[gnso-rpm-wg] Proposal to Shift URS review to Phase II

Mon Apr 9 14:36:57 UTC 2018

Please excuse my naivete, but what’s the problem?

John suggested we have a single PDP chair for the next phase and that the chair be neutral, experienced & understand the process.

I think all of that is fair & desirable.  I also think there are any number of people who may be appropriate.

The WG now needs to decide:

*	Should there be any other requirements
*	Nominees

Cyntia King

E:  cking at modernip

O:  +1 81-ModernIP

C:  +1 818.209.6088

From: gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org> On Behalf Of Paul Tattersfield
Sent: Monday, April 9, 2018 5:02 AM
To: Greg Shatan <gregshatanipc at gmail.com>
Cc: gnso-rpm-wg <gnso-rpm-wg at icann.org>
Subject: Re: [gnso-rpm-wg] Proposal to Shift URS review to Phase II

Greg, because they are a subset of the ideal criteria necessary for optimum outcomes and as such has the potential to shape process in an unwelcome way.

I am hoping John having brought forward his in depth proposal with this very significant ballon d'essai in the ultimate paragraph would expand further on his intentions or at least indicate if he had someone mind.

Kind regards,

Paul.

On Fri, Apr 6, 2018 at 4:06 PM, Greg Shatan <gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com> > wrote:

Paul,

I'm not sure why you say this is precise.  Is there one criterion in particular that caused you to say that?

Greg

On Fri, Apr 6, 2018 at 9:24 AM, Paul Tattersfield <gpmgroup at gmail.com <mailto:gpmgroup at gmail.com> > wrote:

it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures

That is quite a precise skill set, did you have someone in mind?

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On Fri, Apr 6, 2018 at 2:54 AM, John McElwaine <john.mcelwaine at nelsonmullins.com <mailto:john.mcelwaine at nelsonmullins.com> > wrote:

Dear RPM Working Group:

In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group’s charter relating to the URS to Phase II.  The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration.

Kind regards,

John

Proposal to Shift URS from Phase I to Phase II:

1.     On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months.

2.     On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward.  The third option ultimately was elected at that time:

The “third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program.” 

3.     On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group  (“RPM Working Group”). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP.

4.     The Objective & Goals in the PDP’s Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals.  RPM Working Group Charter, at p. 3.  The Objectives & Goals in the PDP’s Charter were broadly defined:  

“In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop  recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future.”

5.     However, the RPM Working Group Charter also contains a lengthy attachment entitled “LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP” This “list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue”.  This list contains topics that are out of scope when compared with the Objectives and Goals, including:

1.     Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window

2.     Should monetary damages be awarded? 

3.     Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli?

4.     Should injunctive relief be available?

5.     Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a “cybersquatter”?

6.     Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group.  As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would:

1.     Define clearly what success for the proposed working group ”should look like”.  (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS (“Transcript”) at p. 5).

2.     Define topics or issues that must be addressed, may be addressed and may not be addressed.  (Transcript at p. 4).

3.     Have “more defined issues, [be] more bounded, more limited.” (Transcript at p. 5).

4.     Have a narrower scope and be broken up into separate projects.  (Transcript at p. 5).

5.     Having a charter drafting team that “that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience.”  (S. DelBianco reporting on breakout session, Transcript at p. 5).

7.     The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs.   The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner.

8.     With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented.  The new regulation is scheduled to take effect on May 25, 2018.  Among other ways, GDRP may adversely impact the URS and the UDRP by: 

1.     Procedure for UDRP/URS:

1.     Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained.

2.     Possibility that the Language of the URS proceeding cannot be determined.

2.     Procedure for URS:

1.     Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant’s country or territory.

2.     Possibility that URS complainants cannot know the language of a possible response.

3.     Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly.

3.     UDRP Element 2 / URS:

1.     Cannot argue that the registrant is not commonly known by the Domain Name at issue.

2.     Cannot determine if the registrant has been authorized by the Trademark holder.

3.     Cannot determine if the registrant is an authorized reseller of the Trademark holder’s product.

4.     Cannot determine on what date the domain name was “registered” by the current domain name holder if it was transferred to this current domain name holder.  (requires being able to see the WhoIs history).  This could prevent baseless claims from being filed.

4.     UDRP Element 3:

1.     Cannot determine if registrant has engaged in a pattern of bad faith registrations.  Rule 4(b)(ii).

2.     Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams.

3.     Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place).

4.     Cannot determine if the registrant is technically a “competitor” that has registered the Domain Name for the purpose of disrupting the business of the Complainant.  Rule 4(b)(iii).

9.     Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-08mar18-en.pdf.   Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018.  There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time.  

Recommendation: 

1.     The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment.

2.     After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices.

3.     The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows:

1.     shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known;

2.     provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed;

3.     provide clear guidance on the scope of the review of the URS and UDRP.

Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures.  Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams.  

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