May 2018 - GNSO-RPM-WG - lists.icann.org

webex chat
by McAuley, David May 2, 2018

May 2, 2018

I have been trying to add comment in chat but it is hung up in webex - will come back to it next week David David McAuley Sr International Policy & Business Development Manager Verisign Inc. 703-948-4154

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Draft Letter on UDRP & URS Utilization of WHOIS-Derived Registrant Data (was Response from the Co-Chairs RE: Proposal to Shift URS review to Phase II)
by Corwin, Philip May 2, 2018

May 2, 2018

WG members: Following up on the co-chairs email of April 6th, in which we stated-- In regard to the ability of URS and UDRP providers to continue to have access to the data elements necessary to fulfill their dispute resolution provider (DRP) roles, it is our intent to prepare a draft letter to ICANN's CEO noting that such continued access for DRPs is essential to maintaining these non-judicial alternatives for addressing trademark infringement in the DNS, and requesting that ICANN raise this important matter in its continuing discussions with EU Data Protection Authorities. We will work with staff to prepare this draft letter and then share it with WG members for review and comment, after which we will coordinate with Council Leadership and the WG Liaison regarding transmission of a final text to ICANN management. - Kathy and I have now prepared a draft letter to the GNSO Council, for transmission onward to ICANN management and other parties, for your review. It addresses the subject of the relationship of UDRP and URS administration based upon registrant data obtained from WHOIS records. In preparing this letter we relied extensively on the attached listing of UDRP Policy and Rules and URS Rules and Procedure that mention or are related to registrant data and WHOIS. Please review this attached letter at your earliest opportunity and post any suggested revisions or additions to the WG email list. As initiation of GDPR enforcement is now less than one month away time is of the essence in transmitting this information. Thank you and best regards, Philip & Kathy Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: Corwin, Philip Sent: Friday, April 06, 2018 11:03 AM To: 'john.mcelwaine(a)nelsonmullins.com' <john.mcelwaine(a)nelsonmullins.com>; 'gnso-rpm-wg(a)icann.org' <gnso-rpm-wg(a)icann.org> Subject: Response from the Co-Chairs RE: Proposal to Shift URS review to Phase II Dear John: Thank you for your submission regarding a variety of proposed changes to this Working Group's Charter. Our understanding from discussions with staff is that, while there is no set requirement for the level of support within a WG required to request that GNSO Council consider a Charter revision, such revisions are relatively rare and have in the past been supported by a substantial majority of WG members in the absence of significant opposition prior to transmission to Council for its consideration. We therefore strongly encourage all WG members to carefully review your proposal and, regardless of whether one supports or opposes it, to provide some feedback to the full WG email list so that we can begin to gauge overall support. Such email discussion can be preliminary to a full WG oral discussion on a call sometime in late April or early May, if there are indications of substantial support within the WG and a desire to engage in further discussion. The full WG will resume its regular Wednesday calls by mid-April (we anticipate April 18), after the URS Documents, Practitioners and Providers sub-teams have completed their current work. We also note that your proposal raises multiple issues, including: * Amendment of the WG Charter to move the URS review and recommendations to Phase II * Amendment of the WG Charter to define issues that must, may, and may not be addressed * Adjustment of the WG Charter to provide additional guidance on the scope of URS and UDRP Review * Adjustment of the WG leadership structure for Phase II * Potential pause in the start of Phase II keyed to GDPR impact understanding These are all major issues and we encourage WG members to comment on all of them. Finally, regardless of whether there is substantial support within the WG for any of the elements of your proposal, we agree that the impending enforcement of GDPR raises substantial WHOIS data access issues for trademark owners and for URS and UDRP dispute resolution providers. The issues for trademark owners are currently being discussed within the full ICANN community regarding interim and final compliance models, the latter involving accreditation and tiered data access. In regard to the ability of URS and UDRP providers to continue to have access to the data elements necessary to fulfill their dispute resolution provider (DRP) roles, it is our intent to prepare a draft letter to ICANN's CEO noting that such continued access for DRPs is essential to maintaining these non-judicial alternatives for addressing trademark infringement in the DNS, and requesting that ICANN raise this important matter in its continuing discussions with EU Data Protection Authorities. We will work with staff to prepare this draft letter and then share it with WG members for review and comment, after which we will coordinate with Council Leadership and the WG Liaison regarding transmission of a final text to ICANN management. Best regards, Philip & Kathy Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of