April 2008 - council - lists.icann.org

RE: [gnso-dt-wg] FW: Summary of public comments on a draft GNSO Council resolution to curb domain tasting
by Tim Ruiz 02 Apr '08

02 Apr '08

My recollection of the discussion and reasoning is pretty the same as Jeff's and Mike's, with one exception. Not all thought the ICANN fee needed to be coupled with this policy (if it does become policy). I for one felt that if this does become policy, the ICANN fee would only need to apply in a TLD until that registry implements the policy (I think it was Alan that suggested something like that). Tim -------- Original Message -------- Subject: RE: [gnso-dt-wg] FW: Summary of public comments on a draft GNSO Council resolution to curb domain tasting From: "Mike Rodenbaugh" <mxrodenbaugh(a)yahoo.com> Date: Wed, April 02, 2008 9:53 am To: <gnso-dt-wg(a)icann.org>, "'Council GNSO'" <council(a)gnso.icann.org> The purpose of the public comment period, and the updated Constituency statements, was to see if any new issues would be raised wrt to the specific motion proposed by the design team. The design team met yesterday and discussed the nuances that were raised in those comments and statements. However there was not consensus, nor even support from more than one participant, to change the motion as drafted. There was consensus that to change the motion would likely introduce more delay. Furthermore, there was not consensus to add suggestions from IP interests because of the consensus belief that the current motion, if implemented and coupled with the general non-refundability of the 'ICANN fee' proposed by the Board, would virtually eliminate commercial domain tasting. As for the proposals to eliminate the AGP altogether, that is an old debate, resolved in favor of the instant motion -- which is a compromise by all stakeholders, that I feel should be unanimously supported by Council. To that end, I formally make a motion to adopt the draft motion as set forth for public comment, by vote in our April 17 meeting. Thanks, Mike Rodenbaugh -----Original Message----- From: owner-gnso-dt-wg(a)icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Rosette, Kristina Sent: Wednesday, April 02, 2008 7:28 AM To: Neuman, Jeff; Avri Doria; gnso-dt-wg(a)icann.org Cc: Council GNSO Subject: RE: [gnso-dt-wg] FW: Summary of public comments on a draft GNSO Council resolution to curb domain tasting As you know, Jeff, I specifically focused on the individual comments. I did not raise *at all* the private sector comments. Call participants reacted to those individual comments by either stating something to the effect of "oh, it's just the same persons commenting over and over again" and "they don't really get how the AGP has all these legitimate uses that the registrars [included in their PowerPoint]". That dismissive attitude was and is the basis for my comment. -----Original Message----- From: Neuman, Jeff [mailto:Jeff.Neuman@neustar.us] Sent: Wednesday, April 02, 2008 10:19 AM To: Rosette, Kristina; Avri Doria; gnso-dt-wg(a)icann.org Cc: Council GNSO Subject: RE: [gnso-dt-wg] FW: Summary of public comments on a draft GNSO Council resolution to curb domain tasting It is no surprise you believe the comments were not given the consideration warranted since (i) you wrote some of them (or they were copies of what you wrote) and (ii) the motion does not reflect those comments. Let me state for the record, I do believe the comments were given due consideration not just yesterday, but in the months of this flawed process. Even before the motion was crafted, it was discussed whether he AGP should be eliminated. Registries and Registrars believed it should not and provided evidence as to the necessity of the AGP. This was discussed also in Dehli over and for the past year before that (even during the informational gathering stage). The comments asking for elimination of the AGP from you, INTA (which you wrote), the large companies (who are all members of INTA), just reiterate subjects already discussed. And yes, this was raised by certain members of the GA, but again, this was discussed. Sorry to be so blunt, but I do not want the Council or to the GA, to be left with what I personally believe is the wrong impression. Jeffrey J. Neuman, Esq. Sr. Director, Law, Advanced Services & Business Development NeuStar, Inc. e-mail: Jeff.Neuman(a)Neustar.us -----Original Message----- From: owner-gnso-dt-wg(a)icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Rosette, Kristina Sent: Wednesday, April 02, 2008 9:58 AM To: Avri Doria; gnso-dt-wg(a)icann.org Cc: Council GNSO Subject: RE: [gnso-dt-wg] FW: Summary of public comments on a draft GNSO Council resolution to curb domain tasting We didn't talk about providing a summary, but here's my take on it: It is accurate to say that there was support for not changing the motion. (I did not agree on several points, but ultimately decided that it was necessary to agree to disagree given my singular status on these points.) Only comments raised by participants were discussed. There was no systematic effort to track the public comment summary provided by staff. Comments that Council should define or delineate "exceptional circumstances" and "regularly" or should instruct Staff to do so in implementation were not acted upon on the ground that doing so would cause delay in action on motion and that review period could be relied upon to disclose abuses. Comments that "exceptional circumstances" information should be publicly disclosed were not acted upon on the ground that that information is the business of only the relevant registry, registrar, and ICANN staff, and that review period can be relied upon to disclose abuses. Comments that a timeframe for implementation should be added were not acted upon on the ground that implementation is beyond scope. There was general agreement that implementation should occur in a reasonable time. Extensive discussion about whether Council should include in motion provision regarding budget mechanism. General agreement that should be included in motion, but follow on motion may be appropriate. As best I could determine, I was the only who supported budget mechanism in addition to policy. Out of concern that the team would later be accused of ignoring public comment, I started a discussion on the fact that a number of comments had called for elimination of the AGP or indicated that elimination was the preferred mechanism. My personal view is that these comments were not given the consideration they warrant. -----Original Message----- From: owner-gnso-dt-wg(a)icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Avri Doria Sent: Wednesday, April 02, 2008 9:01 AM To: gnso-dt-wg(a)icann.org Cc: Council GNSO Subject: Re: [gnso-dt-wg] FW: Summary of public comments on a draft GNSO Council resolution to curb domain tasting Hi, I am wondering whether the DT is going to go through all the comments and include an initial response to them in their report to the council or whether the council itself will approach then raw at the council meeting. I am fine either way, though I think having the DT do the first pass a responding to all comments will facilitate the work and give a better perspective. I want to make sure that in our deliberations we cover all of the possibilities and issues mentioned in the public comments, including those that are not direct comments on the motion before the council or the proposals before the Registry Services Evaluation Process. I.e. we should discuss not only modification to the AGP but must make sure we cover in our discussions the proposal to eliminate the AGP. We also need to make sure we understand the implications of the current motion on the proposal before the Registry Services Evaluation Process and the Board resolution (2008.01.04) to investigate using ICANN's budgetary process to control DT through the introduction of fees . thanks a.

