated the Super Consolidated URS Table
> with the suggested edits agreed to by the Sub Team, shown in redline.
> Please note:
> >
> > Per ST’s direction, Staff inserted additional language in the proposed
> policy recommendations in section “L. Education & Training” (page 38-39) in
> light of the staff review of Providers’ online forms and Notice of
> Complaint (see staff review in the email attached).
> > Susan’s suggested operational fix with regard to compliance is
> > inserted in section “F. Remedies 2./3.” (page 28) Staff also slightly
> > edited the language of “Provider ST’s Suggested Action Items for the
> > WG” for consistency
> >
> >
> >
> > ACTION for SUB Team: Please review the latest redline language of all of
> Providers ST’s policy recommendations, operational fixes, and suggested
> action items for the WG by COB Friday, 31 August. If no objection or
> comment/input received, the redline language will be accepted by COB
> Friday, 31 August.
> >
> >
> >
> > Best Regards,
> >
> > Mary, Julie, Ariel & Berry
> >
> >
> >
> > From: Gnso-rpm-providers <gnso-rpm-providers-bounces at icann.org> on
> > behalf of Julie Hedlund <julie.hedlund at icann.org>
> > Date: Wednesday, August 29, 2018 at 9:41 AM
> > To: "gnso-rpm-providers at icann.org" <gnso-rpm-providers at icann.org>
> > Subject: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team
> > 29 August 2018
> >
> >
> >
> > Dear All,
> >
> >
> >
> > Please see below the action items and notes captured by staff from the
> Providers Sub Team call held on 29 August 2018 (12:00-13:30 UTC).  Staff
> have posted to the wiki space the action items and notes.  Please note that
> these will be high-level notes and are not meant as a substitute for the
> recording. The recording, AC chat, and attendance records are posted on the
> wiki at:
> https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+URS+Providers
> .
> >
> >
> >
> > See also the attached referenced documents.
> >
> >
> >
> > Best Regards,
> >
> > Julie
> >
> > Julie Hedlund, Policy Director
> >
> >
> >
> > ==
> >
> >
> >
> > ACTION ITEMS:
> >
> >
> >
> > Susan Payne will suggest language for an overarching recommendation
> concerning the need for ICANN Compliance proactive monitoring.
> > Staff will update the Super Consolidated URS Table with the suggested
> edits agreed to by the Sub Team shown in redline.  Note in the cover email
> that staff has inserted additional language in the Education and Training
> section at the direction of the Sub Team.  Ask for responses by COB Friday
> and if no objections the redlined document will be accepted by COB Friday.
> >
> >
> >
> > NOTES:
> >
> >
> >
> > Operational Fixes:
> >
> >
> >
> > A. THE COMPLAINT
> >
> >
> >
> > 4. Administrative review
> >
> >
> >
> > A URS provider should check the websites of other URS and UDRP providers
> to ensure that a disputed domain name is not already subject to an
> open/active URS/UDRP proceeding.
> >
> >
> >
> > -- I think registrant is in the best position, but I'm assuming it's not
> difficult for the providers to check?
> >
> > -- Accept the suggested revised language.
> >
> >
> >
> > 6. Amending the Complaint in light of GDPR/Temp Spec -- page 5/6
> >
> >
> >
> > Providers should modify their operational rules in terms of
> automatically populating the Complaint Form using WHOIS data.
> >
> > -and-
> >
> > GDD, [Providers, and Registries] should [jointly] develop a uniform
> > system for interaction between the Providers and the Registries
> > regarding registrant data that is unavailable in publicly accessible
> > WHOIS
> >
> > [rules for the timely response by Registries to requests for
> > non-public information from Providers]
> >
> >
> >
> > -- Not what sure we are suggesting -- what do we mean by "develop a
> uniform system for interaction" -- do we mean a system for timely response
> from the Providers?
> >
> > -- Accept the suggested revised language with strikeouts and additional
> text in brackets.
> >
> >
> >
> > B. NOTICE
> >
> >
> >
> > 1. Receipt by Registrant - Notice (feedback from Complainant &
> > Respondent)
> >
> >
> >
> > ADNDRC should change its operational rules to comply with URS Procedure
> 4.2, requiring that notice of the Complaint be transmitted [with
> translation] by the registrant via email, fax, and postal mail.
> >
> >
> >
> > -- Accept the suggested revised language.
