Gnso-rpm-providers

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September 2018

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Actions & Notes: RPM PDP WG Meeting 05 Sept 2018
by Julie Hedlund Sept. 5, 2018

Sept. 5, 2018

Dear All, Please see below the action items and notes captured by staff from the RPM PDP Working Group call held on 05 September 2018 (12:00-14:00 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the recording. The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-09-05+Review+of+all+R…. See also the attached referenced documents. Best Regards, Julie Julie Hedlund, Policy Director == ACTION ITEMS: Page 6, First Bullet: ACTION ITEM 1: Change “WHOIS” to “WHOIS/RDDS” and “Providers should modify their operational rules in terms of automatically populating the Complaint Form using WHOIS data [using WHOIS/RDDS data consistent with applicant ICANN Consensus Policies]” ACTION ITEM 2: Ask the Providers Sub Team to rework the language. Page 6, Second Bullet: ACTION ITEM: Ask the Providers Sub Team to clarify the notion of developing rules. Page 10: ACTION ITEM: Check that the reference to 4.2 is the intended reference. Pages 27-28: ACTION ITEM 1: Review the language in the recommendations to capture the compliance concept while leaving the implementation details open, but seek community feedback. ACTION ITEM 2: Staff to inquire and then inform the WG which ICANN body is responsible for enforcing URS Provider MOUs -- GDD Compliance, ICANN Legal, or both? NOTES: 1. Review Agenda/Statements of Interest Updates -- Maxim Alzoba: Selected as GNSO Council representative from the Registry Stakeholder Group to be seated at ICANN63. -- Kathy Kleiman: Upcoming update -- starting at Princeton as a visiting scholar. -- Brian Beckham: Updated that he has been an observer to the IGO Curative WG and that he is a Co-Chair of the RPM PDP Working Group. 2. Reminder Concerning the Procedures for URS Policy and Operational Recommendations and Revised Proposal Submission Deadline of COB on September 6th (see attached document) 3. Begin Discussion of URS Policy and Operational Recommendations (see attached Super Consolidated URS Topics Table): Operational Fixes Page 4 -- Proposal: Fully automate the list of cases with a centralized database/single repository of all cases provided in .XML format. The question of how a centralized database would be paid for and managed could be included in the Initial Report to seek feedback as there are different opinions on how to implement the recommendation. For example, this might be achieve via the inclusion of an EPP extension showing that there is a pending URS/UDRP proceeding, although this would require at least 180 days for implementation. -- Rule 3(g) “A URS Complaint may not be filed against a domain name that is part of an open and active URS or UDRP case” governing the overlapping of cases suggested that the implementation of this operational fix should be in the form of a suggestion, rather than a policy. It could become part of the Providers pre-action checklist. WG Agrees with the operational fix and on seeking feedback on ways to implement it. Page 6: First Bullet: -- Rationale for the operational fix: Post GDPR many complaints will be brought where the registrant is unknown. The Sub Team wanted to find a way to update the complaint to be able to indicate who the registrant is. ACTION ITEM 1: Change “WHOIS” to “WHOIS/RDDS” and “Providers should modify their operational rules in terms of automatically populating the Complaint Form using WHOIS data [using WHOIS/RDDS data consistent with applicant ICANN Consensus Policies]” ACTION ITEM 2: Ask the Providers Sub Team to rework the language. Second Bullet: -- Rationale for the operational fix: UDRP Rules, para 4(a) and 4(b) on the notion of a registry responding to a request. -- The public should have input on the development of any rules. Could change to "proposed rules that are approved by the GNSO". -- Note that the URS is currently not a Consensus Policy, so it is binding on registry operators via contract. Anything we would propose would require sufficient lead time and discussion. ACTION ITEM: Ask the Providers Sub Team to clarify the notion of developing rules. Page 10: WG agrees that ADNDRC should change its operations to come into compliance. There is a separate question of compliance generally and which topics fall into that general category. General suggestion: when the WG develops the text for the recommendations and proposals for the Initial Report, the text should be changed to phrase it without mentioning a particular provider. ACTION ITEM: Check that the reference to 4.2 is the intended reference. Page 11: -- There is a GDD portal through which ICANN contacts registries and registrars, but not sure we need to specify that at this point. There