GNSO Council resolutions 3 February 2011

[Mary Wong]

Just some brief background/explanations, particularly for those who may
have noticed that an "Issues Report" is being requested for the Uniform
Dispute Resolution Policy (UDRP) review, but a "discussion paper" is
being requested for the preparation of best practices by registrars and
registries to tackle abusive registrations, and wondered why. BTW as
these are topics that affect many non-commercial users, and quite a few
members are interested in them, keep a watch out for what the Report and
paper have to say when they are published.
 
In addition, as I explain below, the context for this Resolution may
have some bearing on how the Council eventually determines what
boundaries and guidelines would operate to initiate and charter a
Cross-Community Working Group (CWG) - an issue that has clouded
substantive discussion over the Rec 6 "morality & public order"
recommendations from the CWG that we (NCSG) participated substantially
in and, perhaps even more significantly, the group that's working on
developing applicant support for new gTLDs - chaired by Rafik and in
which NCSG also has substantial participation.
 
An Issues Report, under the current Policy Development Process (PDP)
rules of the GNSO, is a necessary preliminary step to a PDP. To launch
an Issues Report requires EITHER a majority vote of one of the two
Houses of the GNSO OR a 25% vote in favor from BOTH Houses. This is
different from the usual voting threshold for most Council resolutions,
where the regular rule is a majority vote of each House - so the voting
threshold to launch an Issues Report is lower than for most Council
resolutions (it's a different matter when it comes to launching the
actual PDP following an Issues Report). So, since the UDRP was an
outcome of policymaking by the GNSO 10+ years ago, any review/revision
of it MUST go through a PDP, therefore first requiring an Issues
Report.
 
The "discussion paper" language for the best practices resolution was
inserted at the last minute to replace the original wording (which used
the term "Issues Report", following the actual recommendation by the
Registration Abuse Policies Implementation Drafting Team). Besides the
fact that this would have required the higher voting threshold (which
wasn't actually an issue ultimately here), the more significant point is
that "best practices" are (1) entirely voluntary, and (2) do NOT in the
opinion of some form actual "policy" recommendations within the scope of
the GNSO.
 
The "policy vs. practices/implementation" and "scope" issues are live
issues within the GNSO, and the Council has not yet engaged in a full
discussion of their boundaries. Some partial good news is that, if/when
the proposed new PDP guidelines are adopted (hopefully later this year),
it will be clearer that "policy development" by the GNSO can encompass
best practices - this will not, however, fully answer the CWG question,
which has more to do with Council/GNSO concerns over ceding turf to
non-GNSO groups than pure "policy/practice" boundaries.
 
This issue will come up soon, as the Council has committed to
discussing CWGs. It is likely to be a difficult and political discussion
- I trust that NCSG members will support our interpreting the GNSO's
mandate to NOT be as narrow as to preclude participation in and
collaboration with other ICANN entities in order to generate meaningful
policies.
 
Cheers
Mary

 
Mary W S Wong
Professor of Law
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAWTwo White StreetConcord, NH
03301USAEmail: mary.wong at law.unh.eduPhone: 1-603-513-5143Webpage:
http://www.law.unh.edu/marywong/index.phpSelected writings available on
the Social Science Research Network (SSRN) at:
http://ssrn.com/author=437584>>> 


From: Robin Gross <robin at IPJUSTICE.ORG>
To:<NCSG-NCUC-DISCUSS at listserv.syr.edu>
Date: 2/7/2011 2:38 AM
Subject: Fwd: GNSO Council resolutions 3 February 2011
Begin forwarded message:




Dear All,


FYI

Ahead of the official Council minutes, please find the motion that was
passed during the Council meeting on 3 February 2011.

Motion in response to the Registration Abuse Policies Working Group
(RAP WG) final report.


Whereas the Registration Abuse Policies Working Group submitted its
report to the GNSO Council on 29 May 2010 (see
http://gnso.icann.org/issues/rap/rap-wg-final-report-29may10-en.pdf),
and

Whereas the GNSO Council reviewed the report and its recommendations
and decided to form an implementation drafting team to draft a proposed

approach with regard to the recommendations contained in the
Registration Abuse Policies Working Group Final Report, and

Whereas the Registration Abuse Policies Implementation Drafting Team
submitted its proposed response to the GNSO Council on 15 November
2010
(see
http://gnso.icann.org/correspondence/rap-idt-to-gnso-council-15nov10-en.pdf),

and

Whereas the GNSO Council considered the proposed approached at its
Working Session at the ICANN meeting in Cartagena.

RESOLVED #1, the GNSO Council instructs ICANN Policy Staff to forward
the two issues identified by the RAP IDT as having low resource

requirements, WHOIS Access recommendation #2 and Fake Renewal
Notices recommendation #1, to ICANN Compliance Staff for resolution.
ICANN
 Compliance Staff is requested to provide the GNSO Council with
its feedback on the two recommendations and proposed implementation in a
timely manner.

RESOLVED #2, the GNSO Council requests an Issues Report on the current
state of the UDRP. This effort should consider:
How the UDRP has addressed the problem of cybersquatting to date, and
any insufficiencies/inequalities associated with the process.
Whether
the definition of cybersquatting inherent within the existing UDRP
language needs to be reviewed or updated.
 The Issue Report should
include suggestions for how a possible PDP on this issue might be
managed.

