August 2007 - council - lists.icann.org

Proposed endgame motion for Whois Task Force - with Whereas'es
by Avri Doria Sept. 2, 2007

Sept. 2, 2007

Proposed Text for motion to be voted on September 6 2007 --------------------------------------------------------- Whereas the Whois Task force report has not yet been voted on as required by the by-laws, Whereas the Whois WG was created to collect further information as defined in its terms of reference, Whereas the Whois WG has now completed its work, Whereas almost 6 months have gone by since the release of the Whois Task force report, Proposed: The GSNO Council should now complete this work on Whois and make its report to the ICANN community and to the ICANN Board. In order to complete the work the following steps will be taken as scheduled: 1 - Staff will produce a Draft Final Report that references the TF report, the WG charter and the WG report by and which includes an overall description of the process by September 13. This overview should include the text of motions to be voted on at the end of this process. 2 - This report will be sent out for Constituency Statement Review on September 13. Constituencies will be asked to follow the by-laws on constituency statements. Specifically : 1. Constituency Statements. The Representatives will each be responsible for soliciting the position of their constituencies, at a minimum, and other comments as each Representative deems appropriate, regarding the issue under consideration. This position and other comments, as applicable, should be submitted in a formal statement to the task force chair (each, a "Constituency Statement") within thirty-five (35) calendar days after initiation of the PDP. Every Constituency Statement shall include at least the following: (i) If a Supermajority Vote was reached, a clear statement of the constituency's position on the issue; (ii) If a Supermajority Vote was not reached, a clear statement of all positions espoused by constituency members; (iii) A clear statement of how the constituency arrived at its position(s). Specifically, the statement should detail specific constituency meetings, teleconferences, or other means of deliberating an issue, and a list of all members who participated or otherwise submitted their views; (iv) An analysis of how the issue would affect the constituency, including any financial impact on the constituency; and (v) An analysis of the period of time that would likely be necessary to implement the policy. Final Date for for updated statement: October 4, 2007 which is 35 days from the meeting when the Whois WG report was discussed 3 - Staff will Incorporate Constituency comments into Final Report by October 11, 2007 4 - Staff is requested to produce staff implementation notes by October 15 5 - Community Public Comment on Final Report: October 15 - November 6, 2007 6 - A Public and Council Discussion will be held during the LA Public Meeting 7 - Final vote on first GNSO Council meeting after November 6, 2007 ---------------------------

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RE: [council] Proposed amendment to BCUC motion
by Gomes, Chuck Aug. 31, 2007

