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Final Consolidated List of URS Provider Questions
by Ariel Liang May 5, 2018

May 5, 2018

Dear All, Staff are happy to report that the Final Consolidated List of Provider Questions have been sent to all three URS Providers on Friday, 4 May, meeting the set deadline. Please find the clean copy attached. After careful consideration of all input and feedback received during the meeting last week and on the mailing lists, the Providers Sub Team vetted and reached agreement on the final questions contained on the consolidated list. We greatly appreciate the time and hard work from the Providers Sub Team, and also thank you all for your very timely and thoughtful comments. Staff will follow up with the Providers and keep the WG updated with the progress. Thank you all, and have a great weekend! Best Regards, Mary, Julie, Ariel, and Berry

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Proposed agenda for RPM Working Group call on 09 May 2018 at 1200 UTC
by Julie Hedlund May 4, 2018

May 4, 2018

Dear RPM PDP WG members, Per the WG Co-Chairs, here is the proposed agenda for the Working Group call Wednesday, 09 May 2018, scheduled for 1700 UTC. Times are proposed as estimates and may be adjusted. Staff notes that the GDD Summit and RightsCon conflict with the WG meeting on the 16th, and the INTA meeting conflicts with the WG meeting the 23rd, so it will be very helpful if WG members could indicate their availability for those dates. Draft Agenda: Roll call and updates to Statements of Interest (1 minute) Co-Chair Nomination: Q&A with Brian Beckham Discussion Decision on Co-Chair Nomination (20-29 minutes total) Continued discussion of URS Phase II proposal (tentative-if necessary/30 minutes) Presentation of Research from Rebecca Tushnet (30 minutes) Status of meetings for 16 and 23 May (1 minute) Best regards, Mary, Julie, Ariel and Berry

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Letter to GNSO Council re: RPM-WHOIS Related URS & UDRP Provisions
by Julie Hedlund May 4, 2018

May 4, 2018

Dear Working Group members, Please see the message below from the RPM PDP Working Group Co-Chairs and the attached referenced documents. Best regards, Mary, Ariel, Berry, and Julie ------ Message from Kathy Kleiman and Phil Corwin -------- Dear WG Members: Attached you will find a final version of a letter to be sent to GNSO Council and select entities to be copied (RYSG; RrSG; ICANN; ECO; BC/IPC) regarding the importance of access to certain registrant data to the fair and efficient administration of the UDRP and URS. This final version is based upon Brian Beckham’s revision of the co-chairs’ original draft, and further revisions agreed to by the co-chairs and Brian. All three are now agreed on this final version. This draft will remain open to further comment by WG members through 1600 UTC on Monday, May 7th. After that time it will be locked down and sent out. Thanks you and best regards, Philip and 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

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REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
by Julie Hedlund May 3, 2018

May 3, 2018

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: Roll call and updates to Statements of Interest (1 minute) Final Status of Questions for Practitioners and Providers (9 minutes) Report from the Documents Sub Team (20 minutes) 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… Notice of agenda for 09 May meeting (1 minute) Best regards, Mary, Julie, Ariel and Berry

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Re: [gnso-rpm-wg] Practitioners Questions Resolution REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
by Jason Schaeffer May 3, 2018