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RE: [council] 27 March resolution on WHOIS
by Tim Ruiz 02 Apr '08

02 Apr '08

Thanks Liz. I would like to volunteer. Tim -------- Original Message -------- Subject: [council] 27 March resolution on WHOIS From: Liz Gasster <liz.gasster(a)icann.org> Date: Wed, April 02, 2008 10:44 am To: Council GNSO <council(a)gnso.icann.org> Cc: Glen_De_Saint_G�ry <glen(a)icann.org> All, As you know, last week the Council unanimously approved a motion on WHOIS as follows: Resolved to form a group of volunteers to: 1. Review and discuss the 'Report on Public Suggestions on Further Studies of WHOIS' 2. Develop a proposed list, if any, of recommended studies for which ICANN staff will be asked to provide cost estimates to the Council 3. Deliver the list of recommendations with supporting rationale not later than 24 April 2008. Glen and I would like to get this group started. May we ask for volunteers this week? We can then set up a call for early next week. Thanks, Liz

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RE: [gnso-dt-wg] FW: Summary of public comments on a draft GNSO Council resolution to curb domain tasting
by Rosette, Kristina 02 Apr '08

02 Apr '08

As you know, Jeff, I specifically focused on the individual comments. I did not raise *at all* the private sector comments. Call participants reacted to those individual comments by either stating something to the effect of "oh, it's just the same persons commenting over and over again" and "they don't really get how the AGP has all these legitimate uses that the registrars [included in their PowerPoint]". That dismissive attitude was and is the basis for my comment. -----Original Message----- From: Neuman, Jeff [mailto:Jeff.Neuman@neustar.us] Sent: Wednesday, April 02, 2008 10:19 AM To: Rosette, Kristina; Avri Doria; gnso-dt-wg(a)icann.org Cc: Council GNSO Subject: RE: [gnso-dt-wg] FW: Summary of public comments on a draft GNSO Council resolution to curb domain tasting It is no surprise you believe the comments were not given the consideration warranted since (i) you wrote some of them (or they were copies of what you wrote) and (ii) the motion does not reflect those comments. Let me state for the record, I do believe the comments were given due consideration not just yesterday, but in the months of this flawed process. Even before the motion was crafted, it was discussed whether he AGP should be eliminated. Registries and Registrars believed it should not and provided evidence as to the necessity of the AGP. This was discussed also in Dehli over and for the past year before that (even during the informational gathering stage). The comments asking for elimination of the AGP from you, INTA (which you wrote), the large companies (who are all members of INTA), just reiterate subjects already discussed. And yes, this was raised by certain members of the GA, but again, this was discussed. Sorry to be so blunt, but I do not want the Council or to the GA, to be left with what I personally believe is the wrong impression. Jeffrey J. Neuman, Esq. Sr. Director, Law, Advanced Services & Business Development NeuStar, Inc. e-mail: Jeff.Neuman(a)Neustar.us -----Original Message----- From: owner-gnso-dt-wg(a)icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Rosette, Kristina Sent: Wednesday, April 02, 2008 9:58 AM To: Avri Doria; gnso-dt-wg(a)icann.org Cc: Council GNSO Subject: RE: [gnso-dt-wg] FW: Summary of public comments on a draft GNSO Council resolution to curb domain tasting We didn't talk about providing a summary, but here's my take on it: It is accurate to say that there was support for not changing the motion. (I did not agree on several points, but ultimately decided that it was necessary to agree to disagree given my singular status on these points.) Only comments raised by participants were discussed. There was no systematic effort to track the public comment summary provided by staff. Comments that Council should define or delineate "exceptional circumstances" and "regularly" or should instruct Staff to do so in implementation were not acted upon on the ground that doing so would cause delay in action on motion and that review period could be relied upon to disclose abuses. Comments that "exceptional circumstances" information should be publicly disclosed were not acted upon on the ground that that information is the business of only the relevant registry, registrar, and ICANN staff, and that review period can be relied upon to disclose abuses. Comments that a timeframe for implementation should be added were not acted upon on the ground that implementation is beyond scope. There was general agreement that implementation should occur in a reasonable time. Extensive discussion about whether Council should include in motion provision regarding budget mechanism. General agreement that should be included in motion, but follow on motion may be appropriate. As best I could determine, I was the only who supported budget mechanism in addition to policy. Out of concern that the team would later be accused of ignoring public comment, I started a discussion on the fact that a number of comments had called for elimination of the AGP or indicated that elimination was the preferred mechanism. My personal view is that these comments were not given the consideration they warrant. -----Original Message----- From: owner-gnso-dt-wg(a)icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Avri Doria Sent: Wednesday, April 02, 2008 9:01 AM To: gnso-dt-wg(a)icann.org Cc: Council GNSO Subject: Re: [gnso-dt-wg] FW: Summary of public comments on a draft GNSO Council resolution to curb domain tasting Hi, I am wondering whether the DT is going to go through all the comments and include an initial response to them in their report to the council or whether the council itself will approach then raw at the council meeting. I am fine either way, though I think having the DT do the first pass a responding to all comments will facilitate the work and give a better perspective. I want to make sure that in our deliberations we cover all of the possibilities and issues mentioned in the public comments, including those that are not direct comments on the motion before the council or the proposals before the Registry Services Evaluation Process. I.e. we should discuss not only modification to the AGP but must make sure we cover in our discussions the proposal to eliminate the AGP. We also need to make sure we understand the implications of the current motion on the proposal before the Registry Services Evaluation Process and the Board resolution (2008.01.04) to investigate using ICANN's budgetary process to control DT through the introduction of fees . thanks a.

