June 2017 - Gnso-igo-ingo-crp

Attempt at Achieving Full Consensus -- Option #4
by George Kirikos July 26, 2017

July 26, 2017

Hi folks, After today's call, I was doing some brainstorming, and wish to present a skeleton proposal for a new Option #4, as a possible viable alternative to Options #1, #2 and #3. First, my strong inclination remains with Option #1, with Option #3 (the limited waiver adjustment to the UDRP language, as opposed to a full waiver as is currently the case, as mentioned by Paul Keating) being my second choice. However, here's my idea for Option #4: (a) For all domains with a creation date prior to the adoption of our final report (say January 1, 2018, for the sake of argument), we go with Option #1 (i.e. this reflects the grandfathering we've discussed previously for existing domain names already created, thereby not taking away the legal rights of registrants (or successors in interest, i.e. transfers) of currently registered domain names. (b) For all domains with a creation date past January 1, 2018, we go with Option #2 (not the current document that was sent to the mailing list today, but a much more polished and thoroughly reviewed version, with stronger due process protections for registrants, including a 2nd level of appeals if necessary and also with the full "open court principle" in effect for all documents/evidence, for all those cases (not just decisions, but also all filings, cross-examinations, etc. in the case) with copies to be maintained on a public website by ICANN (as they do now for their "Litigation" section of their website. (c) All UDRP/URS providers must flag *all* of their disputes involving IGOs as complainants, sending the information to ICANN which will maintain a public record of them (like they used to do for UDRPs, but stopped doing). Not only does ICANN have to track any arbitrations invoked in point (b) above, but ICANN must also track any/all court disputes invoked and subject to point (a) (i.e. the grandfathered domain names), and obtain (at ICANN's expense) all the relevant public court documents/filings/evidence. (d) And here's the key insight, that follows from (a), (b) and (c) -- at the earliest date of (i) five years or (ii) after 10 (or some other number) disputes involving IGOs via Option #2 (i.e. counting just non-grandfathered domains, where the arbitration system might offer less due process than the courts), ICANN shall convene a "review" working group to analyze all of the cases involving IGOs (both grandfathered and non-grandfathered), for the limited purpose of reviewing whether or not the arbitration system has adequately served those domain name registrants (i.e. offered the equivalent level of justice as the court system). Should that review find that the level of due process was equivalent to the courts (i.e. no outrageous decisions/outcomes/process failures, etc. that offends the sensibilities of community, etc.), then Option #2 could continue (for newly created domains only; grandfathered domains would always stay grandfather via Option #1). In the event that arbitration turns out to be an abysmal failure, i.e. subject to forum shopping issues, etc., then newly created domains would revert back to Option #1 (vitiation), just like the grandfathered domain names. That working group shall also seek the input of all parties to the disputes, to get their input on the success of the procedure. So, in other words, we "try out" Option #2, just for newly created domains, while preserving full legal rights under Option #1 for grandfathered domains. Then we impose the obligation upon ICANN, the UDRP/URS providers, and the arbitration providers (via the mandated open court principle) to provide a future "review working group" the ability to go back and double check that there were no negative consequences in the decision to "try out" Option #2 as an experiment. (I was going to use the term "unforeseen consequences", but I think we *can* foresee some of those potential consequences already!) Lastly, we build in a clause that should ICANN fail to complete such a review within 7 years total (measured from the adoption of our final report, i.e. January 1, 2018 for the sake of argument plus 7 years would be January 1, 2025), then Option #2 is eliminated, and we go back to Option #1. Call this a "self-termination" clause, to ensure that a future review itself isn't gamed. i.e. the default is that we go back to Option #1 for everyone, except if a full review determines we can continue with Option #2 for newly created domains. The entire justification of this PDP was due to the new gTLD process. So, this recommendation would say "fine, experiment on newly created domains, both new gTLDs and legacy TLDs to boot; review and assess, and either continue it if no negaitve consequences, or kill it and revert to Option #1 if there are problems". This solves a lot of the issues where ICANN makes bad policies, and then never reviews them (i.e. UDRP being reviewed after 20 years!). Here, we're *building in* the mandatory review as part of our consensus decision-making, if folks agree to go this route. Furthermore, we're empowering that future review working group, *and* ensuring they have all the data that's needed to do a proper review. As we've seen from other working groups, most ICANN policies never contemplated being reviewed, and thus never mandated ongoing data collection. Here, we'd be requiring that data collection from the start. This proposal is still in skeleton form, but I'm posting it now, while the ICANN meeting is ongoing in Joburg, in the hopes we can get some feedback potentially from anyone there, as it might help break an impasse (although, I still believe Option #1 is the best, by a great margin, for reasons previously discussed in depth). Of course, anyone in this PDP with thoughts can post to the mailing list as well, or we can also discuss during a future regular PDP call. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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Proposed Implementation of GNSO Consensus Policy Recommendations for the Protection of IGO&INGO Identifiers in All gTLDs
by George Kirikos July 8, 2017