May 3, 2018

All, Please be advised that we are taking this topic offline and back to our Practitioners' subgroup volunteers, with Paul joining us to find a pathway forward. We worked for many weeks to bring a suitable survey forward to the Sub Team and WG. I'm confident that we will be able to use same collaborative effort to improve upon the questions raised that does not raise such extreme objections. We will return to the WG shortly. Thanks, Jason From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Nahitchevansky, Georges Sent: Thursday, May 03, 2018 10:39 AM To: Paul Keating; Michael Karanicolas; Corwin, Philip via gnso-rpm-wg Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Paul: What you are doing is simply not productive or constructive. I stand by my objections to your questions as drafted and want to make it clear that it is rather untoward of you to try to inject questions after the fact - and well after many hours were spent by many people to obtain a consensus on a group of questions - and to then cast stones at folks for objecting to your questions. Perhaps this is a litigation strategy that you typically use, but this is not the way we should be proceeding. We obviously disagree on this point, so further missives on our positions are simply pointless. We should take this off line and spare the working group the barrage of emails. I suggest we proceed as Jason has suggested and set up a time with the practitioner subgroup to get this resolved so that a survey can be sent out to move things along. Just let Jason know some times that might work and I and others will let him know as well. Georges From: Paul Keating [mailto:Paul@law.es] Sent: Thursday, May 3, 2018 10:21 AM To: Nahitchevansky, Georges <ghn(a)kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>>; Michael Karanicolas <mkaranicolas(a)gmail.com<mailto:mkaranicolas@gmail.com>>; Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC You continue to respond by adding still further "objections". You never seem to be wiling to deal with the ones you have made and I have countered. I can only presume that you have consented on the old objections and are now focusing on those set out below. As to focus, the questions are directed entirely at the issue of impartiality. We have an obligation to investigate and the questions only seek to understand the extent to which panelists check for conflicts. Conflicts checks are SOP for any practicing attorney and are simple to conduct. It would take all of 2 seconds to respond "yes/no" and if yes simply write a short sentence on the nature of the process (which is not a trade secret). As for turning people off from responding, I cannot imagine it doing so given the simplicity of the questions. There are a limited number of practitioners who would be receiving these surveys and they are all identified in the relevant UDRP/URS decisions that are publicly available. Relying on the Providers does not investigate the extent to which impartiality and the absence of conflicts exist. That is like asking a judge if any of the attorneys had a conflict and the judge informing you "well I asked them and they said no"... I will not reply further to your emails since they just seem to be an attempt to obstruct rather than constructively engage to address the issue. Paul From: Georges Nahitchevansky <ghn(a)kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Thursday, May 3, 2018 at 3:04 PM To: Paul Keating <paul(a)law.es<mailto:paul@law.es>>, Michael Karanicolas <mkaranicolas(a)gmail.com<mailto:mkaranicolas@gmail.com>>, "Corwin, Philip via gnso-rpm-wg" <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: RE: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Paul: You obviously misunderstand the whole point that is being made. We have questions that are ready to go and you and couple of others suddenly pop up with last minute additions that have built in biases. The point that is being made is really quite simple. The issue is whether the URS panelists appointed are impartial. That is what the inquiry should be focused on. My comments are meant to show that anyone could come up with loaded questions - and I provided a couple of examples that you might be able to understand. As I said, these types of questions are not productive and will likely turn people off to the survey. So in my view these type of questions should be avoided and should not be included in the practitioner or provider surveys. Questions regarding impartiality and how providers assure such should be in the provider section - and has been discussed by folks already. rom: Paul Keating [mailto:Paul@law.es] Sent: Thursday, May 3, 2018 8:45 AM To: Nahitchevansky, Georges <ghn(a)kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>>; Michael Karanicolas <mkaranicolas(a)gmail.com<mailto:mkaranicolas@gmail.com>>; Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Your true colors are showing. You are simply repeating a mantra that is based upon subjectively flawed and illogical presumptions. I believe you have an ulterior motive of simply delaying things. If you have some suggested questions please present them. Otherwise I will simply ignore your comments. Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Georges Nahitchevansky <ghn(a)kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Thursday, May 3, 2018 at 4:23 AM To: Michael Karanicolas <mkaranicolas(a)gmail.com<mailto:mkaranicolas@gmail.com>>, "Corwin, Philip via gnso-rpm-wg" <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Yes it is incredible that some want to include loaded and biased questions that are full of assumptions. In that vein, should we ask practitioners if they have ever lied in the papers they submitted in a matter and what specific steps they take to make sure that what they say is truthful. How about a question to practitioners about whether they have ever orchestrated measures beyond an appeal to deprive a successful claimant from being able to secure a domain name won in a proceeding. The point is that there are many loaded questions full of assumptions that can be asked to create issues to further an agenda. a better way of approaching the issue of impartiality without throwing out questions that assume a wrong exists is to simply focus on the concept of impartiality per the Rules as opposed to crafting and revising questions that have underlying assumptions not grounded in the rules. What would have been great is if the folks that posit these 11th hour questions had bothered to join the subgroups who worked very hard to get a set of questions that would be answered. Sweeping in at the 11th hour with these loaded questions, and when there is limited opportunity to discuss, is