Hi all

At our last Council meeting we discussed the proposed deferral of a Policy Status Report (PSR) on the Expedited Domain Deletion Policy (EDDP) and Expedited Registration Recovery Policy (ERRP) (together referred to here as the “Expired Domains Policies”) and Damon and I noted that there was some concern from IPC members about deferring such a PSR.  We would now like to formally propose that Council does ask staff to conduct a PSR, and that we do not defer this request.  Our reasons are as follows:

 

• A PSR is simply a review of whether the Expired Domains Policies are operating effectively, as intended, and whether there are any issues or unintended consequences.  It would be a more formal review than has been done to date, with an opportunity for community review and input on the draft.  A PSR does not necessarily mean that further action or policy work would then be required, although of course this could be an outcome.
• IPC members do consider that there is an issue to be explored, and a need for data in order that the community can understand how the Expired Domains Policies operate in practice, when they are utilised and whether/how often domains never go through the EDDP process due to practices whereby domains do not actually expire, i.e. data on the number of domains that are:

• recaptured,
• re-registered,
• monetized and
• auctioned

by registrars and their affiliates.

• IPC members believe that such aftermarket practices have the potential to impact on competition as between registrars, since names are not allowed to lapse and thus are not available to other registrars to register.  They also impact would-be registrants, who cannot work with their choice of registrar but must acquire such domains through specific registrars and their affiliate auction houses.
• Further, when such domains do not expire, this can create legal problems with respect to the conjunctive bad faith registration requirements for cybersquatting claims in certain jurisdictions, which have viewed the date of initial registration (not the date of re-registration on transfer) as being the relevant date for assessment of bad faith.  Thus, an initial good faith registration is carried forward (inappropriately) to shield all subsequent bad faith uses from liability.  An example of this is GoPets Ltd, heard in the US 9^th Circuit which held that registration is determined at the time of the initial registration and not re-registration.  This holding creates a fairly big loophole that can cause serious harm to consumers.
• At a minimum, therefore, we consider that it is now an appropriate time for review and the gathering of data, in order to better inform the community. 
• The PDP Manual (Annex 2 of the GNSO Operating Procedures) clearly recognises the importance of reviewing policies after they have been implemented for a period, in s17:

Periodic Assessments of Approved Policies Periodic assessment of PDP recommendations and policies is an important tool to guard against unexpected results or inefficient processes arising from GNSO policies. PDP Teams are encouraged to include proposed timing, assessment tools, and metrics for review as part of their Final Report. In addition, the GNSO Council may at any time initiate reviews of past policy recommendations.

• In the case of the Expired Domains Policies, both have been in operation for many years, decades in the case of the EDDP, without review.  The EDDP became effective on 21 December 2004, the ERRP on 31 August 2013. The question of when to conduct a PSR came onto Council’s agenda in October 2020 and was deferred for two years.  It was discussed again in mid-2022, following which there were various actions undertaken by Org staff.  It is now mid-2024.  Given the age of these policies and the defacto 4-year deferral to date, a PSR is long overdue.  Even leaving aside the specific questions about the aftermarket referred to above, as a matter of good practice, and in order to meet the expectations of the PDP Manual, we believe that the PSR ought now to be requested and not postponed any further.

 

We do appreciate that staff, and indeed the community, have other important work on their plates, and thus that work on a PSR might not commence immediately.  Requesting the PSR will at least put this into the prioritisation queue so that appropriate resources can be allocated to this work in due course. Deferring the request for a PSR would mean that this does not happen. 

 

Thanks

 

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