July 8, 2017

FYI, ICANN published this last night: https://www.icann.org/public-comments/igo-ingo-protection-2017-05-17-en and conceivably it might impact our work to some degree. More comments later, once I've had time to analyze it fully. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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Advice on IGOs from the GAC's Johannesburg Communique
by Mary Wong July 3, 2017

July 3, 2017

Dear Working Group members, You may be interested to know that the GAC Communique from this meeting in Johannesburg (ICANN59) has been released: https://gacweb.icann.org/download/attachments/27132037/GAC%20ICANN59%20Comm… “In respect of IGOs, the GAC advice to the Board is: The GAC reiterates its Advice that IGO access to curative dispute resolution mechanism should: I. be modeled on, but separate from, the existing Uniform Dispute Resolution Policy (UDRP) II. provide standing based on IGOs’ status as public intergovernmental institutions, and III. respect IGOs’ jurisdictional status by facilitating appeals exclusively through arbitration. The GAC expresses concern that a GNSO working group has indicated that it may deliver recommendations which substantially differ from GAC Advice, and calls on the ICANN Board to ensure that such recommendations adequately reflect input and expertise provided by IGOs. RATIONALE This Advice aligns with the view of governments that IGOs perform important public functions for citizens worldwide, and that protecting their identities in the DNS serves to minimize the potential for consumer harm.” Thanks and cheers Mary

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FW: [Discussion-igo-rc] Meetings in Johannesburg relating to IGO Protection
by Phil Corwin June 27, 2017

June 27, 2017

Working Group members: FYI, below is a message sent by Brian Beckham of WIPO to the informal discussion group on IGO issues chaired by Bruce Tonkin. In regard to the "rapid relief mechanism" referenced in the email, I would agree that it falls outside the scope of our work. Best to all, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: discussion-igo-rc-bounces(a)icann.org [mailto:discussion-igo-rc-bounces@icann.org] On Behalf Of Beckham, Brian Sent: Friday, June 16, 2017 5:33 AM To: Bruce Tonkin; discussion-igo-rc(a)icann.org Subject: Re: [Discussion-igo-rc] Meetings in Johannesburg relating to IGO Protection Thanks for this update Bruce. We are keen to see at the Tuesday session in Johannesburg the extent to which the IGO curative WG has incorporated (i) longstanding GAC Advice, (ii) the GAC's comments to the IGO curative WG Initial Report, and (iii) agreement reached in Copenhagen on the public policy rationale for the protection sought by IGOs. On a slightly different note, I would again like to recall here ICANN's agreement in an October 4, 2016 letter from Dr. Crocker to the GNSO Council Chair and Vice-Chairs that "ICANN will facilitate the creation of a mechanism through which an Eligible IGO may obtain a rapid temporary suspension of a domain name in situations where it would not be reasonable for it to use the agreed Dispute Resolution Mechanism [i.e., where] there is an obvious risk of imminent harm from the claimed abuse of such domain name, (e.g. such as fraudulently soliciting donations in the wake of a humanitarian disaster)." Again, just to briefly recall, the GAC's comments to the IGO curative WG Initial Report framed this not as a mere repackaging of the existing URS (or UDRP), but as "an emergency relief (e.g., 24-48 hours) domain name suspension mechanism to combat risk of imminent harm" and noted that this previously-agreed "Rapid relief mechanism" falls outside the scope of the IGO curative WG. Best regards, and safe travels to everyone. Brian From: discussion-igo-rc-bounces(a)icann.org<mailto:discussion-igo-rc-bounces@icann.org> [mailto:discussion-igo-rc-bounces@icann.org] On Behalf Of Bruce Tonkin Sent: Friday, June 16, 2017 11:03 AM To: discussion-igo-rc(a)icann.org<mailto:discussion-igo-rc@icann.org> Subject: [Discussion-igo-rc] Meetings in Johannesburg relating to IGO Protection Hello All, Please note that I am now using a different email address. I have had a few questions about whether there will be any further facilitated discussion on IGO protections in Johannesburg. (1) Regarding the watch list suggestion from the facilitated discussion in Copenhagen. I am aware that ICANN staff have done some further analysis of the options to provide such a service and will brief the Board. I expect the Board will consider the information, and hopefully we will hear whether they plan to proceed with some form of service. (2) The GNSO IGO-INGO Curative Rights Protections Policy Development Process Working Group<https://schedule.icann.org/event/B49J/gnso-igo-ingo-curative-rights-protect…> will be holding a 90 min public session at the Johannesburg meeting at 10:30am on Tuesday 27 June 2017. Details are available at: https://schedule.icann.org/event/B49J/gnso-igo-ingo-curative-rights-protect… I plan to attend this session to learn more about how the policy work has evolved since the public comment process on their initial report. I recommend all members of this discussion list that will be in Johannesburg come along as well. I don't believe there is value in having a further facilitated dialogue until we all know how the work of the working group has progressed since Copenhagen. I will be happy to chat to anyone after that session, and open to any suggestions on how I can help in any way. Regards, Bruce Tonkin

