Some very brief comments incorporated below. ________________________________ From: owner-gnso-dt-wg@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@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@Neustar.us <mailto:Jeff.Neuman@Neustar.us> ________________________________ From: owner-gnso-dt-wg@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@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@icann.org' Cc: 'GNSO.SECRETARIAT@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.