is no third party access currently. Best we could expect is that URS Providers could view the current list of contacts. WG agrees with the operational fix on the need for ICANN, Registries, Registrars, and Providers to have access to up-to-date contact information and for interaction. Page 16: -- Rationale for the operational fix: Envisioned that this would be a light recommendation to supplement existing policies, rather than creating a new policy. -- Possible questions for feedback in the Initial Report: Who would pay for this and does it also apply to examiners? Who would have responsibility for the overarching guidance repository? -- Educational materials should be made public. -- Note that this language was recently modified in the last iteration of the Super Consolidated document. -- Could be a more generalized suggestion, with this language being a possible implementation detail. -- Suggested including the text: "Any materials should be translated in the UN 6 languages." WG agrees with the operational fix on the need to develop educational materials, but wording could be rephrased to leave out specific implementation details, such as hiring Researchers/and or Academics. Page 17: -- Possible questions for feedback in the Initial Report: Who should have the responsibility to develop guidance and pay for the development? WG generally agrees with the operational fix that there should be guidance for practitioners and examiners; companion concept would be for a checklist; also in general for the public, including registrants and complainants. Page 27: -- Seems to be an umbrella theme of compliance. -- Could apply to URS and UDRP, but there doesn't seem to be a reason to hold up a recommendation for the URS. -- Is this a job for ICANN Compliance (which enforces Registry/Registrar contracts) or for ICANN Legal? The Providers MOUs are entered into by ICANN. So perhaps it should be just ICANN. -- There is a difference between monitoring and responding to complaints. Monitoring is a larger undertaking/responsibility. Typically ICANN Org does not continuously monitor these types of issues; a complaint is first filed. -- A Provider could be subject to an audit. -- The MOU contains a termination clause for Provider's failure to comply with terms of MOU or the URS Procedures or Rules. -- Question to staff: Is it already possible to register a complaint through ICANN's complaint portal? Answer: For the URS typically these are handled by ICANN Compliance. The complaint or question must first be addressed to the URS Providers directly. There also are forms where a Provider or a Complainant can file a complaint. See: https://www.icann.org/resources/pages/urs-2013-10-31-en. WG generally agrees with the operational fix, but may ask the WG to reword it with respect to either proactive or reactive monitoring by ICANN. Pages 27-28: -- Any thoughts on how this effort could be achieved? Registries and Registrars must comply with their contracts and there are already ways to enforce compliance. URS is a policy both Registrars and Registries have to follow, and it is enforceable (Registry has to lock in 24 hours), but there is an implication with an extension for a year. -- There is a gap throughout the recommendations: database, compliance monitoring, publication of educational guides. Consider as a WG whether there needs to be some kind of URS/UDRP Commissioner to provide oversight, or an Ombudsperson for URS/UDRP. Could also be a standing advisory committee; however, there is a big distinction between the advisory committees and other structures under the Bylaws. -- There is an effort in the GNSO to review all consensus policies. Also, for PDP WGs to include metrics. Some WGs are developing recommendations for when and how policies could be reviewed. The WG could consider these points. WG generally agrees with the operational fix and the concept of increased monitoring and/or compliance. The WG should seek community feedback on how to implement/activate. ACTION ITEM 1: Review the language in the recommendations to capture the compliance concept while leaving the implementation details open, but seek community feedback. ACTION ITEM 2: Staff to inquire and then inform the WG which ICANN body is responsible for enforcing URS Provider MOUs -- GDD Compliance, ICANN Legal, or both? Page 33: The WG has discussed already in detail and agrees with the operational fix. Page 39: -- The WG may want to reword the operational fix so that it is not specific to ADNDRC. -- there are individual proposals which suggest rewording of Rule 6(a) "Each Provider shall maintain and publish a publicly available list of Examiners and their qualifications". See: https://community.icann.org/display/RARPMRIAGPWG/URS+Proposals The WG agrees with the operational fix, pending discussion of related proposals.