Aug. 31, 2007

Thanks Mike. That helps me understand what you meant. Working for a thin registry, I don't see any financial advantages for us. Chuck Sent from my GoodLink Wireless Handheld (www.good.com) -----Original Message----- From: Mike Rodenbaugh [mailto:mxr@yahoo-inc.com] Sent: Thursday, August 30, 2007 09:05 PM Eastern Standard Time To: Gomes, Chuck; ross(a)tucows.com Cc: Council GNSO Subject: RE: [council] Proposed amendment to BCUC motion I understand that in the absence of any contractual provisions re an open and accessible WHOIS database, registries and registrars would completely control that data with no restrictions other than national law. Control of WHOIS data equals financial benefit. Maybe I am misunderstanding something, please enlighten me if so. Ross please should be precise ASAP about the contract provisions he proposes Council to suggest be eliminated. And please advise when and where this outcome was ever discussed in an ICANN public forum. Otherwise I think it is inappropriate for us to consider this motion, since the presented solution -- to a very important and long debated issue -- has not been debated substantially by the wider community, including several Working Groups designed to discuss the issues. To consider such a solution at Council would discredit the premise that ICANN is a bottom-up organization focused on consensus-based policymaking. We should focus on the incremental consensus that has been reached, and next steps to an implementable Consensus Policy. Mike Rodenbaugh -----Original Message----- From: Gomes, Chuck [mailto:cgomes@verisign.com] Sent: Thursday, August 30, 2007 5:20 PM To: Mike Rodenbaugh; ross(a)tucows.com Cc: Council GNSO Subject: RE: [council] Proposed amendment to BCUC motion Mike, To what are you referring when you say, "your proposal is also of financial benefit to Registries"? Chuck Gomes "This message is intended for the use of the individual or entity to which it is addressed, and may contain information that is privileged, confidential and exempt from disclosure under applicable law. Any unauthorized use, distribution, or disclosure is strictly prohibited. If you have received this message in error, please notify sender immediately and destroy/delete the original transmission." > -----Original Message----- > From: owner-council(a)gnso.icann.org > [mailto:owner-council@gnso.icann.org] On Behalf Of Mike Rodenbaugh > Sent: Thursday, August 30, 2007 1:34 PM > To: ross(a)tucows.com > Cc: Council GNSO > Subject: RE: [council] Proposed amendment to BCUC motion > > What else do the Registrars not like in their contracts? > Maybe you could propose a PDP to examine them for awhile, obstruct and > obfuscate the process so that there is no consensus as to continued > viability of those provisions, and so argue that they too should be > removed. If you are successful with this on WHOIS, what will be next? > > Of course, your proposal is also of financial benefit to Registries, > and satisfies the NCUC completely. So it is surprising they have > never to date advocated it, but will not be surprising if they agree > with it now. > I cannot imagine the other three Constituencies supporting it. So we > will have a deeply divided Council on this issue, obviously. > > So the answer then ought to be to work and discuss further to try to > reach consensus. The WG found consensus on several fundamental > points, even as to a general OPoC policy that was not supported by 3 > Constituencies. The WG also several factual points of contention > that, if resolved, could lead to consensus policy. We should not > throw away all the work that has gone into this, and decide on a > radical solution that has never previously been proposed or discussed. > > The existing contractual provisions are certainly not 'unsupported' > and obviously were the product of consensus among not only the > contracting parties but also the rest of the community. Everyone or > at least 'almost everyone' should agree on any change to that status > quo, including of course any proposal to eliminate it. > > Mike Rodenbaugh > > > -----Original Message----- > From: Ross Rader [mailto:ross@tucows.com] > Sent: Thursday, August 30, 2007 10:11 AM > To: Mike Rodenbaugh > Cc: Council GNSO > Subject: Re: [council] Proposed amendment to BCUC motion > > Mike Rodenbaugh wrote: > > Ross, you cannot honestly call this a 'proposed amendment' > to our > motion. It has nothing to do with our motion. > > Shall I assume then that you don't view this as a friendly amendment? > > > You are proposing that ICANN remove all existing contractual > provisions > > regarding WHOIS, on the basis that a consensus WHOIS policy has not > been > > achieved to date. That is the first time I have ever heard someone > > suggest that lack of consensus as to policy to change the > status quo, > > would lead to elimination of the status quo -- and thus in this > matter, > > elimination of an open and accessible WHOIS database. I am quite > > surprised to read such a proposal for the first time today, and > > surprised that you did not even mention it for discussion > on our GNSO > > call today, nor in the past 7 years of debate as far as I know. > > In reviewing this proposal today, I said that the matter before > council is to test consensus on the issue of Whois policy. I was very > clear about this when I reviewed this motion on the call today. If > council conducts this test and cannot find consensus, how does it > stand that the > > status quo should be the default position? This might benefit your > constituency, so I find your reaction understandable, but I don't > understand your reasoning that a lack of consensus concerning whois > policy means that the unsupported, non-consensus based contractual > conditions should continue to prevail. > > And for what its worth, I am not the first to advance this reasoning, > although I do believe that it is a proper way to proceed in the event > that there is no consensus regarding how Whois should be managed and > maintained. > > > > > I recall you stating at our GNSO Council meeting that > kicked off this > > WG, that you would see lack of consensus as meaning we carry on with > the > > status quo. Apparently your statements were disingenuous or your > > thinking has changed dramatically since. > > My thinking has changed, yes. My apologies for taking a less than > dogmatic approach. > > > It now seems clear that your > > long and hard battling on this issue has been designed to eliminate > ANY > > cost or obligation among registrars re WHOIS, rather than > to mitigate > > any 'increased' cost above the status quo, as you have so frequently > > argued. > > Actually both characterizations are incorrect. My policy object has > always been to improve the privacy of individuals as it relates to > Whois > > such that my organization can reasonably defend its business practice > to > > its customers in a meaningful way consistent with Canadian law. There > was also a time when I thought that supposed industry leaders might > take > > a similarly enlightened view. Too bad that protecting your trademarks > in > > 14 languages has to take precedent over making the internet a slightly > better place, although I understand why a large publicly traded > company might get its priorities mixed up once in a while. > > > > > These contractual provisions have existed for a very long time, for > very > > good reasons, and should not be considered for potential elimination > > without a PDP designed to analyze that potential outcome. > As far as I > > know, it simply has never been proposed or discussed that we would > > eliminate WHOIS altogether, so it would be ridiculous for Council to > > consider that as an option now. > > PDP stands for Policy Development Process. If you'd like to propose > that > > Council undertake a study to understand the implications of enacting, > or > > redacting a policy, your proposal might make some sense. In the > meantime, I've made a proposal that council support the elimination of > contractual terms for registrars on the basis that there is no > consensus > > policy to support these terms, nor any basis for consensus to be > achieved in this area. It also leaves the door open such that if > consensus policy on Whois services is developed in the future, than > these consensus policies would be implemented just like any other > consensus policy (i.e. Transfers, Data Reminder Policy, etc.) > > -- > Regards, > > Ross Rader > Director, Retail Services > Tucows Inc. > > http://www.domaindirect.com > t. 416.538.5492 > >

