[GNSO-RPM-WG] Public Comment Analysis Summary Document - URS Proposals 1-3, 6, 11, 13, 15, 22, 26

[claudio di gangi]

Phil,

I am speculating, but perhaps you are finding yourself somewhat surprised
because the WG did not have any merit-based, substantive discussion on the
individual proposals before they were posted for public comment?

As I recall, the purpose of the discussion we had at the time was to simply
make a determination on whether to post an individual proposal for public
comment. In thinking about the survey exercise we went through, and how
different members answered the survey questions differently. Some voted in
favor, even if they opposed a proposal on the merits, because they were
under the impression that the intent of the question was whether to simply
post the proposal for public comment, while others did the very opposite?

I also recall having no substantive discussion because I remember sending
an email to the list highlighting in bold letters the fact that “this is
not to discuss the substance of the proposal, that discussion will take
place another day”.

So please correct me if I am mistaken, but what appears to have occurred is
the WG, after the close of the public comment period, has been reviewing
public comments on the individual proposals that the WG has not yet
substantively discussed.

As I recently noted, I did not participate in that recent meeting when the
public comments on my proposal (#6) were discussed.

Therefore, the team had a discussion about public comments on a proposal
that the WG did not previously discuss on the merits, without the
involvement of the proponent of the proposal.

Had I been part of the discussion, I would have been able to respond to the
issues raised in the public comments, or by members of the WG, in order to
clarify and bring meaning to what was being proposed in the first instance,
and therefore shed import on the relevance and meaning of the public
comments themselves or views of WG members.

In reading over the public comments, it appears personally obvious to me
that many commenters were of the view that the proposal is seeking to
create a new URS rule along the following lines: “multiple unrelated
complainants must be allowed to consolidate their claims against a single
domain registrant under certain circumstances”.

When in fact, I am not proposing this at all.

What I am proposing is that there should NOT be a rule of this kind
hard-coded into the URS Procedures, in either direction, as it currently
stands. Rather, this is an issue that should be resolved through the
jurisprudence of the policy.

My thinking is supported by the fact that no such rule was proposed by the
community groups that created the URS, such as IRT or the STI, but was only
added after the fact by someone on the staff-side holding the pen on the
AGB documents. In other words no one in the community proposed this rule
for adoption in the URS, so I am proposing we simply remove it.

In reading your reply, it appears to me you are seeking a response more on
the merits, so kindly consider the following scenarios.

Scenario 1):

A cybersquatter registers in bad faith 100 domain names to commonly target
a group of 20 companies.

The companies operate in different industry lines and sectors.

Each company holds, let's say 3 trademarks, for a total of 60 trademarks
that have been commonly targeted by the cybersquatter and which are the
subject of the URS complaint.

The 60 trademarks owned by the 20 companies bear no visual, phonetic, or
other apparent meaning to each other.

The 100 domains that are subject to this complaint are not exact-match
variations of the 60 trademarks.

Rather, they all involve typo-variations of the trademarks, in some cases
specific letters are transposed, in other cases letters are missing or
other letters are added to the marks.

Some domains have words that have been interposed to the trademarks (which
perhaps bear some correlation to the underlying goods and services of the
trademarks), or the words interposed that are geographic or generic in
nature.

The websites associated with the 100 cybersquatted domains all contain
content, and the content varies, some may even be in another language. In
other words, the cybersquatter creates 100 different websites and they all
vary in appearance.

In terms of the 20 companies, their only "relatedness" exists from a web of
historical mergers and acquisitions, so they share an overarching legal
structure, e.g. they share the same parent company in some distant corner
of the world.

Under the current URS Procedures, these 20 companies are permitted to bring
a single complaint jointly against the single registrant for these 100
domains. They are permitted to do so under the rules because the companies
are "related', i.e. they are under some legalized form of ownership.

My proposal is asking 1) why this should be the sole determining factor on
whether consolidation is permissible, and 2) why this rule needs to be
hardcoded in the URS Procedures?

For example, in the type of case that is permitted above, the examiner has
a good amount of factual analysis to perform.

In addition, the examiner has to perform the step of going through the
legal documentation to confirm these companies are legally related entities
under the same corporate umbrella, in effect establishing the chain of
title between the companies.

Even though there is this type of heavy fact-based analysis, this form of
consolidation case is permitted because it is hardcoded in the URS
Procedures document.