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Re: [Gnso-rpm-providers] Redline Edits to Providers ST's URS Proposals - Review by COB Fri
by Ariel Liang Sept. 4, 2018

Sept. 4, 2018

Dear All, Following the discussions about Justine’s message, staff would like to seek Providers Sub Team’s confirmation of the two outstanding proposed suggestions. Unless there is objection, staff intend to include the following in the Super Consolidated URS Topics Table: 1. Suggested Operational Fix: ADNDRC should change its operational rules to comply with URS Procedure para 4.2, requiring that Notice of Complaint be transmitted by the Respondent, with translation in the predominant language of the Respondent, via email, fax, and postal mail – No Change 2. Suggested Action Item for the WG: WG should consider explicit standards for the sanction and removal of Examiners – Staff to add a note next to this item: “not finalized due to some support with opposition” We will wait for an hour or so (apologies to members in the time zones outside of America), and if no objection, we will include these wordings in the Super Consolidated URS Topics Table document by COB today for the circulation with the full WG. In the introductory note of the Super Consolidated Table, staff could include the caveat that not all Sub Team proposals are finalized due to continuing discussions of certain issues; Sub Team members are welcome to speak to them when the specific proposals are being discussed during the WG meetings. Best Regards, Mary, Julie, Ariel & Berry From: Ariel Liang <ariel.liang(a)icann.org> Date: Wednesday, August 29, 2018 at 1:51 PM To: "gnso-rpm-providers(a)icann.org" <gnso-rpm-providers(a)icann.org> Subject: Redline Edits to Providers ST's URS Proposals - Review by COB Fri Dear All, Per staff action item, we have updated the Super Consolidated URS Table with the suggested edits agreed to by the Sub Team, shown in redline. Please note: * Per ST’s direction, Staff inserted additional language in the proposed policy recommendations in section “L. Education & Training” (page 38-39) in light of the staff review of Providers’ online forms and Notice of Complaint (see staff review in the email attached). * Susan’s suggested operational fix with regard to compliance is inserted in section “F. Remedies 2./3.” (page 28) * Staff also slightly edited the language of “Provider ST’s Suggested Action Items for the WG” for consistency ACTION for SUB Team: Please review the latest redline language of all of Providers ST’s policy recommendations, operational fixes, and suggested action items for the WG by COB Friday, 31 August. If no objection or comment/input received, the redline language will be accepted by COB Friday, 31 August. Best Regards, Mary, Julie, Ariel & Berry From: Gnso-rpm-providers <gnso-rpm-providers-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Wednesday, August 29, 2018 at 9:41 AM To: "gnso-rpm-providers(a)icann.org" <gnso-rpm-providers(a)icann.org> Subject: [Gnso-rpm-providers] Actions & Notes: RPM Providers Sub Team 29 August 2018 Dear All, Please see below the action items and notes captured by staff from the Providers Sub Team call held on 29 August 2018 (12:00-13:30 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the recording. The recording, AC chat, and attendance records are posted on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-08-29+Sub+Team+for+UR…. See also the attached referenced documents. Best Regards, Julie Julie Hedlund, Policy Director == ACTION ITEMS: 1. Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. 2. Staff will update the Super Consolidated URS Table with the suggested edits agreed to by the Sub Team shown in redline. Note in the cover email that staff has inserted additional language in the Education and Training section at the direction of the Sub Team. Ask for responses by COB Friday and if no objections the redlined document will be accepted by COB Friday. NOTES: Operational Fixes: A. THE COMPLAINT 4. Administrative review A URS provider should check the websites of other URS and UDRP providers to ensure that a disputed domain name is not already subject to an open/active URS/UDRP proceeding. -- I think registrant is in the best position, but I'm assuming it's not difficult for the providers to check? -- Accept the suggested revised language. 6. Amending the Complaint in light of GDPR/Temp Spec -- page 5/6 Providers should modify their operational rules in terms of automatically populating the Complaint Form using WHOIS data. -and- GDD, [Providers, and Registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding registrant data that is unavailable in publicly accessible WHOIS [rules for the timely response by Registries to requests for non-public information from Providers] -- Not what sure we are suggesting -- what do we mean by "develop a uniform system for interaction" -- do we mean a system for timely response from the Providers? -- Accept the suggested revised language with strikeouts and additional text in brackets. B. NOTICE 1. Receipt by Registrant - Notice (feedback from Complainant & Respondent) ADNDRC should change its operational rules to comply with URS Procedure 4.2, requiring that notice of the Complaint be transmitted [with translation] by the registrant via email, fax, and postal mail. -- Accept the suggested revised language. 