> >
> >
> >
> > 2. Effect on Registry Operator - Notice requirements for Registry
> > Operators
> >
> >
> >
> > ICANN’s email addresses for Registry contacts (reached by Providers)
> > should be kept up to date
> >
> > -and-
> >
> > GDD, [Providers, and registries] should [jointly] develop a uniform
> > system for interaction between the Providers and the Registries
> > regarding Registry notice requirements
> >
> >
> >
> > -- What does "(reached by Providers)" mean?  Strike the parenthetical
> and change to "should be kept up to date for use by Providers".
> >
> > -- Accept the suggested revised language with additional text in
> brackets.
> >
> >
> >
> > F. REMEDIES
> >
> >
> >
> > 3. Review of Implementation
> >
> >
> >
> > There should be efforts undertaken to better inform and enhance the
> > understanding by Registry Operators and Registrars of their role in
> > the URS process
> >
> >
> >
> > -- Accept the suggested revised language
> >
> > ACTION ITEM: Susan Payne will suggest language for an overarching
> recommendation concerning the need for ICANN Compliance proactive
> monitoring.
> >
> >
> >
> > J. LANGUAGE ISSUES
> >
> >
> >
> > 1. Language issues, including current requirements for complaint,
> > notice of complaint, response, determination
> >
> >
> >
> > ICANN should enforce the URS Rules 9 and URS Procedure 4.2 with respect
> to Providers communicating with the Registrant in the predominant language
> of the Registrant. In particular, as the WG has found that ADNDRC is not in
> compliance with URS Procedure 4.2 and URS Rules 9, ICANN should request
> ADNDRC to change their operational rules and to translate the Notice of
> Complaint “into the predominant language used in the Registrant’s country
> or territory”.
> >
> >
> >
> > -- Accept the suggested revised language.
> >
> >
> >
> > M. URS PROVIDERS
> >
> >
> >
> > 1. Evaluation of URS providers and their respective processes
> > (including training of panelists)
> >
> >
> >
> > Provider compliance with URS Rule 6(a) should be enforced. ADNDRC, in
> particular, should be required to list the backgrounds of all of their
> Examiners so that Complainants and Respondents can check for conflicts of
> interest.
> >
> >
> >
> > -- Accept the suggested revised language.
> >
> >
> >
> > Policy Proposals:
> >
> >
> >
> > A. THE COMPLAINT
> >
> >
> >
> > 6. Amending the Complaint in light of GDPR/Temp Spec
> >
> >
> >
> > URS Rule 3(b) should be amended in light of GDPR and the permissible
> filing of a “Doe Complaint”.
> >
> > -and-
> >
> > URS Procedure para 3.3 should be amended to enable modification of the
> Complaint within 2-3 days from disclosure of the full registration data by
> the URS Provider.
> >
> > -and-
> >
> > Outreach and education efforts should be undertaken via expert
> intermediaries to increase awareness and understanding of the common law
> concept of “Doe Complaint” in civil law jurisdictions, especially the EU.
> >
> >
> >
> > -- Accept the suggested revised language.
> >
> > -- Re: "WG to communicate with the EPDP Team about this issue: European
> civil law systems do not recognize the common law concept of "Doe
> Complaint", and the concept is not well understood in Europe"  This could
> be addressed in an informal note.
> >
> >
> >
> > B. NOTICE
> >
> >
> >
> > 1. Receipt by Registrant -Notice (feedback from Complainant &
> > Respondent)
> >
> >
> >
> > For “Doe Complaints’, Providers should [first] send notice to
> respondents [via the online registrant contact form and then by the
> required methods] as soon as relevant WHOIS data is forwarded by the
> registry.
> >
> >
> >
> > -- Accept the suggested revised language with additional text in
> brackets.
> >
> >
> >
> > E. DEFENSES
> >
> >
> >
> > 1. Scope of Defenses
> >
> >
> >
> > 2. Unreasonable delay in filing a complaint (i.e. laches)
> >
> >
> >
> > All Providers should provide similar types and forms of guidance to
> their examiners.
> >
> > -and-
> >
> > Examiners should document their rationale in all issued Determinations;
> in particular, when an Examiner finds that a registrant has registered and
> used a domain in bad faith supporting facts should be cited.
> >
> >
> >
> > -- Accept the suggested revised language.