not productive. If it was that important of an issue you would think that these folks would have joined the groups and raised these issues. They didn't so I really ask why the loaded questions at this point. From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>] On Behalf Of Michael Karanicolas Sent: Wednesday, May 2, 2018 4:57 PM To: Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Incredible. This looks like the exact same kabuki we just went through on the providers doc. Once again, it's the same tactic of trying to equate a basic and general question with a personal attack against individual panelists/examiners. Somehow, I doubt that the recipients of this survey will faint with outrage at the temerity of being asked about their conflict of interest procedures. The question does not presume that they are acting in an improper manner - it asks how they're acting. If they have proper conflict procedures in place, I can't believe they would be shy about saying as much. I also see the same arguments that the responses will be meaningless or frivolous (which is funny, considering how people are fighting tooth and nail to exclude the line of inquiry), and the same protests against imagined policy debates that might flow from the information. And, buried amidst the hyperbole, are a few substantive claims addressing the wording of these questions. So why don't we all save a bit of time and focus on how the questions can be improved to be better targeted and accurate? I've made a couple of suggested edits, based on Greg's objections. It would be great to try and build forward with actual, constructive suggestions on wording that people can live with. Or we can keep going in circles... Best, Michael On Wed, May 2, 2018 at 1:51 PM, Nahitchevansky, Georges <ghn(a)kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: Paul: Your questions are loaded questions that have a bias that panelists are not properly vetting conflicts. As a California attorney you know fully well that your questions go well beyond the norm. When was the last time you were asked to detail your conflict procedures -- apart from when there is an actual challenge by a party claiming a conflict of interest. By the same token as an attorney representing parties in URS and UDRP proceedings you must have done a conflict check. Should we be looking into what all parties do in regards to conflict checks. Attorneys are not asked because they are are covered by an ethical obligation and unless someone challenges on the ground of conflict it is presumed that they did a proper check. Similarly, Judges all over the world are presumed to have done a conflict check and to recuse themselves if a conflict exists. When is the last you asked a judge to explain what they did and what procedures they have in place before taking on a case. You presume they conducted a proper check and challenge if you believe a conflict of interest. The same should apply in the URS context. URS panelists should not be put into a separate category that goes beyond what attorneys and judges do. The panelists typicallly attest to the fact that they have no conflict. If someone feels otherwise, they can always challenge the panelist appointment. The bottom line is that this entire issue you are trying to inject here is part and parcel of some notion that panelists are not acting in an impartial manner ias required by the URS rules. The questions of such whether panelists are acting impartially should be directed to the providers, who can answer more appropriately on this issue and what they require of panelists. One other basic problem with your questions, is that many answers will be meaningless as they will simply be yes we have appropriate procedures in place. You may get a handful of more detailed responses, but then we will be arguing for months on end about whether procedures are sufficient or not etc. We are not here to rewrite the procedures firms take to run conflict checks. Again, the issue is about having impartial panelists and what steps are taken to make sure that is the case. As in my judge example above, if you were going to go down this path of inquiry you would ask a judicial commission to advise on what they do to have impartial judges. That is the more relevant and productive inquiry. So again I stress that these questions should be removed. Lastly, I am glad you agree that there should be ramifications for attorneys or others acting for parties for filing false statements, supporting parties that hide behind bogus contact information, or fail to disclose their own interests in a matter. Maybe we should ask practitioners if they feel their should be meaningful sanctions for such behavior and the type of sanctions. From:Paul@law.es<mailto:Paul@law.es> Sent: May 2, 2018 10:39 AM To:ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>; gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>; julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org> Cc:gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Sorry but I do not see what you see. The questions are neutral questions asking for a fact-based reply. They do not presume anything. This is clear from reading the qualifying questions at issue. Regarding some panelists not being attorneys, I have several responses. Primarily, given that the UDRP/URS is founded in legal principles, I question the use of those without legal training. Further, conflicts checking is not limited to attorneys. Regarding your suggestion that attorneys confirm who they are representing when domains use false WHOIS data or privacy, rest assured. There are plenty of rules and regulations that require an attorney to verify the identity of clients - the least of which are the regulations concerning money laundering. Regarding the fact-checking, I am fine with your suggestion - as long as it applies to both complainants and to respondents. Personally, I am troubled by the fact that representatives can even provide a certification when they themselves have no personal knowledge. I presume that allowing such a process in the UDRP/URS space grew out of the trademark practice (where providing such certifications to the registration authorities is a common practice). However, if you want to change it that is fine with me - as long as it applies to both sides. As to the proposal to limit inquiry to those clearly provided under the rules, that is not consistent with our marching orders. In fact if we took that approach to everything we would be left without much to investigate. To conclude, I would submit that it is really your comments that are the loaded ones and intended to prevent an inquiry into a legitimate issue. Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Georges Nahitchevansky <ghn(a)kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wednesday, May 2, 2018 at 2:28 PM To: Greg Shatan <gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>>, Julie Hedlund <julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org>> Cc: "gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Dear All: Below are the questions being referred to. I likewise object to these questions which have an underlying assumption that Panelists are somehow biased and don't screen conflicts properly. It also assumes that the panelists are all attorneys at law firms and the law firms do not have proper screening mechanisms for conflicts. Simply put, most of these questions are loaded questions that are meant to further a particular agenda. If we are going to go down the route of these type of loaded questions, should we also be asking about attorneys, for example, who represent parties that registered names with bogus contact information whether they conducted a thorough check so that they can certify that they truthfully identified the party they are representing and how they conducted that check (e.g., what mechanisms are in place and all steps taken). After all the ethical rules make clear that attorneys are bound by requirements that attorneys be truthful. In that vein, should we also ask whether the attorneys representing parties have been truthful and checked the facts that they are stating in their papers - and what steps they take to certify and insure this. I can think of several examples I personally know of where an attorney simply lied in the submissions. Should this now be an entire line of inquiry. Should we ask whether Rule 11 type sanctions be available in URS cases where an attorney representing a party is found to represent a party with fake contact information or has lied in the papers. I can think of many more loaded lines of inquiries if that what some want to do, but ultimately I don't think these are going to be productive in moving the ball forward. In light of the questions that were suggested on the provider side of things, I think the only issue to raise is whether Panelists are impartial per the requirements of the rules and what providers do to make sure that is the case - and nothing more, . These questions should not be here and should be deleted in their entirety 4. Do you serve as a URS panelist? A. Yes B. No 5. If yes, do you undertake a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent? A. Yes B. No If yes, please briefly describe the methods used to verify the absence of conflicts:___________________________________________________' If yes, do you retain records of your search? A. Yes B. No 6. Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist? A. Yes B. No If yes, please briefly explain the nature of such communications:_________________________ From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Greg Shatan Sent: Wednesday, May 2, 2018 1:05 AM To: Julie Hedlund <julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org>> Cc: gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC All, I have significant objections to the questions to Examiners that were tacked on to the end of the Practitioners questionnaire at the 11th hour. Apologies for not focusing on this before now. I don't believe these have really been properly reviewed or discussed. I believe these questions are inappropriate in a poll of practitioners, as these are questions directed to "panelists." (The proper term is Examiner....) It feels like a "bait and switch" tactic. If we are going to survey Examiners, let's survey Examiners -- not ambush practitioners. On that basis alone, we should eliminate these questions. I am also troubled by the questions themselves. Singling out these questions, out of all that we might ask Examiners, seems vaguely accusatory. The basis for these questions is questionable. I've reviewed the URS Procedures and Rules, and none of these questions comes out of a Procedure or Rule. The Examiners are supposed to declare conflicts of interest, but there is no instruction on how to implement that. As such, there is no requirement that an Examiner undertake any type of conflicts check much less something as specific as "a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent." Asking the question implies that this is an imperative when it is not. On top of that, this verbiage does not accurately describe a conflict check. What is a "potentially adverse conflict of interest"? Why is it only asking about adverse conflicts? I note that the Forum does have a Supplementary Rule that "A Examiner will be disqualified if circumstances exist that create a conflict of interest or cause the Examiner to be unfair and biased, including but not limited to ... The Examiner has served as an attorney to any party or the Examiner has been associated with an attorney who has represented a party during that association." This does not ask the Examiner to run a conflict check, but notably, the issue it raises is the exact opposite of the issue implied in these proposed questions -- the Forum is highlighting representing a party, not being adverse (much less "potentially adverse) to a party. Now, I'm not saying it's a bad idea for an Examiner to run a (properly defined) conflict check, but the very fact that we are debating Examiner actions and requirements in a practitioners poll should tell us we're in the wrong place. For that reason, I will not discuss the problems in the follow-up questions on conflict checks. The final question is even worse. ("Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist?') As far as I know, this is not prohibited behavior, especially not this broadly described. It seems designed to make people feel like they might have done something wrong. (If this is expressly prohibited by the Rules or Procedures, then perhaps we could fashion a question out of that Rule/Procedure if we were putting together a poll for Examiners.) Is it improper to "communicate" with your spouse about a URS case? With one of your law partners? With a fellow Examiner? Long story short, these questions should be deleted. Greg On Tue, May 1, 2018 at 10:15 AM, Julie Hedlund <julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org>> wrote: 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 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. 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Please contact us immediately by return e-mail or at 404 815 6500<tel:4048156500>, and destroy the original transmission and its attachments without reading or saving in any manner. ________________________________ ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