2. Effect on Registry Operator - Notice requirements for Registry Operators ICANN’s email addresses for Registry contacts (reached by Providers) should be kept up to date -and- GDD, [Providers, and registries] should [jointly] develop a uniform system for interaction between the Providers and the Registries regarding Registry notice requirements -- What does "(reached by Providers)" mean? Strike the parenthetical and change to "should be kept up to date for use by Providers". -- Accept the suggested revised language with additional text in brackets. F. REMEDIES 3. Review of Implementation There should be efforts undertaken to better inform and enhance the understanding by Registry Operators and Registrars of their role in the URS process -- Accept the suggested revised language ACTION ITEM: Susan Payne will suggest language for an overarching recommendation concerning the need for ICANN Compliance proactive monitoring. J. LANGUAGE ISSUES 1. Language issues, including current requirements for complaint, notice of complaint, response, determination ICANN should enforce the URS Rules 9 and URS Procedure 4.2 with respect to Providers communicating with the Registrant in the predominant language of the Registrant. In particular, as the WG has found that ADNDRC is not in compliance with URS Procedure 4.2 and URS Rules 9, ICANN should request ADNDRC to change their operational rules and to translate the Notice of Complaint “into the predominant language used in the Registrant’s country or territory”. -- Accept the suggested revised language. M. URS PROVIDERS 1. Evaluation of URS providers and their respective processes (including training of panelists) Provider compliance with URS Rule 6(a) should be enforced. ADNDRC, in particular, should be required to list the backgrounds of all of their Examiners so that Complainants and Respondents can check for conflicts of interest. -- Accept the suggested revised language. Policy Proposals: A. THE COMPLAINT 6. Amending the Complaint in light of GDPR/Temp Spec URS Rule 3(b) should be amended in light of GDPR and the permissible filing of a “Doe Complaint”. -and- URS Procedure para 3.3 should be amended to enable modification of the Complaint within 2-3 days from disclosure of the full registration data by the URS Provider. -and- Outreach and education efforts should be undertaken via expert intermediaries to increase awareness and understanding of the common law concept of “Doe Complaint” in civil law jurisdictions, especially the EU. -- Accept the suggested revised language. -- Re: "WG to communicate with the EPDP Team about this issue: European civil law systems do not recognize the common law concept of "Doe Complaint", and the concept is not well understood in Europe" This could be addressed in an informal note. B. NOTICE 1. Receipt by Registrant -Notice (feedback from Complainant & Respondent) For “Doe Complaints’, Providers should [first] send notice to respondents [via the online registrant contact form and then by the required methods] as soon as relevant WHOIS data is forwarded by the registry. -- Accept the suggested revised language with additional text in brackets. E. DEFENSES 1. Scope of Defenses 2. Unreasonable delay in filing a complaint (i.e. laches) All Providers should provide similar types and forms of guidance to their examiners. -and- Examiners should document their rationale in all issued Determinations; in particular, when an Examiner finds that a registrant has registered and used a domain in bad faith supporting facts should be cited. -- Accept the suggested revised language. F. REMEDIES 2. Duration of Suspension Period 3. Review of Implementation URS Technical Requirements 3 and Registry Requirement 10 should be amended, [and compliance efforts should be directed,] to address problems with the implementation of the relief awarded following a URS decision; the implementation of a settlement (generally a domain transfer at the registrar level); and implementation of Complainant requests to extend a suspension. -- Do we need to mention ICANN Compliance role at all? Reword accordingly. -- Accept the suggested revised language. K. ABUSE OF PROCESS 1. Misuse of the process, including by trademark owners, registrants and “repeat offenders” Penalties for the abuse of the process by the Respondent should be added to the URS Rules; this proposal should be published to solicit public comment on what type of procedural abuse should be sanctioned, and in what manner. -- Don't think that anything discussed in the Providers Sub team to support or oppose this notion. We could seek public comment on it. -- Our "position" could be that this examination be for both Complainant and Respondent for fairness. But okay to action item to WG rather than as a recommendation. -- Create a new section 3: Suggested Action Items: The WG should consider whether to include the following question in the Initial Report for the purpose of soliciting public comment: “Are penalties for abuse of the process by the Complianant or Respondent sufficient, or if not, or should they be expanded, and how?" -- Accept the suggested approach. Re: "WG to consider whether, in light of FORUM and MFSD feedback on use of WHOIS to help determine Respondent language, policy recommendations should be developed to handle language and related GDPR concerns." -- Not sure why this should be a concern since the information about the country should be available. -- Agree GDPR should not be a concern insofar as country of Registrant is concerned. -- Change from a recommendation to an action. L. EDUCATION & TRAINING 1. Responsibility for education and training of complainants, registrants, registry operators and registrars ICANN [should] develop easy-to-understand, multilingual, and linkable guidance (e.g. basic FAQs) for reference and informational purposes of both URS parties (Complainants and Respondents) -and- URS Providers should develop additional clear and concise reference and informational materials specific to their service, practice, and website for the use and benefit of both URS parties. -- Accept the suggested revised language. M. URS PROVIDERS 1. Evaluation of URS providers and their respective processes (including training of panelists) Explicit standards for [for the sanction and removal of Examiners should be considered” removal of Examiners based upon particular background and factors, such as continued representation of serial cybersquatters, or representation of parties found to have engaged in attempted reverse domain name hijacking, should be developed. -- I don't think we identified that there was a problem. -- Reword "Explicit standards for the sanction and removal of Examiners should be considered." Put into Section 3, Suggested Action Items. -- Accept the suggested revised language with strikeouts and additional text in brackets.

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