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RE: [council] 27 March resolution on WHOIS
by Gomes, Chuck 02 Apr '08

02 Apr '08

The following have volunteered from the RyC: David Maher, Ken Stubbs, and Jordi Iparragirre. If that is too many please let us know. Chuck Sent from my GoodLink Wireless Handheld (www.good.com) -----Original Message----- From: Liz Gasster [mailto:liz.gasster@icann.org] Sent: Wednesday, April 02, 2008 11:49 AM Eastern Standard Time To: Council GNSO Cc: Glen De Saint Géry Subject: [council] 27 March resolution on WHOIS All, As you know, last week the Council unanimously approved a motion on WHOIS as follows: Resolved to form a group of volunteers to: 1. Review and discuss the 'Report on Public Suggestions on Further Studies of WHOIS' 2. Develop a proposed list, if any, of recommended studies for which ICANN staff will be asked to provide cost estimates to the Council 3. Deliver the list of recommendations with supporting rationale not later than 24 April 2008. Glen and I would like to get this group started. May we ask for volunteers this week? We can then set up a call for early next week. Thanks, Liz

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Re: [council] RE: [gnso-dt-wg] FW: Summary of public comments on a draft GNSO Council resolution to curb domain tasting
by cyrilchua＠atmdlaw.com.sg 02 Apr '08

