Hi folks, Reviewing some of the proposals that were submitted by last night's deadline, I think that they'd encounter some very serious problems in terms of implementation, because of lack of WHOIS verification and vulnerabilities associated with identity theft. For example, there were multiple "loser pays" submissions (I too am on the record as being strongly in favour of "loser pays" as a concept, but I qualified my support, noting (without going into too much detail): https://mm.icann.org/pipermail/gnso-rpm-wg/2018-August/003226.html that (in point #11) the system had to be carefully constructed, with systems of checks and balances in place. While I made submissions on other topics, folks will note I didn't submit one on "loser pays" at this time, because I realized that in order to properly implement a loser pays system one would need to solve a whole series of other problems first. And to solve those other problems first might become a monumental task (I'd be up to that monumental task, but not sure the rest of the PDP members would be willing to do it! If the rest of the group does want to solve them, I'd love to rise to the challenge too). So, here's just one of the major problems that would need to be solved before implementing "loser pays" or penalties --- lack of WHOIS verification which relates to identity theft. Registrars generally don't have any "Know Your Client" requirements and there is no real verification of the true identity of the person/entity that purports to be the registrant. There might be verification that the email address and/or the telephone number are verified. But, all the rest of the fields in the WHOIS can easily be faked, or used to impersonate others to commit identity theft. This is not some theoretical issue. I know first hand, as someone using a Chinese registrar copied my company's WHOIS for a malware domain, see the historical WHOIS at: https://research.domaintools.com/research/whois-history/search/?q=antivirusa... (I had a Google Alert triggered, and that's how I noticed it; the attacker changed the phone number by 1 digit from my real phone number, but copied my name, company name, fax, address, and used a gkirikos@ address (obviously not matching my real email address). [I complained to the registrar, and also using an ICANN WHOIS complaint] [NB: with GDPR and redacted WHOIS out there, it could be happening *now* -- how would I know??] This has even happened within UDRP cases, where there has been identity theft, see: http://www.udrpsearch.com/search?query=identity%20theft&search=text&results=... for various matches. e.g.: http://www.adrforum.com/domaindecisions/1774660.htm http://www.wipo.int/amc/en/domains/search/text.jsp?case=D2017-1843 So, let's consider various scenarios. If there's a "loser pays" system, new vulnerabilities would be created if a system is not carefully constructed. An attacker could copy someone else's name/identity, use it for cybersquatting, and "lose" a UDRP/URS. Now that victim of identity theft would potentially have a liability for damages on a domain they never actually registered, using a registrar that they never had any relationship with. Most of the time, the registrar simply has a relationship with a purported identity, not a verified identity with a verified relationship (i.e. "Tom Cruise" is a real person, but the famous actor Tom Cruise is unlikely to be the actual registrant with a real relationship with a registrar, if that actor's name is placed into the WHOIS by an attacker). One of the proposals went even further, saying: https://community.icann.org/display/RARPMRIAGPWG/URS+Proposals "the penalties should include (i) a requirement that the registrant deposit funds into an escrow account, or provide an equivalent authorization on a credit card, with each new domain registration (such funds could be dispersed to prevailing complainants in future domain name disputes against that registrant as part of a “loser pays” system), and (ii) a universal blocking of all domain registrations for a set period for the registrant (i.e. “blacklisting” the registrant on a temporary basis)" (from proposal #30) It should be fairly obvious that such a scheme would enable an attacker to engage in a Denial of Service attack against a victim, by impersonating them (stealing their identity). e.g. (a) spend $20 total on a few dozen "throwaway" domains that have a sub-$1 dollar promo price (b) copy the victim's identity on a series of "famousbrand-authorized-store.newgtld" domains (c) wait for the victim to lose the URS/UDRP and be labelled a "repeat offender" or "high volume cybersquatter" Now when the *real* victim wants to register a domain at their real registrar, they'll suddenly encounter their name on a "blacklist"!! To show how truly vulnerable the system is to an attack, there's likely no real verification by the URS/UDRP providers that a *Complainant* is who they say they are! So, let's suppose the "victim" is "John Smith". The attacker has created the cybersquatting domains under the "John Smith" name, using multiple trademarks of Amazon, for example. Instead of waiting for the brandholder Amazon to file a URS (i.e. step (c) above), a truly motivated attacker (think state-funded actors, as an example, that want to interfere with a business competitor or an election) could go even further, and go impersonate the brandholder and file the URS or UDRP actions as a complaint! This email's getting long, and the more sophisticated readers can see where this takes us. I won't go into too much more detail now (can expand later, if desired), but you'd need to develop a system not only to verify identity properly, but also a system to *DISAVOW* domain name registrations. That disavowal system would be very hard for domains (a disavowal system was developed by Google for backlinks, https://support.google.com/webmasters/answer/2648487?hl=en , but that's much easier). [Real verification could take place via a digital signature system, like the one that exists in Estonia, for example] And even if one did verify identity properly (e.g. "John Smith" is labelled a serial cybersquatter), there are so many people that share common names (think China, India) that the blacklist would have collateral damage on many innocent registrants. And here's the thing -- an attacker can simply create a new real identity (even a "verified" one) very cheaply. For £12, (USD $15.59 at the time of this post), one can create a real UK company online within 24 hours: https://www.gov.uk/limited-company-formation/register-your-company (or effectively "free" if one uses a stolen credit card, as criminals tend to do!) So, even a "properly" implemented system would not be effective, if one can create new verified identities at low cost. The only real parties within the ICANN system that *are* verified are registrars and registries, and I think they would likely push back very hard if they are the "losers" who have to pay up. [an unverified Complainant can put up a security bond before filing a complaint, and to that extent that bond could also represent security if the Complainant loses, albeit the Complainant themselves may not be who they say they are. [by the way, I do like the idea of posting security bonds, but not in the manner that the proposals have suggested --- I would want security bonds as a means for registrants to completely *opt-out* of URS/UDRP, so that any disputes for a "bonded" registrant/domain can be handled only by the courts] Even the real legal system (court system) could be subject to attempts at foul play using these kinds of tricks. However, real courts have much stronger due process mechanisms and machinery (e.g. court orders, contempt, etc.) to deal with them (e.g. subpoena the registrar who enabled the identity theft, discovery, etc.) and the real victim would have to be properly served, etc.. URS/UDRP providers don't have those strong mechanisms or powers. So, I'm very sympathetic to the motivation behind these proposals, and the objective to go after the bad guys. I want loser pays too, in order to protect my company from frivolous complaints. I know others with valuable domains want the same thing. But, the proposals on the table right now will need much, much more work before I can support them. All the various vulnerabilities that are present in the system *today* will be magnified if "loser pays" or "penalties" are adopted without addressing issues like verification and identity theft first. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ P.S. I don't know if we have any SSAC members on this PDP, but the broader issue of vulnerabilities and identity theft might be passed on to them for advice.