John McElwaine Sent: Thursday, April 05, 2018 9:55 PM To: gnso-rpm-wg <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: [EXTERNAL] [gnso-rpm-wg] Proposal to Shift URS review to Phase II Dear RPM Working Group: In our meeting in San Juan, Puerto Rico, I raised the issue of moving the work set forth in this Working Group's charter relating to the URS to Phase II. The Chairs asked that I put something in writing detailing the specific recommendation and reasoning, which I present below and have also attached hereto in a Word document for your review and consideration. Kind regards, John Proposal to Shift URS from Phase I to Phase II: 1. On 15 December 2011, the GNSO Council requested that eighteen (18) months after the launch of the New gTLD Program ICANN staff prepare and publish an Issue Report on the state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to the UDRP and URS. The Council subsequently agreed to extend the timeline for a report by a further six (6) months. 2. On 9 October 2015, a Preliminary Issues Report was published discussing the scope of this potential PDP and outlining three possible options for moving forward. The third option ultimately was elected at that time: The "third option would be to conduct a policy review of all the RPMs in two phases, with the initial phase being a review only of the RPMs developed for the New gTLD Program. . . . The second, subsequent phase of work would be a review of the UDRP, based on the concerns specific to its scope that were raised in the 2011 GNSO Issue Report and any additional relevant topics derived from the first phase of work concerning the RPMs developed for the New gTLD Program." 3. On 15 March 2016, the two phase approach was approved in the Charter for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group ("RPM Working Group"). Phase One was to focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. 4. The Objective & Goals in the PDP's Charter were to examine (i) the RPMs effectiveness, (ii) whether the RPMs collectively fulfil their purposes, and (iii) whether additional policy specific recommendations are needed, including to clarify and unify the policy goals. RPM Working Group Charter, at p. 3. The Objectives & Goals in the PDP's Charter were broadly defined: "In addition to an assessment of the effectiveness of each RPM, the PDP Working Group is expected to consider, at the appropriate stage of its work, the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals. If such additional policy recommendations are needed, the Working Group is expected to develop recommendations to address the specific issues identified. The Working Group is also directed to bear in mind that a fundamental underlying intention of conducting a review of all RPMs in all gTLDs is to create a framework for consistent and uniform reviews of these mechanisms in the future." 5. However, the RPM Working Group Charter also contains a lengthy attachment entitled "LIST OF POTENTIAL ISSUES FOR CONSIDERATION IN THIS PDP" This "list was derived from various community suggestions in different forums, they are not listed in any particular order of importance nor has staff attempted to analyze the merits, relevance or significance of each issue". This list contains topics that are out of scope when compared with the Objectives and Goals, including: 1. Are generic dictionary words being adequately protected so that they are available for all to use as allowed under their national laws and international treaties? E.g. sun, window 2. Should monetary damages be awarded? 3. Are last names and geographic places adequately protected so that they are available for all to use as allowed under their national laws, e.g, Smith, McDonald, Capitol Hill Cafe, Old Town Deli? 4. Should injunctive relief be available? 5. Now that Reverse Domain Name Hijacking is a regular finding of UDRP panels, indicating that domain name registrants are being abused by complaints brought against them in the UDRP process, what penalties and sanctions should be imposed on Complainants found to be reverse domain name hijackers? How can those penalties and sanctions be aligned so as to be fair, as compared to the loss of a domain name taken from a registrant found to be a "cybersquatter"? 6. Issues from this list and other new out of scope issues, complaints and modifications are causing the work of the RPM Working Group to slow and are polarizing the members; thus, harming the ability to achieve consensus in the Working Group. As recommend by the PDP breakout group and discussed by the Community in attendance at the Sunday gNSO Working Session in San Juan, it would be particularly useful if working group charters would: 1. Define clearly what success for the proposed working group "should look like". (K. Kleiman reporting on breakout session, Transcript ICANN61 San Juan GNSO Working Session Part 2 Sunday, 11 March 2018 at 10:30 AS ("Transcript") at p. 5). 2. Define topics or issues that must be addressed, may be addressed and may not be addressed. (Transcript at p. 4). 3. Have "more defined issues, [be] more bounded, more limited." (Transcript at p. 5). 4. Have a narrower scope and be broken up into separate projects. (Transcript at p. 5). 5. Having a charter drafting team that "that are experts, and that might mean a legal expert, but we should also have people that have experience, practical experience." (S. DelBianco reporting on breakout session, Transcript at p. 5). 