Dear TPR WG members,

Please find below the notes and action items from today’s meeting.

The next meetings will be at ICANN76 with remote access:

Session 1: Saturday, 11 March at 09:00-10:00 Cancun (UTC-5) 14:00 UTC

Session 2: Sunday, 12 March at 10:30-12:00 Cancun (UTC-5) 15:30 UTC

Best regards,

Emily, Julie, Berry, and Caitlin

ACTION ITEMS/HOMEWORK:

Re: TDRP -- Staff to research whether there are materials describing the goals of the TDRP.

Notes:

Transfer Policy Review - Meeting #83

Proposed Agenda

07 March 2023

1. Roll Call & SOI updates

- Carolyn Mitchell, new Alternate from the RySG.

2. Welcome and Chair Updates

• Reminder that we have two sessions coming up in Cancun. The first will be on Sat 11 March from 9:00-10:00 local time. The focus will be on continuing to work through our TDRP charter questions. The second session will be on Sun 12 March from 10:30-12:00 and will be focused on the "gap analysis" of any unmet needs not covered by the current TDRP and TEAC. Folks are encouraged to think ahead about what they think is missing, to ensure we have a productive conversation.
• Next, the request for early input on group 2 topics went out to SO/AC/SC/Cs last Tuesday. Input is requested by 4 April.  WG members are encouraged to flag this in their internal group meetings during ICANN76.
• Work Plan: No open action items at the moment.  Today we will talk about the TDRP and in the first session at ICANN76 on the Saturday.  Once we've done the gap analysis discussion, we may want to revisit the sequence of discussion of TDRP and TEAC charter questions based on any unmet needs identified by the group.  But for now, this is the sequence of topics as planned.  We will be adjusting the work plan as it develops.  Plan to wrap up the charter questions by early June.
• TPR is also on the agenda in the Sunday March 12 afternoon TechOps Session 1 at 13:15.
• Owen Smigelski: During the RySG/RrSG meeting at ICANN76 we will be talking about TPR.

3. Introduction to Transfer Dispute Resolution Policy Working Document [docs.google.com] and discussion

Overview of the Working Document:

• Main inputs are the survey inputs from the Policy Status Report.  See https://www.surveymonkey.com/results/SM-Q2J8JZRQV/.  Responses are from 2018.
• Excerpts in the Working Document as they relate to the TDRP.
• Cases: ADNDRC: https://www.adndrc.org/decisions/tdrp, FORUM: https://www.adrforum.com/domain-dispute/search-decisions
• Just a few charter questions on whether the TDRP is doing its job and whether it is effective.
• ICANN Compliance has no other data – there were some cases that stated that they were related to the TDRP, but when investigated it was found that they were not related.
• WG members should review:
  • Section 3.1 of the Transfer Dispute Resolution Policy specifies information that must be included with the complaint.
  • Section 3.2.1 of the Transfer Dispute Resolution Policy specifies information that must be included in the response by the respondent.
• Charter questions relating to data retention and data protection policy:
  • g4) Are requirements for the processing of registration data, as specified in the TDRP, compliant with data protection law?
  • g5) Are requirements for the processing of registration data, as specified in the TDRP, appropriate based on principles of privacy by design and data processing minimization?
    • Note: Justification for retention relating to GDRP, depends on what is needed for the Transfer Policy.  These questions should not be looked at in isolation, but they hinge on what is in the draft data retention policy and the 15-month data retention.
    • WG members should review Sections 3.1.2 and 3.1.4 of the Transfer Dispute Resolution Policy for additional context on this question.  See: https://community.icann.org/display/RDPIRT/RegDataPolicy+Implementation+Resource+Documents?preview=/124847947/212107349/Draft%20Registration%20Data%20Policy%20for%20Public%20Comment.pdf
• Question: Is it documented as to what the goals of the TDRP are?  So we can gauge the effectiveness?  Answer: Not sure the goals are laid out, but the purpose is to resolve a dispute.  Question relates to the gap analysis the WG will be discussing at ICANN76.
• Question: Can a RNH initiate a TDRP without a registrar? Answer: It technically has to come from the losing registrar (which could be initiated by a RNH) – it is one of the questions the WG will be considering.
• This is a question that the IRTP D group previously reviewed - should domain name holders have direct access to the TDRP. https://gnso.icann.org/sites/default/files/filefield_46639/irtp-d-final-25sep14-en.pdf (The WG did not recommend to open the TDRP up to registrants during this review.)
• Staff: Not clear that opening up the TDRP to RNHs or accreditation are in the scope of this PDP; WG should focus on the charter questions.
• Questions: Isn’t the charter question G3 an opportunity to look at opening the TDRP to the RNH?  Answer: Not specifically.  If we see the TDRP is insufficient it is for the WG to identify it or not.  Another group could take this up.

