[GNSO-TPR] Notes and action items: TPR WG Meeting ICANN76 Session 2 - 12 March at 10:30 EST

Sun Mar 12 18:14:26 UTC 2023

Dear TPR WG members,

Please find below the notes and action items from today’s meeting.   Please refer to the recording and transcript for the formal record of the meeting.

The next meeting will be on Tuesday, 28 March at 16:00 UTC.

Best regards,

Emily, Julie, Berry, and Caitlin

***The action items and notes are not meant to reflect a transcription of the meeting – refer to the recording and transcript for a formal record of the meeting***

ACTION ITEMS/HOMEWORK: WG members to take the issues raised by George Kirikos back to their groups for consideration.

Notes:

Transfer Policy Review – ICANN76 Session 2

Proposed Agenda

12 March 2023

1. Introduction

Issues raised by George Kirikos:

1.       Length of limitation period of 12 months – shorten period where all parties are aware of the issue; unauthorized or disputed ownership, this limitation should be longer, but not sure if 12 months is correct.  Should pay more attention to the change of registrant procedure.  TDRP isn’t suited for a change of ownership dispute.

2.       Bug in TDRP – When the Temp Spec was put in place the Losing Registrar can win 100 percent of the TDRP disputes because the Gaining Registrar doesn’t have access to the Whois info for the FOA (because of GDPR).  Gaining registrars are not collecting the FOA any longer because of the redactions in data of the Whois, so everything's based on the Auth Info code. See: https://www.icann.org/resources/pages/tdrp-2016-06-01-en (current TDRP, look at 3.2.4(ii) as that is a problem!).  The dispute resolution panel shall find that the transfer should be reversed.  Specifically: “If the Gaining Registrar is unable to provide a complete FOA with data matching that contained within the authoritative Whois database at the time of the transfer request, then the Dispute Resolution Panel shall find that the transfer should be reversed.”

3.       Long registration period creating confusion with ownership of the domain name in case of an invalid transfer – see: https://en.wikipedia.org/wiki/Bona_fide_purchaser -- performing due diligence due to GDRP and lack of access to data/Whois history on ownership.  See 3.2.4.vi in the policy – “Transfers from a Gaining Registrar to a third registrar, and all other subsequent transfers, are invalid if the Gaining Registrar acquired sponsorship of the domain name(s) at issue through an Invalid Transfer, as determined through the dispute resolution process set forth in this Transfer Dispute Resolution Policy.”

Discussion:

-          Might be a good data point, and that would be something trackable at the registry but what would bemopaque to a registry might be a change of registrants and how many times an event like that may have occurred within a registrar.  Those might be helpful data attributes for a gaining registrar to make an informed decision about accepting a domain name. So that you'd have a better indication, and even some statistics, to know how big or small this is as an issue.  We had some challenges in understanding how often the transfer dispute resolution policy comes into effect when things are sort of sorted out between registrars. This might be helpful data to be collecting or gathering as part of this process. Help us make more informed decisions.

-          The issue is that TDRP is taking up a position on who should be the rightful owner of the domain name, which might be inconsistent with what the actual law is, and it might be better just to leave it at the law and collect good evidence and make those ownership transfers far more transparent instead of opaque.

-          Seems like this was written as an anti-money laundering rule.

ACTION ITEM: WG members to take the issues raised by George Kirikos back to their groups for consideration.

2. Gap Analysis - Reversal of Inter-Registrar Transfers

Here is a link to the gap analysis: https://docs.google.com/document/d/1Mq-Zu-fTdu4xrI1h1YPB1ITGRTxAp2gKzef7cTkgnNg/edit?usp=sharing

Discussion:

  *   TEAC – Issue of the very short time to respond (4 hours): Thought given for accommodating boutique registrars.  Discussed in our regular weekly meetings that it creates a high barrier for smaller registrars.  Suggested changing to 24 hours.  Also nothing about the time frame for resolution.
  *   TEAC – No real definition of what constitutes an emergency.  It could be help if we could frame the terms for when it can be used.  How can it be an emergency if it isn’t invoked until 12 months later?
  *   TEAC – Time frame for resolution – no requirements.  Note that if there isn’t agree to change the policy the status quo (current policy) prevails.
  *   TEAC – Losing registrar doesn’t face the loss of accreditation – what happens if you don’t respond in time to the TEAC? Both Transfer Policy and TDRP mention that there could be penalties, but the details aren’t described.
  *   TEAC/TDRP – Used very seldom; that could change if they are used more.  But the argument to not change them could be because they aren’t used.
  *   TEAC – Suggested that TEAC process could go through the NSP – Naming Services Portal.  Registries would prefer that for tracking and transparency.  Would require changes at the NSP.
  *   TDRP – Think about lighter weight processes that could kick in.
  *   TEAC – Not a resolution mechanism – it is a contact point. Need a light weight resolution mechanism.
  *   TDRP – There are registrars who have never used the TDRP.  Realize that the landscape has changed since the IRTP.
  *   Make sure to not open new gaps if we recommend changes.
  *   Important to consider the locking periods when we consider time frames.  Need to be thinking that there is certainty of title and dependencies.
  *   Look at roll back to the prior DNS – comments?
     *   This idea of rolling back the DNS – by the gaining registrar?  The registry would change back their DNS to the Losing Registrar.  Sounds easier in practice than it would be.  Deserves further study.  More complicated if DNSSEC is involved.
     *   Settlements between registrars being done on a case-by-case basis – need to keep that flexibility.
     *   Need to be careful with this – what is the recourse if you get it wrong?  Who has the responsibility to correct this?  Could use the courts, but parties have to post a security bond, which could be a barrier.  Informal method might work better.
  *   Does the WG agree that there should be a transfer reversal policy separate from the TDRP – if so we should fill out the charge (link above).  If there are enough missing pieces (gaps) then the WG should think about whether this requires new policy.
     *   The unmet need might be where the registrar doesn’t want to represent the registrant in a dispute.  WG will have to consider how far they want to pursue that – even if just making a recommendation to Council that someone should look at it.
     *   Consider all of the reasons that the IRTP didn’t move forward on the ETRP – WG should look at the issues the IRTP encountered before and how things might be different now.  Here is the presentation with background on the ETRP and the reasons it did not move forward: https://community.icann.org/download/attachments/222268453/TEAC%20%2B%20TDRP%20%2B%20EDRP%20Slides.pdf?version=1&modificationDate=1676391058000&api=v2
     *   Could recommend that the GNSO could look at in future (indemnification) --  lots of gaining registrars are hesitant to reverse transfers informally where the circumstances are murky because they often get the short end of the stick in terms of liability.

3. Closing

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