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Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
by Nahitchevansky, Georges May 3, 2018

May 3, 2018

Yes it is incredible that some want to include loaded and biased questions that are full of assumptions. In that vein, should we ask practitioners if they have ever lied in the papers they submitted in a matter and what specific steps they take to make sure that what they say is truthful. How about a question to practitioners about whether they have ever orchestrated measures beyond an appeal to deprive a successful claimant from being able to secure a domain name won in a proceeding. The point is that there are many loaded questions full of assumptions that can be asked to create issues to further an agenda. a better way of approaching the issue of impartiality without throwing out questions that assume a wrong exists is to simply focus on the concept of impartiality per the Rules as opposed to crafting and revising questions that have underlying assumptions not grounded in the rules. What would have been great is if the folks that posit these 11th hour questions had bothered to join the subgroups who worked very hard to get a set of questions that would be answered. Sweeping in at the 11th hour with these loaded questions, and when there is limited opportunity to discuss, is not productive. If it was that important of an issue you would think that these folks would have joined the groups and raised these issues. They didn't so I really ask why the loaded questions at this point. From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>] On Behalf Of Michael Karanicolas Sent: Wednesday, May 2, 2018 4:57 PM To: Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Incredible. This looks like the exact same kabuki we just went through on the providers doc. Once again, it's the same tactic of trying to equate a basic and general question with a personal attack against individual panelists/examiners. Somehow, I doubt that the recipients of this survey will faint with outrage at the temerity of being asked about their conflict of interest procedures. The question does not presume that they are acting in an improper manner - it asks how they're acting. If they have proper conflict procedures in place, I can't believe they would be shy about saying as much. I also see the same arguments that the responses will be meaningless or frivolous (which is funny, considering how people are fighting tooth and nail to exclude the line of inquiry), and the same protests against imagined policy debates that might flow from the information. And, buried amidst the hyperbole, are a few substantive claims addressing the wording of these questions. So why don't we all save a bit of time and focus on how the questions can be improved to be better targeted and accurate? I've made a couple of suggested edits, based on Greg's objections. It would be great to try and build forward with actual, constructive suggestions on wording that people can live with. Or we can keep going in circles... Best, Michael On Wed, May 2, 2018 at 1:51 PM, Nahitchevansky, Georges <ghn(a)kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: Paul: Your questions are loaded questions that have a bias that panelists are not properly vetting conflicts. As a California attorney you know fully well that your questions go well beyond the norm. When was the last time you were asked to detail your conflict procedures -- apart from when there is an actual challenge by a party claiming a conflict of interest. By the same token as an attorney representing parties in URS and UDRP proceedings you must have done a conflict check. Should we be looking into what all parties do in regards to conflict checks. Attorneys are not asked because they are are covered by an ethical obligation and unless someone challenges on the ground of conflict it is presumed that they did a proper check. Similarly, Judges all over the world are presumed to have done a conflict check and to recuse themselves if a conflict exists. When is the last you asked a judge to explain what they did and what procedures they have in place before taking on a case. You presume they conducted a proper check and challenge if you believe a conflict of interest. The same should apply in the URS context. URS panelists should not be put into a separate category that goes beyond what attorneys and judges do. The panelists typicallly attest to the fact that they have no conflict. If someone feels otherwise, they can always challenge the panelist appointment. The bottom line is that this entire issue you are trying to inject here is part and parcel of some notion that panelists are not acting in an impartial manner ias required by the URS rules. The questions of such whether panelists are acting impartially should be directed to the providers, who can answer more appropriately on this issue and what they require of panelists. One other basic problem with your questions, is that many answers will be meaningless as they will simply be yes we have appropriate procedures in place. You may get a handful of more detailed responses, but then we will be arguing for months on end about whether procedures are sufficient or not etc. We are not here to rewrite the procedures firms take to run conflict checks. Again, the issue is about having impartial panelists and what steps are taken to make sure that is the case. As in my judge example above, if you were going to go down this path of inquiry you would ask a judicial commission to advise on what they do to have impartial judges. That is the more relevant and productive inquiry. So again I stress that these questions should be removed. Lastly, I am glad you agree that there should be ramifications for attorneys or others acting for parties for filing false statements, supporting parties that hide behind bogus contact information, or fail to disclose their own interests in a matter. Maybe we should ask practitioners if they feel their should be meaningful sanctions for such behavior and the type of sanctions. From: Paul(a)law.es<mailto:Paul@law.es> Sent: May 2, 2018 10:39 AM To: ghn(a)kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>; gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>; julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org> Cc: gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Sorry but I do not see what you see. The questions are neutral questions asking for a fact-based reply. They do not presume anything. This is clear from reading the qualifying questions at issue. Regarding some panelists not being attorneys, I have several responses. Primarily, given that the UDRP/URS is founded in legal principles, I question the use of those without legal training. Further, conflicts checking is not limited to attorneys. Regarding your suggestion that attorneys confirm who they are representing when domains use false WHOIS data or privacy, rest assured. There are plenty of rules and regulations that require an attorney to verify the identity of clients – the least of which are the regulations concerning money laundering. Regarding the fact-checking, I am fine with your suggestion - as long as it applies to both complainants and to respondents. Personally, I am troubled by the fact that representatives can even provide a certification when they themselves have no personal knowledge. I presume that allowing such a process in the UDRP/URS space grew out of the trademark practice (where providing such certifications to the registration authorities is a common practice). However, if you want to change it that is fine with me – as long as it applies to both sides. As to the proposal to limit inquiry to those clearly provided under the rules, that is not consistent with our marching orders. In fact if we took that approach to everything we would be left without much to investigate. To conclude, I would submit that it is really your comments that are the loaded ones and intended to prevent an inquiry into a legitimate issue. Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Georges Nahitchevansky <ghn(a)kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wednesday, May 2, 2018 at 2:28 PM To: Greg Shatan <gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>>, Julie Hedlund <julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org>> Cc: "gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Dear All: Below are the questions being referred to. I likewise object to these questions which have an underlying assumption that Panelists are somehow biased and don’t screen conflicts properly. It also assumes that the panelists are all attorneys at law firms and the law firms do not have proper screening mechanisms for conflicts. Simply put, most of these questions are loaded questions that are meant to further a particular agenda. If we are going to go down the route of these type of loaded questions, should we also be asking about attorneys, for example, who represent parties that registered names with bogus contact information whether they conducted a thorough check so that they can certify that they truthfully identified the party they are representing and how they conducted that check (e.g., what mechanisms are in place and all steps taken). After all the ethical rules make clear that attorneys are bound by requirements that attorneys be truthful. In that vein, should we also ask whether the attorneys representing parties have been truthful and checked the facts that they are stating in their papers – and what steps they take to certify and insure this. I can think of several examples I personally know of where an attorney simply lied in the submissions. Should this now be an entire line of inquiry. Should we ask whether Rule 11 type sanctions be available in URS cases where an attorney representing a party is found to represent a party with fake contact information or has lied in the papers. I can think of many more loaded lines of inquiries if that what some want to do, but ultimately I don’t think these are going to be productive in moving the ball forward. In light of the questions that were suggested on the provider side of things, I think the only issue to raise is whether Panelists are impartial per the requirements of the rules and what providers do to make sure that is the case – and nothing more, . These questions should not be here and should be deleted in their entirety 4. Do you serve as a URS panelist? A. Yes B. No 5. If yes, do you undertake a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent? A. Yes B. No If yes, please briefly describe the methods used to verify the absence of conflicts:___________________________________________________’ If yes, do you retain records of your search? A. Yes B. No 6. Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist? A. Yes B. No If yes, please briefly explain the nature of such communications:_________________________ From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Greg Shatan Sent: Wednesday, May 2, 2018 1:05 AM To: Julie Hedlund <julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org>> Cc: gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC All, I have significant objections to the questions to Examiners that were tacked on to the end of the Practitioners questionnaire at the 11th hour. Apologies for not focusing on this before now. I don't believe these have really been properly reviewed or discussed. I believe these questions are inappropriate in a poll of practitioners, as these are questions directed to "panelists." (The proper term is Examiner....) It feels like a "bait and switch" tactic. If we are going to survey Examiners, let's survey Examiners -- not ambush practitioners. On that basis alone, we should eliminate these questions. I am also troubled by the questions themselves. Singling out these questions, out of all that we might ask Examiners, seems vaguely accusatory. The basis for these questions is questionable. I've reviewed the URS Procedures and Rules, and none of these questions comes out of a Procedure or Rule. The Examiners are supposed to declare conflicts of interest, but there is no instruction on how to implement that. As such, there is no requirement that an Examiner undertake any type of conflicts check much less something as specific as "a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent." Asking the question implies that this is an imperative when it is not. On top of that, this verbiage does not accurately describe a conflict check. What is a "potentially adverse conflict of interest"? Why is it only asking about adverse conflicts? I note that the Forum does have a Supplementary Rule that "A Examiner will be disqualified if circumstances exist that create a conflict of interest or cause the Examiner to be unfair and biased, including but not limited to ... The Examiner has served as an attorney to any party or the Examiner has been associated with an attorney who has represented a party during that association." This does not ask the Examiner to run a conflict check, but notably, the issue it raises is the exact opposite of the issue implied in these proposed questions -- the Forum is highlighting representing a party, not being adverse (much less "potentially adverse) to a party. Now, I'm not saying it's a bad idea for an Examiner to run a (properly defined) conflict check, but the very fact that we are debating Examiner actions and requirements in a practitioners poll should tell us we're in the wrong place. For that reason, I will not discuss the problems in the follow-up questions on conflict checks. The final question is even worse. ("Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist?') As far as I know, this is not prohibited behavior, especially not this broadly described. It seems designed to make people feel like they might have done something wrong. (If this is expressly prohibited by the Rules or Procedures, then perhaps we could fashion a question out of that Rule/Procedure if we were putting together a poll for Examiners.) Is it improper to "communicate" with your spouse about a URS case? With one of your law partners? With a fellow Examiner? Long story short, these questions should be deleted. Greg On Tue, May 1, 2018 at 10:15 AM, Julie Hedlund <julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org>> wrote: 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 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500<tel:4048156500>, and destroy the original transmission and its attachments without reading or saving in any manner. ________________________________ ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