7. The Trademark Clearinghouse, Sunrise and Trademark Claims Notices are RPMs relating to the registration process of domain names in the new gTLDs. The URS is more akin to the UDRP, and like the UDRP is a mandatory dispute resolution proceeding to recover a domain name that has been clearly registered in bad faith. Since the URS is intended to be complementary of the UDRP and will have similar issues it would be more efficient to address these RPMs in a more cohesive manner. 8. With respect to the URS and UDRP, The European Parliament, the Council of the European Union, and the European Commission have enacted a new data privacy regulation in 2016 entitled the General Data Protection Regulation (GDPR) that will likely adversely impact the ability of the URS and UDRP to function as these policies are currently implemented. The new regulation is scheduled to take effect on May 25, 2018. Among other ways, GDRP may adversely impact the URS and the UDRP by: 1. Procedure for UDRP/URS: 1. Possibility that Providers cannot serve the UDRP/URS Complaint if an email address cannot be obtained. 2. Possibility that the Language of the URS proceeding cannot be determined. 2. Procedure for URS: 1. Possibility that the URS provider cannot translate the notice of URS complaint into the predominant language used in the Registrant's country or territory. 2. Possibility that URS complainants cannot know the language of a possible response. 3. Possibility that URS complainants do not know whether the URS complaint was translated into the correct language(s) and that proceedings were administered correctly. 3. UDRP Element 2 / URS: 1. Cannot argue that the registrant is not commonly known by the Domain Name at issue. 2. Cannot determine if the registrant has been authorized by the Trademark holder. 3. Cannot determine if the registrant is an authorized reseller of the Trademark holder's product. 4. Cannot determine on what date the domain name was "registered" by the current domain name holder if it was transferred to this current domain name holder. (requires being able to see the WhoIs history). This could prevent baseless claims from being filed. 4. UDRP Element 3: 1. Cannot determine if registrant has engaged in a pattern of bad faith registrations. Rule 4(b)(ii). 2. Cannot determine if registrant has been found to engage other unlawful actions, such as malware, phishing or scams. 3. Cannot determine if the registrant is in a particular geographic region to be better assess the possibility of legitimate co-existence (thus possibly even foregoing the filing of a case, and response, in the first place). 4. Cannot determine if the registrant is technically a "competitor" that has registered the Domain Name for the purpose of disrupting the business of the Complainant. Rule 4(b)(iii). 9. Due to GDPR compliance issues, ICANN org is considering substantial changes to WhoIs, and has published an Interim Model for GDPR Compliance, e.g. "The CookBook" which proposes to significantly limit the public display of WhoIs data after May 25, 2018." see: https://www.icann.org/en/system/files/files/gdpr-compliance-interim-model-0…. Aggressive current timelines for tiered access to WhoIs data that might provide some fix for the above issues is December 2018. There is no question that GDPR will require policy consideration relating to the URS and UDRP that cannot be predicted and analyzed at this time. Recommendation: 1. The RPM Working Group finishes its already well-advanced work and issues an Initial Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices for public comment. 2. After comments have been analyzed for those elements, that the RPM Working Group finishes its work and issues its Final Report on the PDDRP, Trademark Clearinghouse, Sunrise, and Trademark Claims Notices. 3. The RPM Working Group issues a request through its Appointed Working Group Liaison to the GNSO Council to amend the RPM Working Group Charter as follows: 1. shift the work related to the URS to Phase II and, if necessary, pause starting Phase II until after the permanent impacts of GDPR on the URS and UDRP are known; 2. provide clear guidance to the WG on the issues that (i) must be addressed, (ii) may be addressed, and (iii) may not be addressed; 3. provide clear guidance on the scope of the review of the URS and UDRP. Although a separate issue from this proposal, it is also recommended that Phase II Working Group has one chairperson with appropriate neutrality and experience in PDP consensus building and parliamentary procedures. Assistance to the chair can be provided by utilizing vice-chairs and well-structured sub-teams. <http://www.nelsonmullins.com/img/ecard-logo.png> JOHN C. MCELWAINE PARTNER john.mcelwaine(a)nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com> LIBERTY CENTER | SUITE 600 151 MEETING STREET | CHARLESTON, SC 29401 T 843.534.4302 F 843.722.8700 101 CONSTITUTION AVENUE, NW | SUITE 900 WASHINGTON, D.C., 20001 T 202.689.2939 F 202.689.2862 NELSONMULLINS.COM<http://www.nelsonmullins.com> VCARD<http://www.nelsonmullins.com/people/john-mcelwaine/vcard> VIEW BIO<http://www.nelsonmullins.com/people/john-mcelwaine> Confidentiality Notice This message is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged, confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. 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Re: [gnso-rpm-wg] Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
by Mary Wong May 1, 2018