02 Apr '08

Jeff, for the record, Kristina speaks for the IPC and our entire constituency stands behind her comments. Kind regards, Cyril Chua Partner IP & Technology Group -------- Alban Tay Mahtani & de Silva LLP 39 Robinson Road #07-01, Robinson Point, Singapore 068911 Tel: (65) 6534 5266 / Fax: (65) 6223 8762 / DID: (65) 6428 9812 http://www.atmdlaw.com.sg -------- ALBAN TAY MAHTANI & DE SILVA LLP < This message (including attachments) contains privileged and confidential information. If you are not the intended recipient, you are not to take any action in reliance on it nor to disseminate, distribute, publish or copy this message. If you have received this message in error, please accept our apologies, delete all copies from your system and notify us at mail(a)atmdlaw.com.sg. Unless it relates to the official business of ATMD, any opinions or matters expressed in this message are those of the individual sender. > ----- Original Message ----- From: "Rosette, Kristina" [krosette(a)cov.com] Sent: 04/02/2008 10:28 AM AST To: "Neuman, Jeff" <Jeff.Neuman(a)neustar.us>; "Avri Doria" <avri(a)acm.org>; <gnso-dt-wg(a)icann.org> Cc: "Council GNSO" <council(a)gnso.icann.org> Subject: [council] RE: [gnso-dt-wg] FW: Summary of public comments on a draft GNSO Council resolution to curb domain tasting As you know, Jeff, I specifically focused on the individual comments. I did not raise *at all* the private sector comments. Call participants reacted to those individual comments by either stating something to the effect of "oh, it's just the same persons commenting over and over again" and "they don't really get how the AGP has all these legitimate uses that the registrars [included in their PowerPoint]". That dismissive attitude was and is the basis for my comment. -----Original Message----- From: Neuman, Jeff [mailto:Jeff.Neuman@neustar.us] Sent: Wednesday, April 02, 2008 10:19 AM To: Rosette, Kristina; Avri Doria; gnso-dt-wg(a)icann.org Cc: Council GNSO Subject: RE: [gnso-dt-wg] FW: Summary of public comments on a draft GNSO Council resolution to curb domain tasting It is no surprise you believe the comments were not given the consideration warranted since (i) you wrote some of them (or they were copies of what you wrote) and (ii) the motion does not reflect those comments. Let me state for the record, I do believe the comments were given due consideration not just yesterday, but in the months of this flawed process. Even before the motion was crafted, it was discussed whether he AGP should be eliminated. Registries and Registrars believed it should not and provided evidence as to the necessity of the AGP. This was discussed also in Dehli over and for the past year before that (even during the informational gathering stage). The comments asking for elimination of the AGP from you, INTA (which you wrote), the large companies (who are all members of INTA), just reiterate subjects already discussed. And yes, this was raised by certain members of the GA, but again, this was discussed. Sorry to be so blunt, but I do not want the Council or to the GA, to be left with what I personally believe is the wrong impression. Jeffrey J. Neuman, Esq. Sr. Director, Law, Advanced Services & Business Development NeuStar, Inc. e-mail: Jeff.Neuman(a)Neustar.us -----Original Message----- From: owner-gnso-dt-wg(a)icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Rosette, Kristina Sent: Wednesday, April 02, 2008 9:58 AM To: Avri Doria; gnso-dt-wg(a)icann.org Cc: Council GNSO Subject: RE: [gnso-dt-wg] FW: Summary of public comments on a draft GNSO Council resolution to curb domain tasting We didn't talk about providing a summary, but here's my take on it: It is accurate to say that there was support for not changing the motion. (I did not agree on several points, but ultimately decided that it was necessary to agree to disagree given my singular status on these points.) Only comments raised by participants were discussed. There was no systematic effort to track the public comment summary provided by staff. Comments that Council should define or delineate "exceptional circumstances" and "regularly" or should instruct Staff to do so in implementation were not acted upon on the ground that doing so would cause delay in action on motion and that review period could be relied upon to disclose abuses. Comments that "exceptional circumstances" information should be publicly disclosed were not acted upon on the ground that that information is the business of only the relevant registry, registrar, and ICANN staff, and that review period can be relied upon to disclose abuses. Comments that a timeframe for implementation should be added were not acted upon on the ground that implementation is beyond scope. There was general agreement that implementation should occur in a reasonable time. Extensive discussion about whether Council should include in motion provision regarding budget mechanism. General agreement that should be included in motion, but follow on motion may be appropriate. As best I could determine, I was the only who supported budget mechanism in addition to policy. Out of concern that the team would later be accused of ignoring public comment, I started a discussion on the fact that a number of comments had called for elimination of the AGP or indicated that elimination was the preferred mechanism. My personal view is that these comments were not given the consideration they warrant. -----Original Message----- From: owner-gnso-dt-wg(a)icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Avri Doria Sent: Wednesday, April 02, 2008 9:01 AM To: gnso-dt-wg(a)icann.org Cc: Council GNSO Subject: Re: [gnso-dt-wg] FW: Summary of public comments on a draft GNSO Council resolution to curb domain tasting Hi, I am wondering whether the DT is going to go through all the comments and include an initial response to them in their report to the council or whether the council itself will approach then raw at the council meeting. I am fine either way, though I think having the DT do the first pass a responding to all comments will facilitate the work and give a better perspective. I want to make sure that in our deliberations we cover all of the possibilities and issues mentioned in the public comments, including those that are not direct comments on the motion before the council or the proposals before the Registry Services Evaluation Process. I.e. we should discuss not only modification to the AGP but must make sure we cover in our discussions the proposal to eliminate the AGP. We also need to make sure we understand the implications of the current motion on the proposal before the Registry Services Evaluation Process and the Board resolution (2008.01.04) to investigate using ICANN's budgetary process to control DT through the introduction of fees . thanks a.

1 0

27 March resolution on WHOIS
by Liz Gasster 02 Apr '08

02 Apr '08

All, As you know, last week the Council unanimously approved a motion on WHOIS as follows: Resolved to form a group of volunteers to: 1. Review and discuss the 'Report on Public Suggestions on Further Studies of WHOIS' 2. Develop a proposed list, if any, of recommended studies for which ICANN staff will be asked to provide cost estimates to the Council 3. Deliver the list of recommendations with supporting rationale not later than 24 April 2008. Glen and I would like to get this group started. May we ask for volunteers this week? We can then set up a call for early next week. Thanks, Liz

1 0

Re: [gnso-dt-wg] FW: Summary of public comments on a draft GNSO Council resolution to curb domain tasting
by Avri Doria 02 Apr '08

02 Apr '08

Hi, I am wondering whether the DT is going to go through all the comments and include an initial response to them in their report to the council or whether the council itself will approach then raw at the council meeting. I am fine either way, though I think having the DT do the first pass a responding to all comments will facilitate the work and give a better perspective. I want to make sure that in our deliberations we cover all of the possibilities and issues mentioned in the public comments, including those that are not direct comments on the motion before the council or the proposals before the Registry Services Evaluation Process. I.e. we should discuss not only modification to the AGP but must make sure we cover in our discussions the proposal to eliminate the AGP. We also need to make sure we understand the implications of the current motion on the proposal before the Registry Services Evaluation Process and the Board resolution (2008.01.04) to investigate using ICANN's budgetary process to control DT through the introduction of fees . thanks a.

