Thank you for our discussion about the URS-1 last Tuesday. I
appreciate the close read and consideration given to our research
and history of the RPM WG Recommendation #1. We dug deeply into
the Final Report and URS Rules.
I look forward to continuing our discussion this week. For anyone
who missed it, I reshare my email of last Sunday.
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Hi All,
Belated Happy New Year greetings, and sending our thoughts, best
wishes and prayers to friends and everyone in the LA area.
In preparation for our last meeting (originally December), and
URS-1, some of us did a lot of research and historical
investigation. We dug deeply in the RPM PDP WG Final Report
because our IRT discussion did not reach key questions –
what was the history of the section? What had the Working
Group discussed? What was the range of the recommendation
provided by the WG?
Did the RPM PDP Working Group want to invite broad and
unbounded changes to the URS filing?
We found that the RPM PDP WG had a very narrow purpose in its
Recommendation #1, and a clear focus. We share our findings
below with you – to take all of us back to the original policy
discussions of the RPM IRT Working Group, now over five years
ago.
-
The RPM PDP Working Group wrote a clear recommendation and
provided written context for it.
“2.2
Uniform Rapid Suspension (URS) Final Recommendations
“2.2.1
URS Recommendations for New Policies and Procedures
“URS Final Recommendation #1
“The Working Group recommends that URS Rule 3(b), and,
where necessary, a URS Provider’s Supplemental Rules
be amended to clarify that a Complainant must only be
required to insert the publicly-available
WHOIS/Registration Data Directory Service (RDDS) data
for the domain name(s) at issue in its initial
Complaint.
“Furthermore, the Working Group recommends that URS
Procedure paragraph 3.3 be amended to allow the
Complainant to update the Complaint within 2-3
calendar days after the URS Provider provides updated
registration data related to the disputed domain
name(s).
“This
recommendation specifically concerns the following parts
of the URS Rules and URS Procedure:
• URS Rule 3(b)(iii): Provide the name of the Respondent
and all other relevant contact
information
from the Whois record as well as all information known
to Complainant
regarding
how to contact Respondent or any representative of
Respondent, including
contact
information based on pre-complaint dealings, in
sufficient detail to allow the
Provider to notify the Respondent of the complaint as
described in Rule 2(a);
• URS Procedure paragraph 3.3: Given the rapid nature of
this Procedure, and the
intended
low level of required fees, there will be no opportunity
to correct inadequacies
in the
filing requirements.
“Since the implementation of the European Union’s
General Data Protection Regulation (GDPR), personally
identifiable information, including a registrant’s
contact details, has been masked in the public
WHOIS/RDDS data. URS Providers receive the contact
information and other relevant WHOIS/RDDS data of the
registrants from Registries or Registrars.
“In May 2018, the ICANN Board approved a Temporary
Specification as an interim measure to
bring existing WHOIS obligations in line with
requirements of GDPR.6 In relation to the URS,
Section 5.6 of the Temporary Specification obligates
ICANN’s Contracted Parties to comply with Appendix D of
the Temporary Specification (and, relatedly, Appendix E
for the UDRP). Appendix D states that a Registry
Operator “MUST provide the URS provider with the full
Registration Data for each of the specified domain
names, upon the URS Provider notifying the Registry
Operator (or appointed BERO) of the existence of a
Complaint, or participate in another mechanism to
provide the full Registration Data to the Provider as
specified by ICANN…”
Plus, we know the long-standing procedural provision which the
RPM PDP Working Group expressly endorsed:
“3.3 Given the rapid nature of this Procedure, and the
intended low level of required
fees, there will be no opportunity to correct
inadequacies in the filing requirements.”
-
If the RPM Policy Development Process Working Group wanted to
modify other technical filing requirements of the URS
Complainant, they could certainly have done so.
There are many technical filing requirements of the URS listed
in URS Rule 3(b), and the RPM PDP Working Group chose only one
of them, 3(b)(iii), as the focus of its work (registrant contact
data).
Had the Working Group wanted to do so, it could have written
recommendations to modify other technical filing requirements,
including domain names, trademarks, and explanatory text because
URS Rule 3(b)(iii)
is only one technical filing requirement among many
specific URS technical filing requirements:
(b) The
Complaint, including any annexes, shall be submitted
using an electronic
form
made available by the Provider and shall:
(i) Request that the Complaint be submitted for
determination in
accordance with the URS Procedure, these Rules and the
Provider’s
Supplemental
Rules;
(ii)
Provide the name, contact person, postal and email
addresses, and the
telephone
and telefax numbers of the Complainant and of any
representative authorized to act for the Complainant in
the URS
proceeding;
(iii)
Provide the name of the Respondent and all other
relevant contact
information
from the RDDS record as well as all information known to
Complainant
regarding how to contact Respondent or any
representative
of Respondent, including contact information based on
pre-complaint
dealings,
in sufficient detail to allow the Provider to notify the
Respondent
of the
complaint as described in Rule 2(a); The Complainant's
Complaint
must
not be deemed defective for failure to provide the name
of the
Respondent
(Registrant) and all other relevant contact information
required by Section 3 of the URS Rules if such contact
information of the
Respondent
is not available in Registration Data publicly available
in
RDDS
or not otherwise known to Complainant. In such an event,
Complainant
may file a complaint against an unidentified Respondent
and
the
Provider shall provide the Complainant with the relevant
contact
details of the Registrant after being presented with a
complaint against an
unidentified
Respondent.
