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 LAW
Two White Street
Concord, NH 03301
USA
Email: [log in to unmask]
Phone: 1-603-513-5143
Webpage: http://www.law.unh.edu/marywong/index.php
Selected writings available on the Social Science Research Network (SSRN) at: http://ssrn.com/author=437584
>>>
From: Robin Gross <[log in to unmask]>
To: <[log in to unmask]>
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 credentials
  • Practices 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 abusers
  • Practices for suspending domain names
  • Account access security management
  • Security resources of use or interest to registrars and registries
  • Survey 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




IP JUSTICE
Robin Gross, Executive Director
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