2 1

RE: [gnso-dt-wg] FW: Summary of public comments on a draft GNSO Council resolution to curb domain tasting
by Rosette, Kristina 02 Apr '08

02 Apr '08

That's not an accurate characterization. -----Original Message----- From: owner-gnso-dt-wg(a)icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Neuman, Jeff Sent: Wednesday, April 02, 2008 9:39 AM To: Avri Doria; gnso-dt-wg(a)icann.org Cc: Council GNSO Subject: RE: [gnso-dt-wg] FW: Summary of public comments on a draft GNSO Council resolution to curb domain tasting Avri, We discussed these in detail yesterday on our call and believe no changes are warranted to the motion. Also FYI, we expect that ICANN staff will announce in the next day or so that the board approved the proposals by NeuStar and Afilias to modify the AGP. Feel free to forward to the council list as I do not have permission. Jeffrey J. Neuman, Esq. Sr. Director, Law, Advanced Services & Business Development NeuStar, Inc. e-mail: Jeff.Neuman(a)Neustar.us -----Original Message----- From: owner-gnso-dt-wg(a)icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Avri Doria Sent: Wednesday, April 02, 2008 9:01 AM To: gnso-dt-wg(a)icann.org Cc: Council GNSO Subject: Re: [gnso-dt-wg] FW: Summary of public comments on a draft GNSO Council resolution to curb domain tasting Hi, I am wondering whether the DT is going to go through all the comments and include an initial response to them in their report to the council or whether the council itself will approach then raw at the council meeting. I am fine either way, though I think having the DT do the first pass a responding to all comments will facilitate the work and give a better perspective. I want to make sure that in our deliberations we cover all of the possibilities and issues mentioned in the public comments, including those that are not direct comments on the motion before the council or the proposals before the Registry Services Evaluation Process. I.e. we should discuss not only modification to the AGP but must make sure we cover in our discussions the proposal to eliminate the AGP. We also need to make sure we understand the implications of the current motion on the proposal before the Registry Services Evaluation Process and the Board resolution (2008.01.04) to investigate using ICANN's budgetary process to control DT through the introduction of fees . thanks a.

1 0

Meeting with ALAC in Paris
by Avri Doria 02 Apr '08

02 Apr '08

Hi, Cheryl Langdon-Orr, chair of ALAC has suggested that the council and ALAC meet as a follow-on to the cocktail hour we had at the last meting. While I am not positive that it wil be possible to schedule it, gien the shortened time scale of the meeting and the events already schedule, I have agreed to ask the staff to look into scheduling. Cheryl and I are going to draw up a draft agenda for this potential meeting. I would be interested in getting the opinion of council members on the meeting as well as any idea for agenda items. thanks a.

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RE: [gnso-dt-wg] FW: Summary of public comments on a draft GNSO Council resolution to curb domain tasting
by Rosette, Kristina 01 Apr '08