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Recording, Attendance, & WebEx Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Wednesday, 02 May 2018
by Julie Bisland May 2, 2018

May 2, 2018

Dear all, Please find the attendance and Webex Chat attached to this email, and the MP3 recording below for the Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call held Wednesday, 02 May 2018 at 17:00 UTC. Attendance and recording of the call is posted on agenda wiki page: https://community.icann.org/x/xg4FBQ MP3: https://audio.icann.org/gnso/gnso-rpm-review-02may18-en.mp3 The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/ Main wiki page for the working group: https://community.icann.org/x/wCWAAw Kind Regards, Julie

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Actions & Notes: RPM PDP WG 02 May 2018
by Julie Hedlund May 2, 2018

May 2, 2018

Dear All, Please see below the action items and brief notes captured by staff from the Working Group call held on 02 May 2018 (1700 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 transcript or recording. The recording, transcript, Adobe Connect chat, and attendance records are posted on the wiki. The referenced document is attached. Best Regards, Julie Julie Hedlund, Policy Director Action Items: WG members are encouraged to review the transcript from the meeting on 02 May, particularly if they could not attend the call. Staff will determine what if any flexibility the charter allows for how URS is addressed, without requiring a change to the charter. Notes: 1. Updates to Statements of Interest (1 minute): None. 2. Final Status of Questions for Practitioners and Providers (9 minutes) -- Providers: Will be done tomorrow. The aim is to send them out to all three providers by Friday at the latest. -- Practitioners: Questions provided very late in the process and there is a spirited discussion on the list. Let the Practitioners Sub Team work this out. Need to get these out this week. Will take the providers 30-45 days to answer, but some may take longer. 3. Report from the Documents Sub Team (20 minutes) -- There were two questions that we had discussed during the previous two WG calls that would be useful to refer to the providers Sub Team. -- We looked at an excel sheet on the 14 appeal decisions. There was one or two cases where there were questions about the web sites and we referred that to the Providers Sub Team. -- Overall the URS was functioning as intended. Wanted to ask the WG whether further work is needed. There are the 250 cases as well as Rebecca’s Tushnet’s research. Two of the recommendations from the Sub Team to the full WG: 1) Useful to recommend that providers provide to examiners some kind of a guide that captured a bare minimum of elements in a decision. Sometimes it was difficult to understand how the examiner made a determination. 2) there were different communications that were sent by providers whether going to a registry or a registrar – whether these should be coordinated more holistically, or largely the same except for some custom elements. -- Don’t think we made qualitative conclusions about the functioning of the process. -- Distribution of the findings: yoyo respondent – seems to get angry and responses become shorter over time. -- 250+ cases where the respondent filed a response but there were no appeals – question: whether based on the exercise undertaken so far whether the WG thinks it would be useful to go into those cases. -- The 58 cases where the Respondent prevailed, is to understand on what basis they prevailed (per what’s outlined in the rules or procedures or by some other basis). -- Rebecca should present on her research before the document Sub Team goes further. -- Could look at a random sampling of other subsets of cases. Even that would take a significant amount of time. For consideration: Determine whether there is further case review. 