(iv) Specify the domain name(s) that is/are the subject
of the Complaint.
The
Complainant shall include a copy of the currently
available
Registration
Data and a copy, if available, of the offending portion
of the
website content associated with each domain name that is
the subject of
the
complaint;
(v)
Specify the trademark(s) or service mark(s) on which the
complaint is
based
and the goods or services with which the mark is used
including
evidence of use – which can be a declaration and a
specimen of current
use in
commerce - submitted directly or by including a relevant
SMD
(Signed Mark Data) from the Trademark Clearinghouse;
(vi)
Identify which URS Procedure elements (URS 1.2.6) the
Complainant
contends
are being violated by Respondent’s use of the domain
name.
This will be done by selecting the elements from URS
Procedure section
1.2.6
that apply from the list provided on the Provider’s
Complaint form;
(vii) An optional explanatory statement of no more than
500 words in a
separate
free form text box;
(viii) Identify any other legal proceedings that have
been commenced or
terminated
in connection with or relating to any of the domain
name(s) that
are
the subject of the Complaint;
(ix)
State that Complainant will submit, with respect to any
challenges to a
determination
in the URS proceeding, to the jurisdiction of the courts
in at
least one specified Mutual Jurisdiction;
(x)
Conclude with agreement to the following statement:
“Complainant
agrees that its claims and remedies concerning the
registration
of the domain name, the dispute, or the dispute's
resolution
shall be solely against the domain-name holder and
waives all such claims
and
remedies against (a) the Provider and Examiner, except
in the case of
deliberate wrongdoing, (b) the Registrar, (c) the
Registry Operator, and (d)
the
Internet Corporation for Assigned Names and Numbers, as
well as
their directors, officers, employees, and agents…. *** "
-
To go beyond the intent, work and express language of the RPM
PDP Working Group, we respectfully submit takes this IRT into
a policy-making territory, and we have no authority to do
that.
The goal of the RPM PDP Working Group, in light of its own
record, recommendation, and context, shows that the WG intended
to allow Registrant data to be added – a modification to one of
the many URS technical filing requirements. To do more,
unfortunately, is for us to create policy.
But Implementation Review Teams do not have the authority to
write policy. We seek to implement the rules and
recommendations created by the Policy Development Process
Working Groups. It is these PDPs that have the time,
opportunity, and mandate for broader policy research, debate,
discussion and creation/modification. That’s simply no our IRT
mandate.
Thus, and although it meant diving deeply, we share with you our
research and the clear and narrow intent of the RPM PDP Working
Group to solve the then-very relevant concern of the GDPR and
newly-redacted Registrant data – and the need, very
specifically, to be able to add that data into the filing.
At this point, allowing changes to other filing requirements,
including trademarks, domain names and explanatory statements,
is for us to enter the realm of policy and that is beyond our
mandate.
Best, Kathy
--------------
p.s. Here is the analysis we added to the December 6th Staff
Report, as requested by the IRT and Staff (edited to
correct a few misspellings):
“Assessment from some members of the RPM-IRT”
"It is clear to us after careful review of the full text of the
Recommendation of the Final Report, and the wording of URS Rule
3(b)(iii), that the RPM PDP Working Group intended a narrow
tweak to the URS rules and procedures. Specifically, and prior
to GDRP, the original URS Rules in the first round required the
URS Complainant to list the contact details of the URS
Respondent and then URS Procedure 3.3 barred any changes to the
Complaint.
But after the GDPR implementation in May 2018, and the redaction
of WHOIS data by ICANN-Accredited Registrars, most Complainants
did not have the data of the domain name Registrant, the
Respondent. Accordingly, they could not enter it, and they were
concerned that their URS Complaints might be deemed inadequate
or incomplete.
This is the issue to which the RPM PDP Working /Group dedicated
itself (with two of its members in this group and part of this
assessment). It is very clear in Recommendation One that the WG
group agreed to allow the Complainant to a) learn who the
Registrant is after filing the URS Complaint and b) without
penalty, amend her/his/its complaint to reflect this new data.
That required a narrowly-tailored change to one section of the
URS Rules, namely Recommendation One to modify the technical
filing requirement to include Registrant data in the complaint,
URS Rule 3(b)(iii), URS Procedure 3.3, barring any changes to
the Complaint.