> >
> >
> >
> > F. REMEDIES
> >
> >
> >
> > 2. Duration of Suspension Period
> >
> >
> >
> > 3. Review of Implementation
> >
> >
> >
> > URS Technical Requirements 3 and Registry Requirement 10 should be
> amended, [and compliance efforts should be directed,] to address problems
> with the implementation of the relief awarded following a URS decision; the
> implementation of a settlement (generally a domain transfer at the
> registrar level); and implementation of Complainant requests to extend a
> suspension.
> >
> >
> >
> > -- Do we need to mention ICANN Compliance role at all?  Reword
> accordingly.
> >
> > -- Accept the suggested revised language.
> >
> >
> >
> > K. ABUSE OF PROCESS
> >
> >
> >
> > 1. Misuse of the process, including by trademark owners, registrants and
> “repeat offenders”
> >
> >
> >
> > Penalties for the abuse of the process by the Respondent should be added
> to the URS Rules; this proposal should be published to solicit public
> comment on what type of procedural abuse should be sanctioned, and in what
> manner.
> >
> >
> >
> > -- Don't think that anything discussed in the Providers Sub team to
> support or oppose this notion.  We could seek public comment on it.
> >
> > -- Our "position" could be that this examination be for both Complainant
> and Respondent for fairness. But okay to action item to WG rather than as a
> recommendation.
> >
> > -- Create a new section 3: Suggested Action Items:  The WG should
> consider whether to include the following question in the Initial Report
> for the purpose of soliciting public comment: “Are penalties for abuse of
> the process by the Complianant or Respondent sufficient, or if not, or
> should they be expanded, and how?"
> >
> > -- Accept the suggested approach.
> >
> >
> >
> > Re: "WG to consider whether, in light of FORUM and MFSD feedback on use
> of WHOIS to help determine Respondent language, policy recommendations
> should be developed to handle language and related GDPR concerns."
> >
> >
> >
> > -- Not sure why this should be a concern since the information about the
> country should be available.
> >
> > -- Agree GDPR should not be a concern insofar as country of Registrant
> is concerned.
> >
> > -- Change from a recommendation to an action.
> >
> >
> >
> > L. EDUCATION & TRAINING
> >
> > 1. Responsibility for education and training of complainants,
> > registrants, registry operators and registrars
> >
> >
> >
> > ICANN [should] develop easy-to-understand, multilingual, and linkable
> > guidance (e.g. basic FAQs) for reference and informational purposes of
> > both URS parties (Complainants and Respondents)
> >
> > -and-
> >
> > URS Providers should develop additional clear and concise reference and
> informational materials specific to their service, practice, and website
> for the use and benefit of both URS parties.
> >
> >
> >
> > -- Accept the suggested revised language.
> >
> >
> >
> > M. URS PROVIDERS
> >
> > 1. Evaluation of URS providers and their respective processes
> > (including training of panelists)
> >
> >
> >
> > Explicit standards for [for the sanction and removal of Examiners should
> be considered” removal of Examiners based upon particular background and
> factors, such as continued representation of serial cybersquatters, or
> representation of parties found to have engaged in attempted reverse domain
> name hijacking, should be developed.
> >
> >
> >
> > -- I don't think we identified that there was a problem.
> >
> > -- Reword "Explicit standards for the sanction and removal of Examiners
> should be considered." Put into Section 3, Suggested Action Items.
> >
> > -- Accept the suggested revised language with strikeouts and additional
> text in brackets.
> >
> >
> >
> >
> > ---------- Forwarded message ----------
> > From: Ariel Liang <ariel.liang at icann.org>
> > To: "gnso-rpm-providers at icann.org" <gnso-rpm-providers at icann.org>
> > Cc:
> > Bcc:
> > Date: Thu, 23 Aug 2018 13:45:23 -0400
> > Subject: Staff's Review of Notice of Complaint & Providers' Forms &
> > Instructions
> >
> > Dear Providers Sub Team members,
> >
> >
> >
> > Per Action Item 4: Staff to review the Notice of Complaint and
> Providers’ forms and instructions to assist the Sub Team to consider
> proposed suggestions, if any.
> >
> >
> >
> > Staff reviewed all the requested materials and found:
> >
> > Notice of Complaint: While ADNDRC didn’t provide the requested document,
> it seems that FORUM and MFSD have provided quite thorough instruction to
> the Respondent about the steps and what to expect in the URS proceedings.