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Slides and documents for the Curative Rights PDP Working Group open session today
by Mary Wong June 27, 2017

June 27, 2017

Hello all – it appears that an email from yesterday did not get sent successfully, so I’m resending as a reply to an earlier email. Please note that staff has uploaded a set of slides as well as a brief discussion document from our co-chairs to both the Working Group wiki space (https://community.icann.org/x/owffAw) and the ICANN59 meeting page for our session (http://sched.co/B49J) The discussion document is a one-page set of points on arbitration elements that our co-chairs prepared, to facilitate the ongoing discussion on this topic. They will walk the attendees through it during the open Working Group meeting on Tuesday at 10.30 Johannesburg time. Thanks and cheers Mary On 6/26/17, 10:07, "Mary Wong" <mary.wong(a)icann.org> wrote: Hello everyone, The session will focus on providing an update on where the Working Group is, in terms of reviewing (and in some cases, possibly amending) its preliminary recommendations. There should also be time to continue the ongoing discussions Options 1 & 2 for Recommendation #4, as well as any other business (AOB). Based on our consultations with Petter and Phil, staff has put together a numbered agenda that has been posted on the Working Group wiki space: https://community.icann.org/x/owffAw. We are also preparing a few slides that will have the timeline and include the text of the original preliminary recommendations as well as notes on which are not being changed, and which are or might be - the slides will be few as the intention is that the session be devoted more to discussion rather than presentations. Cheers Mary On 6/26/17, 06:40, "gnso-igo-ingo-crp-bounces(a)icann.org on behalf of Julie Bisland" <gnso-igo-ingo-crp-bounces(a)icann.org on behalf of julie.bisland(a)icann.org> wrote: Dear All, Here is the link for the audio bridge phone numbers: https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_meet… This information can also be found on the GNSO Remote Participation Details Open and Public Meetings Wiki Page: https://urldefense.proofpoint.com/v2/url?u=https-3A__tinyurl.com_ydej5ugu&d… Best to all, Julie -----Original Message----- From: gnso-igo-ingo-crp-bounces(a)icann.org [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of George Kirikos Sent: Sunday, June 25, 2017 5:22 PM To: gnso-igo-ingo-crp(a)icann.org Subject: [Gnso-igo-ingo-crp] ICANN59 remote participation for IGO PDP Hi folks, The details of the upcoming call on Tuesday (Joburg time) are at: https://urldefense.proofpoint.com/v2/url?u=https-3A__schedule.icann.org_eve… namely: Tuesday, June 27, 10:30 am - 12:00 noon Joburg time (4:30 am - 6 am NYC time, 1:30 am - 3 am Los Angeles time) Adobe Connect: https://participate.icann.org/jnb59-committeeroom4 I couldn't find any dial-in telephone number to participate, though? Perhaps Mary or Terri or one of the other ICANN staff can confirm whether there is a dial-in available like our normal calls? Also, has an agenda or any documents (e.g. Powerpoint, although PDF is best) been circulated for this call? Sincerely, George Kirikos 416-588-0269 https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwICAg&… _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp(a)icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp(a)icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