ACTION ITEM: Re: TDRP -- Staff to research whether there are materials describing the goals of the TDRP.

Poll:

Q1: As it currently stands, do you believe the TDRP is an effective dispute resolution mechanism?

1. Yes – 8%
2. No – 67%
3. Not sure/no answer – 25%

Discussion/Results:

• Majority think it’s not working in its current form.
• What’s the argument saying this is effective?
• No one uses it – is that to say it’s not effective?

Q2: Is the current statute of limitations for the TDRP appropriate? In other words, is 12 months from the date of the alleged improper transfer an acceptable deadline to file a TDRP complaint?

1. Yes, it is appropriate.  – 27%
2. No, it should be shorter. – 55%
3. No, it should be longer. – 18%

Discussion/Results:

• Question: Are we assuming that the TDRP is the only part of the timeline?  Answer: TEAC is a part of the transfer dispute process – so the  12 months is for an overall process.  We can come back to this as part of the gap analysis.
• If shorter we’ll need to think about why and how long.
• For longer – concern was the legal requirement of discoverability, which could require more time.
• Don’t think it can be longer because the domain name might have expired.
• If the domain name is expired then the procedure couldn’t be used.
• Time period depends on what problem we are trying to solve.  Can’t know until we know the problem.
• Could look at the date of the last transfer for transfers that happened in the last two years.  Look also at the lock-in periods.
• The IRTP Part D Working Group’s Recommendation 5 resulted in the extension of the statute of limitations to initiate a TDRP from 6 months to 12 months. In its deliberations, the Working Group noted that many registrants do not regularly check the status of their domain names, and therefore 6 months may not be long enough to notice a disputable transfer and notify the registrar, who in turn would need to initiate a dispute. The Working Group considered registrars’ obligation under the Whois Data Reminder Policy (WDRP) to contact registrants annually, and noted that an extension to 12 months may be desirable in this regard. According to the Working Group’s Final Report, the extension could “mitigate multi-hop transfer problems by providing the losing registrant additional ‘reaction time’ to inquire with their registrar after they did not receive their annual reminder to update their contact information.” In addition, the Working Group did not believe that that extension unduly burdened legitimate transfers.
• Would need to think about whether it should be shorter or longer and WG would have to agree on a change from status quo and why.

Q3: What do you believe is the main factor that results in the low number of TDRP filings?

1. Cost of filing a TDRP complaint (loser pays model) – 0%
2. Registrars work out the issue amongst themselves and do not resort to filing a TDRP – 30%
3. Length of time between filing and panel decision – 0%
4. Not sure/no answer – 10%
5. Other – 60%

Discussion/Results:

• Some WG members selected “other” as an all of the above.

Q4: Currently, only registrars have standing to file a TDRP claim. Is this appropriate, or should registrants also have the ability to file a TDRP claim?

1. It should remain as is - only registrars may file – 60%
2. Registrants should also have the ability to file a claim. – 20%
3. Not sure/no answer – 20%
4. Other – 0%

Discussion/Results:

• If there was a separate service, it should be available to registrants, but there isn’t so TDRP should just be for registrars.  A service for registrants would have to be completely different.
• We have too make sure that a RNH has an easy way to solve a dispute.
• In order to file a TDRP you have to have access to a lot of internal registrar documentation.  Also, opening up to non-registrars could allow it to be gamed by bad acters.
• A dispute mechanism for registrants could be designed to mitigate gaming.
• In the current TDRP, a registrant could file a complaint through their (losing) registrar. That might not be the same as the registrant having its own path.  But could we require the registrant to go through a TDRP before going another way.

Q5: Are the current reporting requirements appropriate to enable future review of the TDRP?

1. Yes – 20%
2. No – 20%
3. Not sure/no answer – 60%
4. Other – 0%

Discussion/Results:

• Would any changes create more reporting compliance requirements?  Yes, they could.
• Currently, the only data publicly available is the summary of  cases themselves published on the providers’ websites.
• WG should consider if we should be requesting more data.

For next meeting:

Q6: Are requirements for the processing of registration data, as specified in the TDRP, compliant with data protection law?

1. Yes
2. No
3. Not sure/no answer
   
   

Q7: Based on the WG’s discussion to date, do you believe additional mechanisms (other than TEAC or TDRP) may be necessary to resolve improper transfers? 

1. Yes
2. No
3. Not sure/no answer

4. AOB