May 1, 2018

Hello everyone, To follow up on Julie’s note below with the meeting agenda for 2 May, you will find all the relevant documents for Agenda Item #3 (Report from the URS Documents Sub Team) on the wiki page for this call: https://community.icann.org/x/xg4FBQ. For clarity, please note that these are the same documents that had been circulated previously by the URS Documents Sub Team, but yet to be discussed by the full Working Group. Thanks and cheers Mary, Julie, Ariel & Berry From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Tuesday, May 1, 2018 at 10:15 To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Dear RPM PDP WG members, Per the WG Co-Chairs, here is the proposed agenda for the Working Group call Wednesday, 02 May 2018, scheduled for 1700 UTC. Times are proposed as estimates and may be adjusted. Proposed Agenda: 1. Roll call and updates to Statements of Interest (1 minute) 2. Final Status of Questions for Practitioners and Providers (9 minutes) 3. Report from the Documents Sub Team (20 minutes) 4. Discussion on URS Phase II proposal (59 minutes) See John McElwaine’s original email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002857.html and a Google Sheet with the proposal as tab one, and the responses as tab two at: https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWFGZb… 5. Notice of agenda for 09 May meeting (1 minute) Best regards, Mary, Julie, Ariel and Berry

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Non-URS activity which the RPM PDP WG could undertake now
by Susan Payne May 1, 2018