The RPM PDP WG agreed to allow the Complainant to insert the
Registrant data into the Complaint after a process of discovery
after the filing of the Complaint.
If the Working Group had wanted to amend any other section of
the Complaint’s Technical Filing Requirements, it would have
done so, and modified URS Rule 3b(iv) - domain names – or URS
Rule 3b(vi) the Complaint. But the Working Group did not even
discuss any other type of change – just the addition of
Registrant data.
The RPM Working Group did not debate, evaluate or consider the
costs, problems, issues or concerns of modifying a complaint to
add one (or 100) more domain names or to change in part (or in
whole) the original Complaint already submitted to the Provider.
If such wholesale changes had been discussed, the Working Group
would have a record and the recommendations would have reflected
the agreement.
Instead, we have a very narrowly-tailored recommendation to
allow the Complaint to amend one (and just one) technical filing
detail of the Complaint, and that’s the Registrant data. Nothing
more.
To do more - regardless of additional cost or effort (and our
IRT discussion revealed there is a great deal of both to add
domain names and modify the complaint) – is to greatly exceed
the scope and power of the Implementation Review Team. Such
broader changes would be new policy, and such new policy is
beyond the scope of an IRT. Policy can only be made by a PDP
Working Group or the Council."
Dear RPM IRT,
We’d
like to follow up on our previous email to inform you that the
RPM IRT meetings will now be scheduled biweekly on
Tuesdays at 18:00 UTC. As a result, Meeting #14 will take
place on Tuesday, 21 January, instead of this week. The
invitation will be sent out later this week.
Additionally,
please find the agenda for the call below, which is also
available on the
wiki:
PROPOSED
AGENDA
- Review
updated RPM implementation
timeline
- Discuss
publication of educational materials (Groups 2)
- Continue
discussion on next steps on
RPM
Recommendation URS-1 regarding the scope
of amendments to a complaint (URS
Rules Section
3(b)(iii))
- Continue
reviewing the revised
Trademark
Claims Notice
- AOB
Please
let us know of any questions.
Thank
you!
Best,
Antonietta
Dear
RPM IRT,
Happy
New Year! I hope you all had a restful and enjoyable holiday
break.
As
we prepare to reconvene this month, we would like to provide a
recap of the progress made with the work related to the
following RPM implementation groups:
Group
1: Currently, there are two open implementation items in
this group:
- URS
Recommendation 1: We requested IRT feedback on the URS-1
document by
6 December 2024. Staff has since updated the document to
include:
- Additional
text in Section I (Background)
- Additional
text in Section II (“Inputs from the IRT”), incorporating
summarized input from a few RPM IRT members
- The
new text added since 6 December is highlighted in yellow
in the URS-1 document
As a reminder, due to the lack of consensus within the IRT
regarding the language for URS Rule 3(b), the next step, as per
the IRT
Principles
and Guidelines, is to raise the issue with
the GNSO Council liaison at the next IRT meeting. The liaison
will assess the level of consensus and determine whether the
matter should be brought to the GNSO Council for their
consideration at their 13 February meeting. Consequently, the
RPM implementation
timeline,
which had originally targeted the completion of Group 1 items by
December 2024, will need to be revised.
-
Trademark Claims Notice:
We appreciate the input many of you have already shared on
the Trademark Claims notice
document.
Please continue to review the changes and provide
any additional feedback before IRT Meeting #14, where we
will continue our discussion on this item.
Group
2: All final edits/comments to the educational materials
were requested by 6 December 2024, and the
document is
now considered final. At our next IRT Meeting #14, staff will
discuss with the IRT whether it makes sense to proceed with the
publication of the educational materials now, or whether it
would be preferable to wait until the revised RPM documents
(such as the URS and RPM Requirements) are finalized, allowing
us to publish everything together as initially planned.
Group
3: Staff is currently working with the relevant internal
departments on the implementation of URS Recommendation 12, the
only recommendation in this group, which calls for stakeholders
involved in the URS process to review and update contact data.
We will provide an update to the RPM IRT once the details
regarding the implementation of this recommendation are
finalized.
Meeting
Schedule:
As
mentioned before the holiday break, we would like to establish a
recurring schedule for RPM meetings going forward and propose
holding them every other week.
Please take a moment to review the
available options below for Meeting #14 (which will also
serve as the time for future IRT meetings) and indicate your
availability here:
https://doodle.com/meeting/participate/id/eE1G60le
- Tuesday,
14 January (18:00 - 19:00 UTC)
- Wednesday,
15 January (18:00 - 19:00 UTC)
- Wednesday,
15 January (19:00 - 20:00 UTC)
- Wednesday,
15 January (21:00 - 22:00 UTC)
- Thursday,
16 January (19:00 - 20:00 UTC)
Lastly,
the proposed agenda and materials for RPM IRT Meeting #14 are
also available on the
wiki page.
If
you have any questions or need further clarification, please
don’t hesitate to reach out to us.
Best,
Antonietta
& Karen