3 buckets – 14 cases, 58 cases, 250 cases – to the extent that there is going to be further case review, from the staff perspective you would need a small group to share the work and use the same template. For the 58 and the 250 – the Sub Team indicated they would be willing to take that on with additional volunteers. It does take time. 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… -- GNSO Council discussion in San Juan on improving the PDP really resonated. -- Suggestions on what might make for a better way to make policy. Discussion: -- Moving the URS to Phase II: In favor as Co-Chair on the New gTLD Subsequent Procedures PDP WG – Things like the TMCH, Sunrise, Claims can have a significant impact on an applicant’s business model. Implementing URS or UDRP there is very little impact on the Registry. -- Seems that as a new RPM the URS should be treated up front as it was designed in the charter. GDPR is going to have an impact May 25 and it seems good to come to grips with it as soon as we can. -- Thought the GNSO Council discussion in San Juan focused on future PDPs, not current ones. Cannot say that this idea (moving URS to Phase II) came from the GNSO Council discussion. -- Bifurcate it: 1) Just consider whether this RPM should be put into Phase II. 2) Don’t see any reason for keeping URS in this phase unless it affects the Applicant Guidebook or the decisions to apply for TLDs. -- Would need to have all constituencies to agree to request the charter change. -- The Subsequent Procedures working group delegated their work to this group to address RPM issues for the next round. I believe it is our obligation to deliver that input in a timely manner. Now that our work has taken longer than anticipated, we should act in a responsible way and arrange our priorities to meet our obligations. -- Some think the URS and UDRP should be considered separately, some together. I think this is irrelevant to the decision to postpone the URS discussion to Phase 2. Even if moved to Phase 2, the topics could still be considered separately. -- There is no mechanism or procedure where the WG has to have a consensus on changes to the charter. -- GNSO Council discussion in San Juan doesn’t suggest current PDPs and charters can’t be improved. -- URS is moving along very well, so not sure why we would delay. It also has an impact on the Applicant Guidebook. -- There are synergies between the URS and UDRP. Run the risk of burnout if we take too long. Address issue concurrently instead of consecutively. Reviewing concurringly would be more efficient. -- Procedurally there is not requirement or prescribed threshold for recommending a charter change to the Council, but this is not something commonly done and in the two instances when it was done there was no substantial opposition. Also, if the recommendation is to move the URS to Phase II that will require a charter change. But, within Phase I the WG could choose to issue different Initial Reports – so you could make changes in Phase I without needing charter changes. The discussion as to whether to do this in Phases, this was based on community input at the time. In 2011 there had been an Initial Report on UDRP, but we decided not to continue the review since the 2012 round was just starting. Also around that time there was discussion as whether RPM should be done as part of the Subsequent Procedures PDP or as a separate PDP. -- On the question of charter change because of a specificity in the language a move to Phase II would require a change; when the transcript comes out anyone who is not on this call should review it before next week’s call. -- There is a lot of work going on now and surveys going out for URS so we would hate to see that lost or delayed. 5. Notice of agenda for 09 May meeting at 1700 UTC.

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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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