01 Apr '08

Some very brief comments incorporated below. ________________________________ From: owner-gnso-dt-wg(a)icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Neuman, Jeff Sent: Monday, March 31, 2008 4:34 PM To: Liz Gasster; gnso-dt-wg(a)icann.org Cc: Council GNSO Subject: RE: [gnso-dt-wg] FW: Summary of public comments on a draft GNSO Council resolution to curb domain tasting All, To start some discussion on these public comments on the recommendations in the Additional Analysis Section, I just wanted to give some of my thoughts: * Comments on "extraordinary circumstances" provision of the pending draft motion. Several comments voice concern that the language would provide a loophole and be unenforceable. ED, INTA, HL, Dell. INTA suggests adding an illustrative list of the types of circumstances that would be considered "extraordinary". Jeff Neuman - I disagree this is a loophole and believe that fears are overstated and I would recommend not addressing this in the motion as it will just result in delay. There is no way we will be able to develop an exhaustive list. This is why we have review periods built in....if there are problems, the review period will address them. Kristina Rosette - It's not clear to me how the review period will address potential abuse of the "extraordinary circumstances" exemption unless information about those exemptions is made public. How will that happen? Without it, the only information we'll have is the number of Deletes Add Grace (from the monthly reports) . It won't be possible to determine from that number alone whether a registrar sought an exemption or not, or whether it was granted or not. Moreover, even if Staff has access to the specific information regarding the "extraordinary circumstances", a non-public information regime would prevent Staff from disclosing which registrars and registries were taking advantage of the exemption. * Concerns about the need for stepped up enforcement. DF, JW, CADNA Jeff Neuman - Not sure what to say here, except this is a comment for ICANN staff. Is there more insight into this? * There were specific recommendations to change certain provisions in the draft motion, as follows: * In the clause that states: "During any given month, an Applicable gTLD Operator may not offer any refund to a registrar for any domain names deleted during the AGP that exceed (i) 10% of that registrar's net new registrations in that month", change "may not" to "shall not". INTA, HL, Dell Jeff Neuman - This is the problem with comments being submitted by lawyers (and not contract attorneys) :-) Seriously, if the above language were in a contract ("may not"), there is no difference between that and "shall not". While the words "may" and "shall" have different meanings if used in contracts, "may not" and "shall not" have the same meaning. For example, stating Registry "may" offer a refund has a different meaning than "shall offer a refund," but "may not" and "shall not" are the same. Both are mandatory. Lets not over lawyer a GNSO motion. Remember, the GNSO is not responsible for crafting contract language, but rather just policies. That said, I would be happy to hear other thoughts on this. Kristina Rosette: The suggestion was partly prompted by the recent use by Council and some working groups of the SHALL/MUST/MAY conventions in RFC whatever-it-is. * Provide specific guidance as to the meaning of "regularly" in paragraph 1.b of the motion, regarding the frequency of circumstance that would not be considered extraordinary. INTA, Dell Jeff Neuman - Disagree with this comments for same reasons as the first comment on "extraordinary circumstances." This too would be over-lawyering and I believe would result in delay. Again, there is a review period to address this. Kristina Rosette: See comments above. If the information isn't disclosed to the public, how will we know? * Require public disclosure of information that is required to be reported by applicable gTLD operators. INTA Jeff Neuman - I disagree with this comment. It should be disclosed to ICANN, but not to the public. For example, lets say a registrar's systems are hacked into and this results in a number of registrations that need to be deleted within the AGP. The number of registrations end up constituting more than 10% of their adds for a specific TLD. An exemption is granted by the Registry for the additional deletes. This potentially embarrassing information is no business for the pubic at large. It is up to ICANN to enforce these policies. The registries would oppose this and I am fairly confident the registrars would as well. Kristina Rosette: I disagree with you, Jeff, for several reasons in addition to those I noted in my first comment above. First, if a registrar wants an exemption from the application of consensus policy, having that information made publicly available is the trade-off. Second, it is entirely possible that the basis for the requested exemption could present a security and stability issue (hacking, for example), which would provide an additional reason for making the information publicly available. Finally, I believe registrants are entitled to know if their registrars are experiencing "extraordinary circumstances" sufficient to cause the registrar to seek an exemption. I think most registrants would want to know if, for example, their registrar's system has been hacked into. I would. * Establish time frames for implementation. INTA Jeff Neuman - The .com agreement states: "Registry Operator shall be afforded a reasonable period of time following notice of the establishment of a Consensus Policy or Temporary Specifications or Policies in which to comply with such policy or specification, taking into account any urgency involved." This is an issue for ICANN staff. The implementation of a Consensus Policy is not a matter of "policy", but rather contract and is outside of the "picket fence." Changing the motion to provide a time frame for implementation would likely garner opposition from the registries and would result in significant delay. Kristina Rosette: Are you objecting to any and all timeframes for implementation? Or, only those that would be considered unreasonable by the RyC? Thanks. Jeffrey J. Neuman, Esq. Sr. Director, Law, Advanced Services & Business Development NeuStar, Inc. e-mail: Jeff.Neuman(a)Neustar.us <mailto:Jeff.Neuman@Neustar.us> ________________________________ From: owner-gnso-dt-wg(a)icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Liz Gasster Sent: Monday, March 31, 2008 3:12 PM To: gnso-dt-wg(a)icann.org Cc: Council GNSO Subject: [gnso-dt-wg] FW: Summary of public comments on a draft GNSO Council