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Proposed amendment to BCUC motion
by Ross Rader Aug. 31, 2007

Aug. 31, 2007

I am not sure if this made it to the list or not, but this was intended to serve as an amendment to the proposed BCUC motion; Whereas; 1. The GNSO Council accepts the WG report and appreciates the efforts made by WG participants and ICANN staff in preparing this report. 2. The GNSO Council does not consider the WG report as sufficiently demonstrating consensus or agreement on substantive policy proposals. 3. The GNSO Council considers that the lack of consensus demonstrated through this open and inclusive working group is representative of the lack of agreement on key issues in this area of policy. 4. The GNSO Council recognizes that there is no standing consensus policy concerning the management of the Whois service and data provided to the public through that service by ICANN's contracted commercial operators, the registries and registrars. save and except the Whois Data Reminder Policy and the Whois Marketing Restriction Policy. Therefore; Be it resolved; a) that the GNSO Council concludes the current PDP on Whois. b) graciously thanks all of the volunteers, consultants, staff and others who have participated in the GNSO's examination of Whois policy over the last four years. c) that the GNSO Council makes no specific policy recommendation to the ICANN board at this time concerning Whois or related policy. d) that the GNSO Council recommends to the ICANN staff and Board of Directors that due to the lack of consensus on issues in this area that current contractual requirements concerning Whois for registries, registrars and registrants that are not supported by consensus policy be eliminated from the current operating agreements between ICANN and its contracted parties until such time that consensus policy in this area has been developed. -- Regards, Ross Rader Director, Retail Services Tucows Inc. http://www.domaindirect.com t. 416.538.5492

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Request for Observer Status
by Ross Rader Aug. 31, 2007

Aug. 31, 2007

Avri; At the end of the AGM this year, the registrar representatives to the Council will be changing. In order to better get our new representative up to speed, I would like to request that he be allowed to attend the Council teleconferences as a non-speaking, non-voting observer. I realize that the MP3s are available, but I think it would be more helpful if we could facilitate this in a real-time manner. Tim Ruiz is the incoming representative. As the former Vice-chair of the registrar constituency, he is well versed in GNSO dynamics, but is looking to get some further insight into council interactions before he officially takes his seat. I would really appreciate it if this can be facilitated somehow. Thanks in advance, -- Regards, Ross Rader Director, Retail Services Tucows Inc. http://www.domaindirect.com t. 416.538.5492

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FW: [tld] M rodenbaugh: proposed BC public comments on new TLDs
by Mike Rodenbaugh Aug. 30, 2007