May 1, 2018

When John McElwaine originally raised his suggestion in Puerto Rico that the URS be moved into phase 2 of our work, together with the UDRP, there were some concerns expressed about what the working group would spend our time doing, if we are not considering the URS, whilst we await the results of the planned data gathering survey on the Sunrise and TM Claims. I commented during the meeting that I believe there is work that the WG can usefully do, and indeed with respect to the data gathering survey I believe there is a potentially significant amount of work that we must do, irrespective of what happens with the URS, if that survey is to be as effective as possible in eliciting useful data. This work with respect to the data survey will need to be done over the coming weeks and months, and so, in my view, might necessitate pausing deliberations on the URS in any event. I thought it might be helpful for the purposes of the discussion tomorrow to explain my thoughts on this in a little more detail: Further action required with respect to the Sunrise and Claims data survey Before the surveys are deployed – ie between now and approx June, depending on appointment of the provider 1. Working with the survey provider to review and approve proposed survey questions, answer any queries the provider has and give additional guidance as required. Although the Data Subteam worked diligently over many weeks to develop guidance and notes for any survey provider, the group has always been clear that its task was not to attempt itself to draft effective survey questionnaires – this would be outside the area of expertise of the Data Sub members, and is within the expertise of the survey provider – but rather to explain what it is that the WG would like to achieve, the type of information we are seeking and from whom, in order to enable the survey provider to develop effective questionnaires. There will be further work required, therefore, in liaising with the survey provider when appointed. This could be expected to include: · At a very minimum, it will be necessary to review and approve the draft questionnaires produced by the survey provider, aimed at the various different target groups. This final sign-off might be something which the WG as a whole should do, rather than delegating to the Data Sub. · The likelihood is that, prior to this, there will need to be substantial engagement with the survey provider as they develop and finalise the draft questionnaires. This is an essential part of the process. Past experiences, for example of those who worked on the INTA Impact Study, is that this process involves 3-6 months of survey design and beta testing. My understanding is that INTA’s design and testing period was compressed in order to meet established CCT-RT time lines. It is possible that this compression contributed to design flaws that deterred participants from completing the survey once they entered the testing environment. In order for our RPMs data gathering exercise to be effective, therefore it is important to take all reasonable measures to ensure that the survey is well designed and tested to ensure maximum results. 2. Working with the survey provider to help identify survey targets from the various groups. The Data Subteam discussed the identification of targets. Whilst the view of the group was that the survey provider would likely have ideas about the best ways to source appropriate survey targets, we also felt that input from the working group may assist with this. 3. Another task that would require WG input is how to socialize the survey and the data. A pre-survey communications plan will need to be developed in order to publicize the survey to potential participants encourage maximum participation. Consideration may also be given to a post survey communications plan depending on how ICANN and the community may wish to socialize the results beyond incorporating them into WG reports. After the surveys have been conducted 4. Reviewing initial draft report from the survey provider, identifying questions and/or areas lacking clarity, potentially identifying matters which need further work before finalisation of the report by the survey provider Other tasks which the WG could undertake now There are various tasks which could potentially be dealt with now, since they do not necessarily depend on the outcome of the data survey. These could include (non-exhaustive examples): 1. Preparing the section of our draft Report dealing with the PDDRP 2. Developing an enhanced Sunrise DRP to try to address gaming of the “THE” type discussed in the WG 3. Conclude discussions on the TMCH such that we have actual recommendations for our draft Report. For example, a strawpoll was conducted regarding the marks which have a device/design element. This was always expressed to be non-determinative, however having run through the results of the poll the WG discussion ended without reaching any formal conclusions and we moved on to the Sunrise and Claims. 4. Working on revising the Claims Notice language. I don’t believe there is any disagreement in the WG that the Claims language is complex and would benefit from a re-draft. I believe that a start could be made on this now. Looking forward to discussing John’s proposal tomorrow. regards Susan Payne Head of Legal Policy | Valideus Ltd E: susan.payne(a)valideus.com<mailto:susan.payne@valideus.com> D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175 From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Corwin, Philip via gnso-rpm-wg Sent: 01 May 2018 15:49 To: julie.hedlund(a)icann.org; gnso-rpm-wg(a)icann.org Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC WG members are strongly encouraged to review the text of John’s original email and the Google doc of comments, both links provided below, prior to the call. If we do not conclude discussion tomorrow there should be time on the May 9th call to do so; if there is a decision to send any communication to Council on this matter this is in advance of the document filing deadline for its May meeting. As Kathy and I observed in our joint email of April 6th, John’s “proposal raises multiple issues, including: · Amendment of the WG Charter to move the URS review and recommendations to Phase II · Amendment of the WG Charter to define issues that must, may, and may not be addressed · Adjustment of the WG Charter to provide additional guidance on the scope of URS and UDRP Review · Adjustment of the WG leadership structure for Phase II · Potential pause in the start of Phase II keyed to GDPR impact understanding These are all major issues and we encourage WG members to comment on all of them. “ Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Hedlund Sent: Tuesday, May 01, 2018 10:15 AM To: gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> Subject: [EXTERNAL] [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Dear RPM PDP WG members, Per the WG Co-Chairs, here is the proposed agenda for the Working Group call Wednesday, 02 May 2018, scheduled for 1700 UTC. Times are proposed as estimates and may be adjusted. Proposed Agenda: 1. Roll call and updates to Statements of Interest (1 minute) 2. Final Status of Questions for Practitioners and Providers (9 minutes) 3. Report from the Documents Sub Team (20 minutes) 4. Discussion on URS Phase II proposal (59 minutes) See John McElwaine’s original email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002857.html and a Google Sheet with the proposal as tab one, and the responses as tab two at: https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWFGZb… 5. Notice of agenda for 09 May meeting (1 minute) Best regards, Mary, Julie, Ariel and Berry

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