resolution to curb domain tasting Forwarded is staff's summary of the public comments received within the public comment period. It should be posted shortly to the public comments page for this topic. http://www.icann.org/public_comment/#domain-tasting Thanks, Liz ________________________________ From: Liz Gasster Sent: Monday, March 31, 2008 12:07 PM To: 'domain-tasting-motion(a)icann.org' Cc: 'GNSO.SECRETARIAT(a)GNSO.ICANN.ORG' Subject: Summary of public comments on a draft GNSO Council resolution to curb domain tasting Summary and analysis of public comments on a draft GNSO Council resolution to curb domain tasting Comment period: 7 March 2008 - 28 March 2008 Summary published: 31 March 2008 Prepared by: Liz Gasster, Senior Policy Counselor, ICANN staff Background: In spring 2007, the At Large Advisory Committee (ALAC), asked the GNSO Council to review the subject of "domain tasting". The term domain tasting refers to a case when someone registers a domain name and then tests to see if the name has sufficient traffic to provide more income than the annual registration fee (usually through pay-per-click advertising). If the address is deemed profitable, it is kept. If not, the current "add grace period" - where domains can be returned within five days without cost - is used to return the domain at no net cost to the registrant. There has been a significant increase in the number of domains registered and returned and some are concerned that the add-grace period represents a loophole that facilitates this conduct. In response to the ALAC's request, the GNSO Council requested that ICANN staff prepare an issues paper for review and discussion. The GNSO Council discussed the Issues Report <http://gnso.icann.org/issues/domain-tasting/gnso-domain-tasting-report- 14jun07.pdf> at ICANN's San Juan meeting in June 2007, and created a working group to gather more information. The working group published an Outcomes Report <http://gnso.icann.org/drafts/gnso-domain-tasting-adhoc-outcomes-report- final.pdf> in October 2007 which suggested three terms of reference for next steps, as follows: 1. Review and assess all the effects of domain tasting activities that have been identified. 2. Judge whether the overall effects justify measures to be taken to impede domain tasting. 3. If the answer to 2 is affirmative, then consider the potential impacts of various measures on the Constituencies, and recommend measures designed to impede domain tasting. As a result of both reports, the GNSO Council decided on 31 October 2007 to launch a formal policy development process (PDP) into domain tasting. An Initial Report <http://gnso.icann.org/issues/domain-tasting/gnso-initial-report-domain- tasting-07jan08.pdf> was produced for public comment, outlining the policy development process, possible actions to be taken to curb domain tasting including changes to the add grace period, and the impact of potential measures on the GNSO constituencies. Public comments have been incorporated into a draft Final Report, http://www.gnso.icann.org/drafts/draft-final-report-domain-tasting-08feb 08.pdf (posted 8 February), which has been supplied to the GNSO Council for its review and further action on the PDP. Following the launch of the PDP, a small drafting group of the GNSO Council drafted a motion that would restrict the applicability of the AGP to a maximum of 50 deletes per registrar per month or 10% of that registrar's net new monthly domain name registrations, whichever is greater. This proposal is the subject of this 21-day public comment period. The specific language of the draft motion is set forth in Attachment I. Also on 31 October, the GNSO voted to encourage ICANN staff to consider applying the annual fee to all registrations and staff is pursuing incorporating this change in the context of the upcoming budget proposal. Subsequently, on 29 January 2008, the ICANN Board recommended that ICANN charge the annual fee for all registrations. Though not specifically solicited at this time, many of the comments received also offered comments on this pending proposal. General comments: A total of 41 public comments were received during the public comment period. Of those, 15 were multiple postings by the same individuals reinforcing previous points (many of which were also email threads also posted to other lists). 22 of the 26 non-duplicative comments received agreed that steps should be taken to curb domain tasting. Four comments do not object to domain tasting. JE, GC, FVS, KT. One comment (KT) emphasized the importance of distinguishing between domain tasting and domain "kiting", referred to by that commenter as "the re-registration of a domain name by the same registrar when it is dropped..." The 22 remaining comments reflect a plurality of views on the best course of action that should be taken to reduce domain tasting. Viewpoints coalesced around three of the options that have been most widely discussed, as follows: 1. Nine comments support the pending draft motion to prohibit gTLD operators from offering any refund to a registrar for any domain names deleted during the AGP that exceed (i) 10% of that registrar's net new registrations in that month (defined as total new registrations less domains deleted during AGP), or (ii) fifty (50) domain names, whichever is greater. ED, Neustar, INTA, YAHOO, CADNA, HL, eBAY, PayPal, Dell. Several of these comments emphasize important improvements that are needed, these are described further below. Several of these comments suggest that they would prefer outright elimination of the add grace period (INTA, eBAY, perhaps others), but are supporting this option as an initial policy step to assess whether it would be effective in significantly curbing domain tasting, before pushing for tougher measures. 