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Proposed Tuesday session agenda (Re: ICANN59 remote participation for IGO PDP)
by Mary Wong June 26, 2017

June 26, 2017

Hello everyone, The session will focus on providing an update on where the Working Group is, in terms of reviewing (and in some cases, possibly amending) its preliminary recommendations. There should also be time to continue the ongoing discussions Options 1 & 2 for Recommendation #4, as well as any other business (AOB). Based on our consultations with Petter and Phil, staff has put together a numbered agenda that has been posted on the Working Group wiki space: https://community.icann.org/x/owffAw. We are also preparing a few slides that will have the timeline and include the text of the original preliminary recommendations as well as notes on which are not being changed, and which are or might be - the slides will be few as the intention is that the session be devoted more to discussion rather than presentations. Cheers Mary On 6/26/17, 06:40, "gnso-igo-ingo-crp-bounces(a)icann.org on behalf of Julie Bisland" <gnso-igo-ingo-crp-bounces(a)icann.org on behalf of julie.bisland(a)icann.org> wrote: Dear All, Here is the link for the audio bridge phone numbers: https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_meet… This information can also be found on the GNSO Remote Participation Details Open and Public Meetings Wiki Page: https://urldefense.proofpoint.com/v2/url?u=https-3A__tinyurl.com_ydej5ugu&d… Best to all, Julie -----Original Message----- From: gnso-igo-ingo-crp-bounces(a)icann.org [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of George Kirikos Sent: Sunday, June 25, 2017 5:22 PM To: gnso-igo-ingo-crp(a)icann.org Subject: [Gnso-igo-ingo-crp] ICANN59 remote participation for IGO PDP Hi folks, The details of the upcoming call on Tuesday (Joburg time) are at: https://urldefense.proofpoint.com/v2/url?u=https-3A__schedule.icann.org_eve… namely: Tuesday, June 27, 10:30 am - 12:00 noon Joburg time (4:30 am - 6 am NYC time, 1:30 am - 3 am Los Angeles time) Adobe Connect: https://participate.icann.org/jnb59-committeeroom4 I couldn't find any dial-in telephone number to participate, though? Perhaps Mary or Terri or one of the other ICANN staff can confirm whether there is a dial-in available like our normal calls? Also, has an agenda or any documents (e.g. Powerpoint, although PDF is best) been circulated for this call? Sincerely, George Kirikos 416-588-0269 https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwICAg&… _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp(a)icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp(a)icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

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Re: [Gnso-igo-ingo-crp] ICANN59 remote participation for IGO PDP
by Julie Bisland June 26, 2017

June 26, 2017

Dear All, Here is the link for the audio bridge phone numbers: https://gnso.icann.org/en/meetings/dial-in-23may17-en.pdf This information can also be found on the GNSO Remote Participation Details Open and Public Meetings Wiki Page: https://tinyurl.com/ydej5ugu Best to all, Julie -----Original Message----- From: gnso-igo-ingo-crp-bounces(a)icann.org [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of George Kirikos Sent: Sunday, June 25, 2017 5:22 PM To: gnso-igo-ingo-crp(a)icann.org Subject: [Gnso-igo-ingo-crp] ICANN59 remote participation for IGO PDP Hi folks, The details of the upcoming call on Tuesday (Joburg time) are at: https://urldefense.proofpoint.com/v2/url?u=https-3A__schedule.icann.org_eve… namely: Tuesday, June 27, 10:30 am - 12:00 noon Joburg time (4:30 am - 6 am NYC time, 1:30 am - 3 am Los Angeles time) Adobe Connect: https://participate.icann.org/jnb59-committeeroom4 I couldn't find any dial-in telephone number to participate, though? Perhaps Mary or Terri or one of the other ICANN staff can confirm whether there is a dial-in available like our normal calls? Also, has an agenda or any documents (e.g. Powerpoint, although PDF is best) been circulated for this call? Sincerely, George Kirikos 416-588-0269 https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwICAg&… _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp(a)icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

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ICANN59 remote participation for IGO PDP
by George Kirikos June 25, 2017