Aug. 30, 2007

The Business and Commercial Users' Constituency is deeply concerned about abusive registrations in existing TLDs and in new TLDs. The GNSO Task Force's Final Report re New TLDs does very little to alleviate these concerns that well-known, large scale cybersquatting practices will expand unabated into new TLDs. Part of the reason for this omission is that solutions to abusive registration practices need to address both existing and new TLDs, and this Task Force was not scoped to address issues in existing TLDs. However, as the BC suggested in its Constituency Impact statement to the Task Force (Part B, Part 7 of the Final Report), we remain highly concerned that the proposed new TLD policy seems to ignore the problem of abusive registrations almost entirely. As we said in our Constituency Impact Statement, without substantial policy development designed to curb abusive registrations, we foresee, upon introduction of more new TLDs, a world of increased opportunity for abusive competitive practices and fraud -- including typo-squatting, phishing, malware distribution and other forms of bad faith activity. We then outlined a number of recommendations that could help to control these abusive practices: * graduated sanctions for contract non-compliance by Registries and Registrars * avoiding confusingly similar domain names * avoiding infringement of third party prior rights especially trade mark rights * clear, quick and low-cost procedures for dispute resolution and the removal of bad faith registrations * measures to prevent abuse of personal data or other commercially-valuable data. The Task Force has recommended that new TLDs not be confusingly similar to existing TLDs, but otherwise has largely avoided these recommendations and the issue of cybersquatting generally. It remains to be seen how this confusing similarity standard for TLDs could be adjudicated in practice, given the existing similarity of many existing TLDs (e.g. .com, .co, .cm, .cn, .ch ). The Task Force did not consider any other policy recommendations to attempt to curb abusive registrations. Rather, the Task Force has agreed to state potential Rights Protection Mechanisms ("RPMs") as Implementation Guidelines which could be employed by new TLD operators at their option. A small ad hoc group is working to draft those RPMs, but it is unclear whether new registry operators will choose to employ them since they will have no obligation to do so. Consequently, unless ICANN tackles the abusive registration problem directly and implements new policies prior to public availability of domains in any new TLDs, we expect that new TLDs may have a substantially negative impact on business users from: * user confusion about site ownership and subsequent reputational damage to well-known businesses * costs from diminished user confidence in e-commerce * wasted costs of defensive registrations and online brand monitoring and enforcement * wasted costs in legal and other actions to prevent avoidable criminal and cyber-squatting activity * wasted costs and fraudulent losses to businesses and their customers from phishing and malware sites. We hope that the new TLDs will only comprise a relatively small part of the overall cybersquatting problem. The problem appears likely to remain much more substantial in existing TLDs, particularly .com. Strong action is needed to begin to curb that existing problem for online businesses, and ensure it is not replicated in new TLDs. We urge ICANN to continue its work to address domain tasting, as it most certainly increases the volume of abusive registrations by allowing free use of domains. We further urge ICANN to consider mandatory Rights Protection Mechanisms and, in particular, a review of UDRP procedures and practices designed with the goal to make the UDRP rules more cost effective and timely to enforce, in hopes that they could someday act as a deterrent to cybersquatting. If ICANN continues to rely on the existing UDRP process as the sole, mandatory policy designed to curb abusive registrations, then many online businesses will continue to suffer significantly as many registrars, registries and ICANN continue to increase revenue from this illegal activity. We further expect the problem only will continue to grow in volume and intensity, as indicated by the rapid rise of phishing and malware sites that are generally not subject to rational resolution via the UDRP. In addition to clear, quick and low-cost procedures for dispute resolution and the removal of bad faith registrations, the BC would also like to see ICANN impose graduated sanctions on registrars and registries who are not in compliance with their contracts, including any consensus policies yet to be developed in an effort to curb cybersquatting. The BC is interested in all other ideas as to how abusive registrations can be abated, and remains eager to participate in any and all ICANN efforts to minimize them. Mike Rodenbaugh Officer, Business and Commercial Users Constituency ________________________________

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Fwd: Re: [council] WHOIS - final WG report
by Mawaki Chango Aug. 30, 2007

Aug. 30, 2007

Council, Please find attached a note on behalf of NCUC members, as a reaction to the latest questions and answers on the Whois WG final report, which were exchanged on this list by Chuck and Philip. Thanks, Mawali Note: forwarded message attached.

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Fwd: Comments on recommendations # 2 and 20.
by Mawaki Chango Aug. 30, 2007

Aug. 30, 2007

Colleagues, Please find attached herein the comments I submitted on the new gTLD policy, as it is not covered in the synopsis prepared and put forward before you earlier today. Thanks, Mawaki Note: forwarded message attached.

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BC proposal re WHOIS
by Mike Rodenbaugh Aug. 30, 2007