2. Seven comments support elimination of the add grace period entirely. PS, AN, CM, DF, JW, TLDA, JT. These comments have the view that other measures, such as the approach contained in the proposed motion, will not be effective in curbing domain tasting. These comments also take the view that the primary reason that registrars want to preserve the AGP, such as to address typographical errors and other registration mistakes, can be better addressed by implementing a "double opt-in" purchase verification system. These comments also cite the ability of registrars to employ other more effective means to substitute for reliance on the AGP, such as measures to detect fraud and other uses identified by registrars. One comment supports reducing the AGP to 24 hours. IDOA. 3. Four comments support the proposed change to the ICANN budget that would charge the $.20 fee for all registrations. PJ, JAW, ICA, USCIB. Two of these three comments raise concerns with other options and view the budget option as an essential first step. USCIB leaves open the possibility of supporting other options that might also be effective in its view. Two comments specifically object to the option of revising the budget. Neustar, CM In addition, two comments objected to the draft motion but did not voice support for any other options. JA, JH Additional analysis: In addition to commenting on the threshold questions discussed above, several comments raised important details that are noted below: * Comments on "extraordinary circumstances" provision of the pending draft motion. Several comments voice concern that the language would provide a loophole and be unenforceable. ED, INTA, HL, Dell. INTA suggests adding an illustrative list of the types of circumstances that would be considered "extraordinary". * Concerns about the need for stepped up enforcement. DF, JW, CADNA * There were specific recommendations to change certain provisions in the draft motion, as follows: * In the clause that states: "During any given month, an Applicable gTLD Operator may not offer any refund to a registrar for any domain names deleted during the AGP that exceed (i) 10% of that registrar's net new registrations in that month", change "may not" to "shall not". INTA, HL, Dell * Provide specific guidance as to the meaning of "regularly" in paragraph 1.b of the motion, regarding the frequency of circumstance that would not be considered extraordinary. INTA, Dell * Require public disclosure of information that is required to be reported by applicable gTLD operators. INTA * Establish time frames for implementation. INTA Next Steps: Staff will incorporate these comments, and any updated constituency statements received, into a final report by 4 April 2008. The GNSO Council will then review and consider these comments and the final report. The Council is scheduled to consider the matter further, including motions that may be drafted or updated prior to its scheduled 17 April meeting. Contributors, in order of first appearance (with abbreviation) and number of postings if more than one: Paul Scheufler (PS) Eduardo Diaz (ED) John Erickson (JE) Pamela Jones (PJ) Jeff Neuman for Neustar (Neustar) Jack Avilar (JA) - 2 submissions Anon "domain tasting" (AN) James Walker (JAW) Chris McElroy (CM) - 4 submissions Gilbert Cheung (GC) Dominik Filipp (DF) - 6 submissions Jeff Williams (JW) - 5 submissions Claudio DiGangi for the International Trademark Association (INTA) Karl Peters for TLDA (TLDA) - 2 submissions Freddy VanSant (FVS) J. Scott Evans for Yahoo (Yahoo) Karen Thompson (KT) Phil Corwin for the Internet Commerce Association (ICA) Jacob Hearst (JH) Joop Teernstra (JT) Philip Lodico for the Coalition Against Domain Name Abuse (CADNA) Cameron Smith for Herbalife (HL) Matt Hooker for the Internet Domain Owners Association (IDOA) Susan Kawaguchi for PayPal (PayPal) Susan Kawaguchi for eBay (eBay) Christopher Martin for USCIB (USCIB) - [sent to ICANN staff, should be posted] Attachment I - Resolution on domain tasting approved 6 March 2008 Whereas, the GNSO Council has discussed the Issues Report on Domain Tasting and the Final Outcomes Report of the ad hoc group on Domain Tasting; Whereas, the GNSO Council resolved on 31 October 2007 to launch a PDP on Domain Tasting; Whereas, the GNSO Council authorized on 17 January 2008 the formation of a small design team to develop a plan for the deliberations on the Domain Tasting PDP (the "Design Team"), the principal volunteers to which had been members of the Ad Hoc Group on Domain Tasting and were well-informed of both the Final Outcomes Report of the Ad Hoc Group on Domain Tasting and the GNSO Initial Report on Domain Tasting (collectively with the Issues Report, the "Reports on Domain Tasting"); Whereas, the GNSO Council has received the Draft Final Report on Domain Tasting; Whereas, PIR, the .org registry operator, has amended its Registry Agreement to charge an Excess Deletion Fee; and both NeuStar, the .biz registry operator, and Afilias, the .info registry operator, are seeking amendments to their respective Registry Agreements to modify the existing AGP; The GNSO Council recommends to the ICANN Board of Directors that: 1. The applicability of the Add Grace Period shall be restricted for any gTLD which has implemented an AGP ("Applicable gTLD Operator"). Specifically, for each Applicable gTLD Operator: a. During any given month, an Applicable gTLD Operator may not offer any refund to a registrar for any domain names deleted during the AGP that exceed (i) 10% of that registrar's net new registrations in that month (defined as total new registrations less domains deleted during AGP), or (ii) fifty (50) domain names, whichever is greater. b. A Registrar may seek an exemption from the application of such restriction in a specific month, upon the documented showing of extraordinary circumstances. For any Registrar requesting such an exemption, the Registrar must confirm in writing to the Registry Operator how, at the time the names were deleted, these extraordinary circumstances were not known, reasonably could not have been known, and were outside of the Registrar's control. Acceptance of any exemption will be at the sole reasonable discretion of the Registry Operator, however "extraordinary circumstances" which reoccur regularly will not be deemed extraordinary. c. In addition to all other reporting requirements to ICANN, each Applicable gTLD Operator shall identify each Registrar that has sought an exemption, along with a brief descriptive identification of the type of extraordinary circumstance and the action (if any) that was taken by the Applicable gTLD Operator. 2. Implementation and execution of these recommendations shall be monitored by the GNSO. Specifically; a. ICANN Staff shall analyze and report to the GNSO at six month intervals for two years after implementation, until such time as the GNSO resolves otherwise, with the goal of determining; i. How effectively and to what extent the policies have been implemented and followed by Registries and Registrars, and ii. Whether or not modifications to these policies should be considered by the GNSO as a result of the experiences gained during the implementation and monitoring stages, b. The purpose of these monitoring and reporting requirements are to allow the GNSO to determine when, if ever, these recommendations and any ensuing policy require additional clarification or attention based on the results of the reports prepared by ICANN Staff.

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