June 25, 2017

Hi folks, The details of the upcoming call on Tuesday (Joburg time) are at: https://schedule.icann.org/event/B49J/gnso-igo-ingo-curative-rights-protect… namely: Tuesday, June 27, 10:30 am - 12:00 noon Joburg time (4:30 am - 6 am NYC time, 1:30 am - 3 am Los Angeles time) Adobe Connect: https://participate.icann.org/jnb59-committeeroom4 I couldn't find any dial-in telephone number to participate, though? Perhaps Mary or Terri or one of the other ICANN staff can confirm whether there is a dial-in available like our normal calls? Also, has an agenda or any documents (e.g. Powerpoint, although PDF is best) been circulated for this call? Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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ICANN and Contracts of Adhesion: Supreme Court of Canada ruling that might impact our work
by George Kirikos June 23, 2017

June 23, 2017

Hi folks, There was an interesting ruling today from the Supreme Court of Canada, that might impact our work (and ICANN policymaking in general). See the article at: http://www.michaelgeist.ca/2017/06/supreme-court-rules-facebook-cant-contra… The text of the decision is at: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16700/index.do In particular, it speaks to whether non-negotiated "take-it-or-leave it" online contracts are enforceable. "The automatic nature of the commitments made with online contracts intensifies the scrutiny for clauses that have the effect of impairing a consumer’s access to potential remedies." "The burdens of forum selection clauses on consumers and their ability to access the courtsystem range from added costs, logistical impediments and delays, to deterrent psychological effects. When online consumer contracts of adhesion contain terms that *****unduly impede the ability of consumers to vindicate their rights in domestic courts******, particularly their quasi-constitutional or constitutional rights, public policy concerns outweigh those favouring enforceability of a forum selection clause." "It would be contrary to public policy to enforce a forum selection clause in a consumer contract that has the effect of depriving a party of access to a statutorily mandated court." (emphasis added) I would argue that compelling binding arbitration for disputes initiated by IGOs takes away rights of registrants, and is a contract of adhesion via this decision that cannot be enforced in Canada. This supports "Option 1" analysis of maintaining the status quo as much as possible, to not let ICANN policymaking tamper local laws. As Professor Geist concluded: "With the majority ruling against the enforceability of the forum selection clause, the court has demonstrated their *****discomfort with non-negotiated online terms that place consumers at a significant disadvantage and may result in a loss of rights.***** While forum selection clauses are an obvious manifestation of that, the *****reasoning might also be applied to other online contractual terms that seek to override important laws and protections.******* These could include contractual terms that seek to override copyright user rights or local consumer safeguards. The decision will undoubtedly have a significant impact on online contracting in Canada, forcing many online companies to reconsider whether their agreements are fully enforceable and *****emboldening consumers to stand up for their rights.*****" (emphasis added) Obviously this would impact other ICANN-mandated policies too that are the result of unequal bargaining power between registrants and ICANN/registries/registrars. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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GNSO Policy and Outreach sessions - every morning 08:00 - 08:30 local time ICANN59
by Nathalie Peregrine June 22, 2017

June 22, 2017

Dear all, As a reminder, GNSO Policy and Outreach sessions will be held at the beginning of each meeting day. During these sessions, the GNSO Policy Support Team will provide a briefing that aims to assist attendees in their preparation for the GNSO topics that are on the agenda for that specific day. This session is intended to be informative and interactive. Please join us with any questions you may have. They will be held from 08:00 – 08:30 local time every day in Committee 4, except for Tuesday 27 June, when that particular session will be held in Ballroom 2. Remote participation is available. Please remember to add these sessions to your schedules (go to https://schedule.icann.org/<https://urldefense.proofpoint.com/v2/url?u=https-3A__schedule.icann.org_&d=…>, create a profile and add the sessions you’re interested in) in order to receive all the updates and/or changes. Kind regards, Nathalie Nathalie Peregrine Specialist, SOAC Support (GNSO) Internet Corporation for Assigned Names and Numbers (ICANN) Email: nathalie.peregrine(a)icann.org <nathalie.peregrine(a)icann.org%20> Skype: nathalie.peregrine.icann Find out more about the GNSO by taking our interactive courses<applewebdata://EB3A6F47-9760-400D-A39B-A7EFFC56B467/learn.icann.org/courses…> and visiting the GNSO Newcomer pages<https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_sites_gn…>

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