Scenario 2):

A cybersquatter registers 20 domains in a new gTLD to commonly target a
group of 20 health care providers, or 20 well-known banks.

The 20 domains are an exact-match of the companies’ trademarks.

The cybersquatter does not use the domains to host content on websites.

Rather, the cybersquatter creates a phishing email that states the
following: “To reset your password, please click on this link___” as a
scheme to steal personal data from the companies' consumers.

The phishing email looks legitimate to the consumer, as the exact-match of
the company’s trademark appears in the domain name and therefore, as part
of the sender’s address.

Of the 20 companies, one realizes that its customers are in the process of
being phished and performs an investigation. In the process, the company
identifies that 19 of its competitors are also being commonly targeted
under the same phishing scheme.

The company is not able to reach the web-host and the registrar is also
unresponsive, so they decide that the best course of action, at least in
the short term, is to bring a URS proceeding to have the 20 domains
suspended. These 20 companies are not able to save resources on themselves,
on the provider, or on ICANN, by bringing a joint complaint.

Currently, this case can’t get to the examiner.

The other 19 companies must bring separate, independent URS proceedings,
because the 20 companies are not “related” companies,
i.e. they are not under the same legal ownership structure. However, legal
ownership is merely a formality of the corporate form in some cases.

The end result is the current rule that is hard-coded in the URS Procedures
document prevents the Provider from considering consolidation under
appropriate circumstances.

We want a system that promotes efficiency, fairness and saves resources;
following the UDRP model, the jurisprudence of the policy can and should
evolve in an equitable direction and the URS Procedures document is not the
appropriate source for this type of rule (as the cases above clearly
illustrate).

In scenario 1, the factual and legal analysis is much more fact,
labor-intensive and complex.

In scenario 2, the factual and legal analysis is straightforward: 20 exact
match domains all being used to send the same phishing email.

In sum, on the complainant's side, having some option is better than having
no option. This is reflected by the support from the IPC and BC and among
the brand owners that provided comments on an individual basis.

On the respondent side, any potential equitable issues would need to be
addressed to ensure fairness and due process. Because of the very
uniqueness of these fact patterns, I personally believe we are on solid
ground in that regard and the prospects are positive.

On the Provider's side, they expressed openness to the idea and I think
with their input and with ideas from others, we can make headway and there
is a good, reasonable chance of reaching consensus on improving the system
in a manner that achieves its intended design functions.

I hope this is responsive to your query, and hope you enjoy the rest of the
weekend.

Cheers,
Claudio



On Friday, June 26, 2020, Corwin, Philip <pcorwin at verisign.com> wrote:

> Claudio:
>
>
>
> “Your reference to “revisit items already handled” and to “reopening”
> speaks as if final conclusions have already been reached, when I believe
> that is no where near the case here.”
>
>
>
> That is not correct. Unlike the WG recommendations in the Initial Report,
> which had broad support and minimal opposition, the individual proposals
> did not have WG backing, and were put out for comment to gauge community
> support/opposition and whether they should go forward, in initial or
> revised form, for consensus call consideration. My personal presumption was
> that the great majority of individual proposals would not move forward, and
> I have actually been surprised that after comment review some number will
> or may get further consideration.
>
>
>
> But that is not the case for URS #6, as there was broad agreement after
> review of community input that it had no realistic chance to garner
> consensus support. As I stated in my earlier email today, “If you believe
> that there is some way in which this proposal to let multiple unrelated
> complainants bring a single joint complaint against a single registrant can
> be revised in a manner to achieve that purpose and have a substantial
> prospect of gaining consensus support within the WG I invite you to share
> such revision for consideration. Short of that, in the opinion of this
> co-chair Proposal 6 is DOA and will not be discussed further per the
> decision agreed to by WG members on the call in which it was discussed.”
>
>
>
> Best, Philip
>
>
>
>
>
>
>
> Philip S. Corwin
>
> Policy Counsel
>
> VeriSign, Inc.
>
> 12061 Bluemont Way
> <https://www.google.com/maps/search/12061+Bluemont+Way+%0D%0AReston,+VA+20190?entry=gmail&source=g>
> Reston, VA 20190
>
> 703-948-4648/Direct
>
> 571-342-7489/Cell
>
>
>
> *"Luck is the residue of design" -- Branch Rickey*
>
>
>
> *From:* GNSO-RPM-WG <gnso-rpm-wg-bounces at icann.org> * On Behalf Of *claudio
> di gangi
> *Sent:* Friday, June 26, 2020 2:35 PM
> *To:* McGrady, Paul D. <PMcGrady at taftlaw.com>
> *Cc:* gnso-rpm-wg at icann.org
> *Subject:* [EXTERNAL] Re: [GNSO-RPM-WG] Public Comment Analysis Summary
> Document - URS Proposals 1-3, 6, 11, 13, 15, 22, 26
>
>
>
> Paul,
>
>
>
> Actually, I believe you have things backwards here. The default operating
> procedure is to promote more inclusion, not less and not exclude members
> from decision-making because they missed a phone call or a meeting. That’s
> why we have the list and the open and inclusive operating procedures.
>
>
>
> Your reference to “revisit items already handled” and to “reopening”
> speaks as if final conclusions have already been reached, when I believe
> that is no where near the case here.
>
>
>
> Finally, I didn’t assert that you misunderstood the proposal, merely that
> it appeared to me that you did based on your summary statement. We can get
> into the merits at a later stage, but I hope no offense was taken, as none
> was intended - I know you are very smart guy!
>
>
>
> Cheers,
>
> Claudio
>
>
>
>
>
>
> On Friday, June 26, 2020, McGrady, Paul D. <PMcGrady at taftlaw.com> wrote:
>
> Claudio, thanks for your email.
>
>
>
> All, here is a link to the proposal that Claudio is talking about:
> https://community.icann.org/display/RARPMRIAGPWG/URS+Individual+Proposal+%236
> <https://secure-web.cisco.com/1lYs_kXykg5dqAYwhfAcnznIQ8YqmbHOe5b7Eqqq5SqJuXh-2yH9X9DPg30IEHLKHU0_S2TuUR-4ScuGRU1heNKOGoLhFkZDA-lzYOtFxey_P_BY3U2jTQFS9q-ixD5KVPlp5dp7OkVpW8NstQrddtVgFMBW_mN-ckuehl9OZ3QjbQFiejFGnWoK_GzSj7l1wLkKlObEAqJCvju7MrhRnfUiw1_dXyvfJqbQ1LmfBtPqwvy-deJscN6UO-dCGs7i4YwWmUenGEAbxSIjxhMDOyw/https%3A%2F%2Fcommunity.icann.org%2Fdisplay%2FRARPMRIAGPWG%2FURS%2BIndividual%2BProposal%2B%25236>
>
>
>
> Three Co-chairs, while I do not believe it is a good idea to revisit items
> already handled because their proponent was not on a call, that choice is
> yours.  However, please do not feel pressure to reopen it based upon
> Claudio’s assertion that I misunderstood the proposal.  I assure you that I
> understand it.
>
>
>
> Best,
>
> Paul
>
>
>
>
>
>
>
>
>
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> *From:* GNSO-RPM-WG <gnso-rpm-wg-bounces at icann.org> *On Behalf Of *claudio
> di gangi
> *Sent:* Friday, June 26, 2020 12:21 AM
> *To:* Ariel Liang <ariel.liang at icann.org>
> *Cc:* gnso-rpm-wg at icann.org
> *Subject:* Re: [GNSO-RPM-WG] Public Comment Analysis Summary Document -
> URS Proposals 1-3, 6, 11, 13, 15, 22, 26
>
>
>
> Hi all,
>
>
>
> I wasn’t on this call when Proposal #6 was discussed by the WG for