RESOLVED #3, the GNSO Council requests a discussion paper on the
creation of non-binding best practices to help registrars and registries
address the abusive registrations of domain names in accordance with the
Registration Abuse Policies Working Group Final Report.

This effort should consider (but not be limited the following
subjects:
Practices for identifying stolen credentialsPractices for identifying
and investigating common forms of malicious use (such as malware and
phishing)Creating anti-abuse terms of service for possible inclusion in
Registrar-Registrant agreements by registrars who adopt them, and for
use by TLD operators who adopt them.Identifying compromised/hacked
domains versus domain registered by abusersPractices for suspending
domain namesAccount access security managementSecurity resources of use
or interest to registrars and registriesSurvey registrars and registries
to determine practices being used, and their adoption rates.

RESOLVED #4 (As proposed by Zahid Jamil): Resolved, the GNSO Council
instructs ICANN Policy Staff to add the remaining RAP Recommendations to
the GNSO Project List so that the GNSO Council can keep track of the
remaining recommendations and address these as appropriate. These
remaining RAP Recommendations are:

·         WHOIS Access – Recommendation #1: The GNSO should determine
what additional research and processes may be needed to ensure that
WHOIS data is accessible in an appropriately reliable, enforceable, and
consistent fashion.
The GNSO Council should consider how such might be related to other
WHOIS efforts, such as the upcoming review of WHOIS policy and
implementation required by ICANN’s new Affirmation of Commitments.
·         Uniformity of Contracts:
View A: The RAPWG recommends the creation of an Issues Report to
evaluate whether a minimum baseline of registration abuse provisions
should be created for all in-scope ICANN agreements, and if created, how
such language would be structured to address the most common forms of
registration abuse.
View B: Opposed to the recommendation for an Issues Report as expressed
in view A
·         Gripe Sites; Deceptive and/or Offensive Domain Names –
Recommendation #1:
Rough Consensus: Make no recommendation. The majority of RAPWG members
expressed that gripe site and offensive domain names that use trademarks
should be addressed in the context of cybersquatting and the UDRP for
purposes of establishing consistent registration abuse policies in this
area, and that creating special procedures for special classes of
domains, such as offensive domain names, may present problems.
Alternate view: The URDP should be revisited to determine what
substantive policy changes, if any, would be necessary to address any
inconsistencies relating to decisions on “gripe” names and to provide
for fast track substantive and procedural mechanisms in the event of the
registration of deceptive domain names that mislead adults or children
to objectionable sites.
·         Cybersquatting – Recommendation #2:
View A: The RAPWG recommends the initiation of a Policy Development
Process by requesting an Issues Report to investigate the
appropriateness and effectiveness of how any Rights Protection
Mechanisms that are developed elsewhere in the community (e.g. the New
gTLD program) can be applied to the problem of cybersquatting in the
current gTLD space.
View B: The initiation of such a process is premature; the
effectiveness and consequences of the Rights Protection Mechanisms
proposed for the new TLDs is unknown. Discussion of RPMs should continue
via the New TLD program.  Experience with them should be gained before
considering their appropriate relation (if any) to the existing TLD
space.
·         Fake Renewal Notices – Recommendation #2 – conditional on #1:
The following recommendation is conditional. The WG would like to learn
the ICANN Compliance Department’s opinions regarding Recommendation #1
above, and the WG will further discuss Recommendation 2 looking forward
to the WG’s Final Report.
The RAPWG recommends the initiation of a Policy Development Process by
requesting an Issues Report to investigate fake renewal notices.
·         Meta Issue: Collection and Dissemination of Best Practices:
The RAPWG recommends that the GNSO, and the larger ICANN community in
general, create and support structured, funded mechanisms for the
collection and maintenance of best practices.
·         Cross-TLD Registration Scam: The RAPWG recommends the GNSO
monitor for Cross-TLD registration scam abuse in the gTLD space and
co-ordinate research with the community to determine the nature and
extent of the problem. The WG believes this issue warrants review but
notes there is not enough data at this time to warrant an Issues Report
or PDP.
·         Meta Issue - Uniformity of Reporting: The RAPWG recommends
that the GNSO, and the larger ICANN community in general, create and
support uniform reporting processes.
·         Gripe Sites; Deceptive and/or Offensive Domain Names –
Recommendation #2:
View A: Turn down a proposed recommendation that registries develop
best practices to restrict the registration of offensive strings.
View B: Registries should consider developing internal best practice
policies that would restrict the registration of offensive strings in
order to mitigate the potential harm to consumers and children.
·         Domain Kiting / Tasting: It is unclear to what extent domain
kiting happens, and the RAPWG does not recommend policy development at
this time. The RAPWG suggests that the Council monitor the issue (in
conjunction with ongoing reviews of domain-tasting), and consider next
steps if conditions warrant.

Please let me know if you have any questions.

Thank you.
Kind regards.

Glen


Glen de Saint Géry
GNSO Secretariat
gnso.secretariat at gnso.icann.org
http://gnso.icann.org










IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451
w: http://www.ipjustice.org     e: robin at ipjustice.org





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