> > Complaint/Response/Appeal forms: Providers vary in terms of the amount
> of guidance they provide to the URS Parties. E.g., FORUM provides
> PowerPoint Demo with step-by-step instructions; MFSD references specific
> URS Rules/Procedure & Supplemental Rules in detail; ADNDRC seems to only
> provide simple forms.
> >
> >
> >
> > Please see the notes below for details.
> >
> >
> >
> > Before the review of those materials, Providers Sub Team proposed the
> following draft recommendations for the WG’s consideration:
> >
> > WG to discuss whether to recommend ICANN to develop an
> > easy-to-understand, multilingual, and linkable guidance (e.g. basic
> FAQs) for both URS parties WG to discuss whether Providers should develop
> additional materials specific to their service, practice, website, etc.
> >
> >
> >
> > QUESTION: Does the Sub Team believe any of those draft recommendations
> need to be amended?
> >
> >
> >
> > Staff have included the links to materials in case you would like to
> reference on your own.
> >
> >
> >
> > Thank you,
> >
> > Mary, Julie, Ariel & Berry
> >
> >
> >
> > ==
> >
> > Detailed Findings
> >
> >
> >
> > Notice of Complaint
> >
> > ADNDRC didn’t provide the Notice of Complaint but provided an email
> > they send to the Complainant to acknowledge receipt of the Complaint
> FORUM and MFSD seem to provide thorough instruction to the Respondent about
> the steps, timelines, fees, potential outcomes, and other details of the
> URS proceedings. They also provided the contact information if the
> Respondent needs assistance. Links to the URS Rules, procedure, and
> Supplemental Rules are included in the Notice of Complaint.
> >
> >
> >
> > Complaint Form
> >
> > ADNDRC: A simple form, no additional instruction on the form itself
> > for the Complainant; didn’t ask for fax number from the Complainant
> > and the Respondent (it is required in the URS Rule 3b)
> > FORUM: Includes a PowerPoint Demo for the Complainant about how to
> > file a Complaint using their online portal, with step-by-step
> > instructions and references to specific URS Rules/Procedure
> > MFSD: A Standard form but includes detailed references to specific URS
> > Rules/Procedure and MFSD Supplemental Rules All three Providers: Ask
> > the Complainant to provide supporting documentation regarding the TM
> > registration and proof of use
> >
> >
> >
> > Response Form
> >
> > ADNDRC: A simple form, no additional instruction on the form itself
> > for the Respondent; the handwritten notes on page 3-4 are a little bit
> > confusing, and also there is text being crossed out
> > FORUM: Includes a PowerPoint Demo for the Respondent about how to file
> > a Response using their online portal, with step-by-step instructions
> > and references to specific URS Procedure
> >
> > MFSD: A Standard form but includes detailed references to specific URS
> > Rules/Procedure and MFSD Supplemental Rules
> >
> >
> >
> > Appeal Form
> >
> > ADNDRC: A simple form, no additional instruction on the form itself
> > for the Appellant/Appellee
> > FORUM: Includes a PowerPoint Demo for the Appellant and the Appellee
> > about how to file an Appeal/Appeal Response using their online portal,
> > with step-by-step instructions and references to specific URS
> > Procedure
> > MFSD: A Standard form but includes detailed references to specific URS
> > Rules/Procedure and MFSD Supplemental Rules
> >
> >
> >
> > Requested Materials
> >
> > ADNDRC:
> >
> > ADNDRC Complaint Form
> > ADNDRC Response Form
> > ADNDRC Appeal Form
> > ADNDRC Notice of Complaint
> >
> >
> >
> > FORUM:
> >
> > FORUM Complaint Form
> > FORUM Response Form
> > FORUM Appeal Form
> > FORUM Notice of Complaint
> >
> >
> >
> > MFSD:
> >
> > MFSD Complaint Form
> > MFSD Response Form
> > MFSD Appeal Form
> > MFSD Notice of Complaint
> >
> >
> >
> > _______________________________________________
> > Gnso-rpm-providers mailing list
> > Gnso-rpm-providers at icann.org
> > https://mm.icann.org/mailman/listinfo/gnso-rpm-providers
> >
> > _______________________________________________
> > Gnso-rpm-providers mailing list
> > Gnso-rpm-providers at icann.org
> > https://mm.icann.org/mailman/listinfo/gnso-rpm-providers
> _______________________________________________
> Gnso-rpm-providers mailing list
> Gnso-rpm-providers at icann.org
> https://mm.icann.org/mailman/listinfo/gnso-rpm-providers
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