Aug. 30, 2007

All, The BC agrees with the WG that further study of WHOIS issues is warranted, however we believe the recommended studies should be conducted in phases so as to potentially conserve ICANN resources in the event that early studies show that later planned studies are not warranted or should be modified. Here is a proposed resolution from the Business Constituency: 1. The GNSO Council hereby accepts the WG report and acknowledges the tremendous effort by WG participants and ICANN staff. 2. The GNSO Council particularly recognizes the WG chair for his adept leadership through a contentious and controversial WG process. 3. The GNSO Council does not consider the WG report as an adequate basis for any implementation of OPOC. 4. The GNSO Council requests that ICANN staff proceed with the 4 studies described in Section 8 of the WG report, as follows: 1. Proceed with study 4 on the characteristics of the Whois database first. This study should include a review and analysis of the different proxy services. 2. Following completion of study 4, and to the extent it reveals that there is a problem with the current Whois policy, ICANN Staff should proceed with study one - the cost/benefit analysis. Completion of study 4 should help determine the parameters of the cost/benefit analysis, since the scope of the problem will be known and documented. 3. To the extent that the cost/benefit analysis determines that the benefits of changing the Whois policy exceed the costs, ICANN Staff should proceed with a third study that merges study two on self-certification (this should include an analysis of an ex post facto review mechanism) and study 3 on authentication (which should include authentication of any parties with a legitimate interest in the data). Thanks. Mike Rodenbaugh Officer, Business and Commercial Users Constituency

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WHOIS - final WG report
by Philip Sheppard Aug. 29, 2007

Aug. 29, 2007

Chuck, see replies below. Philip Last paragraph on page 9 * I am not totally clear on what "Agreed" means. * This was a group of 70 most of whom spoke for themselves or their organisation. No attempt was made to assess support by GNSO constituency or other interest grouping. No votes were conducted. Agreed recommendations were supported unanimously or by a substantial majority present at the relevant meeting when that item was discussed, and then received insufficient objections to downgrade them. Page 19, 1st paragraph * The reference to RAA clause 3.7.7.3 appears to me to cover the case when a registrant licenses use of a domain name registration to a proxy service provider but, if I understand correctly, there are also lots of cases where a proxy service provider is the actual registrant and the proxy service provider licences use of the domain name registration to what could be referred to as the underlying user of the name. Did the WG discuss the second scenario? The 'Agreed' statement says, "In order to avoid a third layer between the underlying Registrant and the OPOC, where a proxy service exists, the proxy and the first designated OPOC must be one and the same." Can I assume that 'underlying Registrant' could also mean the 'underlying licensee' in cases where the proxy service provider is actually the offical registrant? * The objective here is to avoid layers of obfuscation. All help from our service providers is welcome. Page 24, Implementation Options * The last option is: "other e.g. good faith". When I combine this with the lead in before the bullets, it would say, "Reason for Request is a reasonable suspicion of good faith." Should this say 'lack of good faith' instead of 'good faith'? * Poor editing - apologies. No. The "good faith" was a later addition. It is misplaced with the lead in. Page 27, Implementation Options * 12 hour and 72 hour time frames seem awfully short in cases where a registrant may be traveling, etc. Did the WG discuss such time frames? Did the WG conclude that such time frames were reasonable? * The last bullet says, "Existing provisions in certain Registry agreements may provide an implementation solution." This is also stated elsewhere. What provisions are referenced here? * Implementation options are just that - options. I simply wanted to record the suggestions mentioned by group members but to make it clear they were NOT policy. Page 53 ff * What do the numercial numbers in the column headings mean? 25.4, 2.9, etc. * 25.4 is the 25th day of April 2007.

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High level agenda through 28 October
by Avri Doria Aug. 29, 2007

Aug. 29, 2007

Hi, Chuck and I have been trying to set out the high level agenda through the LA meeting. I have enclosed a draft of that. At best this is a rough indicator as events might conspire to make it otherwise. But as part of the effort to make our work more predicatable, I figured we should try. You will notice that I have included a second interim teleconference on Sept 23rd and 2 days of face-to-face meetings in the schedule. Given the amount of important work before the council, and because I want to make sure we have enough time to give topics their due, I think we need these meetings. Of course we still need to decide as a council whether they will actually happen. As always, comments and corrections are most welcome. thanks a. ---- 30 Aug - Report from Whois group and discussion on issues and how to proceed. Update on status of Registry Transfer work 6 sept - Discussion and vote on New gTLD recommendations Decision on GA-list issue related to by-law obligations for email lists 23 sept (tentative) - Report from IDN-ccTLD group and discussion Follow up on Registry Transfer work Discuss agenda for LA public meeting 11 oct - Intergovernmental Organization Dispute Resolutuion Process (IGO-DRP) Report and decsion on next steps Domain Tasting report and decision on next step 27 oct (f2f) - Whois recommendation discussion/decisions IDN-ccTLD report followup as necessary Rights Protection Mechanism (RPM) discussion GAC meeting prep 28 oct (f2f)- GNSO reform discussion (assumes update from board Governance WG) Final prep for meeting especially Monday workshop on new gTLD recommendations Any pending issues not closed or emergent issues

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