> potential preservation for further WG consideration.
>
>
>
> From my reading of the transcript, and the summary of the public comments
> as produced/reviewed by staff and the sub-teams, there appears to be a
> major misunderstanding of the intent of proposal #6. I have a sense that
> folks think the proposal is seeking to do a lot more than what it is
> actually seeking to accomplish (perhaps based on the wording of the
> proposal).
>
>
>
> I am basing my interpretation of this confusion on the following: 1) my
> personal review of the public comments; 2) the apparent assessment made by
> Paul McGrady that the proposal should “die on the vine” - based on a
> rationale that I believe reflects a misunderstanding of the proposal (in
> contrast, it terms of the CSG constituencies, the proposal is supported by
> the IPC and BC); and 3) during this last WG meeting, the analysis comments
> made by Phil as co-chair concerning the analysis of the public comments
> (which, as I stated above, many of the public comments appear to be based
> on a misunderstanding of the proposal); and 4) the comments made by Lori
> along the lines of “let’s put this proposal out it’s misery” (in contrast,
> the proposal is supported by the IPC and BC, and is based on a previous
> INTA recommendation).
>
>
>
> As an aside, this experience leaves me with the sense that if a proponent
> isn’t on a call for an individual proposal discussion, and it’s easy to
> skip on to the next, it probably a good idea to do so.
>
>
>
> In conclusion, I am expecting/hoping to get a chance to clarify the
> confusion on this proposal on the next call and for the time being to leave
> this item open for further review.
>
>
>
> Cheers,
>
> Claudio
>
>
>
> On Thursday, June 25, 2020, Ariel Liang <ariel.liang at icann.org> wrote:
>
> Dear Working Group members,
>
>
>
> Please find a public comment analysis document which
> encapsulates/summarizes the Working Group’s deliberations on the public
> comments for individual proposals:
> https://docs.google.com/document/d/1Pnqor6rHjvowH66GPQG9XI23n8H2mgkbf39-jA4KlFc/edit?usp=sharing
>  The updated content for URS Proposals #1, #2, #3, #6, #11, #13, #15,
> #22, and #26 are on pages 1-12, 14-17.
>
>
>
> *Brief introduction: *
>
>    - This document is not meant to replace the Working Group’s
>    transcripts/recordings/chat records, which include the full details of each
>    meeting.
>
>
>    - Tue, 23 June session:
>       https://68.schedule.icann.org/meetings/4h27u2A9rBqt8annP
>       <https://secure-web.cisco.com/1hAxjVWDW16z7HCPA-IWN8C4xuMEuUoVL7cbOPEPWIdSW5tk6IokvV_xGrpF6m-d36j8RlHB784PAMmm9yqYRRQonlhIIRzGCuN8_Wj7PLcHR2DqazlLFos1IQ-EWPp-5049CUMJnHpPGTVhb1afcVweeyu8qKTKAK51RAM3icsjFrSk8kN-0XxmGSYw8sRr7bn3r6pUq3zQxVdlXWuEz8Ew31Lq8F_9y_UOJ55GfH3ZCoQb6zqVw2z-tJjmVebYkmK8453XDDgEm1ij5zqDoSaaqFwemF912tWGeS0KQBZI/https%3A%2F%2F68.schedule.icann.org%2Fmeetings%2F4h27u2A9rBqt8annP>
>       - Thu, 25 June session: https://community.icann.org/x/9YBIC
>       <https://secure-web.cisco.com/1ujFn4O60g6BlFlEKQGIGGxL5RHVLVLCkiVaELqIlC5FE3llxfQn7Cos9CXO86MaSCxMT8--rT2jrOniXJOORiIv_6_pZMqK7aG3G3nye4CroyZlOK0v_AVlMmpd_j8M5Wvl-l6XoXlhePeb6NGxUCJR6hbNVeAPW0i3UrnK43DPDUyAL8HzmPjSuzoMQND4RG6ynDxvRlOXOCmtWfHfCykKa2gt9qMOpj-2rBKnShM_j4BytucfKLkqwDsDacktd1P4ckEbAgOSfF27t_4nUrA/https%3A%2F%2Fcommunity.icann.org%2Fx%2F9YBIC>
>
>
>    - Each proposal section includes its full language (in the yellow
>    box), as well as the rationale provided by the original proponent.
>    - Under each proposal, there are two sections:
>
> 1) Public Comment Deliberation Summary:
>
>    - “WG Initial Deliberation Summary” contains the summary of the
>       current round of public comment review by the WG, including any action
>       item/decision by the WG regarding the individual proposal.
>       - If the WG decides *not* to preserve the proposal for further
>       deliberation/consensus call, the summary is recorded under “WG Final
>       Deliberation Summary”.
>
> 2) Final Recommendation Language Derived from the Individual Proposal (If
> Applicable): this section will include the recommendation language if an
> individual proposal gains consensus to become a WG final recommendation.
>
>
>
> The update of this document will be ongoing. You are welcome to provide
> input/feedback and point out any error/mischaracterization/missing content
> on list.
>
>
>
> Best Regards,
>
> Mary, Julie, Ariel
>
>
>
>
>
>
>
>
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