[council] RE: [gnso-dt-wg] FW: Summary of public comments on a draft GNSO Council resolution to curb domain tasting

["Rosette, Kristina" <krosette@xxxxxxx>]

Jeff,
 
I read the updated Registry Constituency Statement to mean that it
already opposes the motion.  Is that a correct interpretation?  If so,
then references to registry opposition in your comments below would seem
to be moot.
 
K


________________________________

        From: owner-gnso-dt-wg@xxxxxxxxx
[mailto:owner-gnso-dt-wg@xxxxxxxxx] On Behalf Of Neuman, Jeff
        Sent: Monday, March 31, 2008 4:34 PM
        To: Liz Gasster; gnso-dt-wg@xxxxxxxxx
        Cc: Council GNSO
        Subject: RE: [gnso-dt-wg] FW: Summary of public comments on a
draft GNSO Council resolution to curb domain tasting
        
        

        All,

         

        To start some discussion on these public comments on the
recommendations in the Additional Analysis Section, I just wanted to
give some of my thoughts:

         

        *       Comments on "extraordinary circumstances" provision of
the pending draft motion.  Several comments voice concern that the
language would provide a loophole and be unenforceable.  ED, INTA, HL,
Dell.    INTA suggests adding an illustrative list of the types of
circumstances that would be considered "extraordinary".  

         

        Jeff Neuman - I disagree this is a loophole and believe that
fears are overstated and I would recommend not addressing this in the
motion as it will just result in delay.  There is no way we will be able
to develop an exhaustive list.  This is why we have review periods built
in....if there are problems, the review period will address them.  

         

        *       Concerns about the need for stepped up enforcement.  DF,
JW, CADNA 

         

        Jeff Neuman - Not sure what to say here, except this is a
comment for ICANN staff.  Is there more insight into this?

         

        *       There were specific recommendations to change certain
provisions in the draft motion, as follows: 

                *       In the clause that states:  "During any given
month, an Applicable gTLD Operator may not offer any refund to a
registrar for any domain names deleted during the AGP that exceed (i)
10% of that registrar's net new registrations in that month", change
"may not" to "shall not".  INTA, HL, Dell 

         

        Jeff Neuman - This is the problem with comments being submitted
by lawyers (and not contract attorneys) :-)  Seriously, if the above
language were in a contract ("may not"), there is no difference between
that and "shall not".  While the words "may" and "shall" have different
meanings if used in contracts, "may not" and "shall not" have the same
meaning.    For example, stating Registry "may" offer a refund has a
different meaning than "shall offer a refund," but "may not" and "shall
not" are the same.  Both are mandatory.  Lets not over lawyer a  GNSO
motion.  Remember, the GNSO is not responsible for crafting contract
language, but rather just policies. 

        
        That said, I would be happy to hear other thoughts on this.  

         

                *       Provide specific guidance as to the meaning of
"regularly" in paragraph 1.b of the motion, regarding the frequency of
circumstance that would not be considered extraordinary.  INTA, Dell 

         

        Jeff Neuman - Disagree with this comments for same reasons as
the first comment on "extraordinary circumstances."  This too would be
over-lawyering and I believe would result in delay.  Again, there is a
review period to address this. 

         

                *       Require public disclosure of information that is
required to be reported by applicable gTLD operators.  INTA 

         

        Jeff Neuman - I disagree with this comment.  It should be
disclosed to ICANN, but not to the public.  For example, lets say a
registrar's systems are hacked into and this results in a number of
registrations that need to be deleted within the AGP.   The number of
registrations end up constituting more than 10% of their adds for a
specific TLD.  An exemption is granted by the Registry for the
additional deletes.  This potentially embarrassing information is no
business for the pubic at large.   It is up to ICANN to enforce these
policies.   The registries would oppose this and I am fairly confident
the registrars would as well. 

         

                *       Establish time frames for implementation.  INTA 

         

        Jeff Neuman - The .com agreement states: "Registry Operator
shall be afforded a reasonable period of time following notice of the
establishment of a Consensus Policy or Temporary Specifications or
Policies in which to comply with such policy or specification, taking
into account any urgency involved."  This is an issue for ICANN staff.
The implementation of a Consensus Policy is not a matter of "policy",
but rather contract and is outside of the "picket fence."  Changing the
motion to provide a time frame for implementation would likely garner
opposition from the registries and would result in significant delay.

        
        Thanks.

         

         

        Jeffrey J. Neuman, Esq. 
        Sr. Director, Law, Advanced Services  & 

        Business Development 

        NeuStar, Inc. 
        e-mail: Jeff.Neuman@xxxxxxxxxx <mailto:Jeff.Neuman@xxxxxxxxxx>  

        
________________________________


        From: owner-gnso-dt-wg@xxxxxxxxx
[mailto:owner-gnso-dt-wg@xxxxxxxxx] On Behalf Of Liz Gasster
        Sent: Monday, March 31, 2008 3:12 PM
        To: gnso-dt-wg@xxxxxxxxx
        Cc: Council GNSO
        Subject: [gnso-dt-wg] FW: Summary of public comments on a draft
GNSO Council resolution to curb domain tasting

         

        Forwarded is staff's summary of the public comments received
within the public comment period. It should be posted shortly to the
public comments page for this topic. 

         

        http://www.icann.org/public_comment/#domain-tasting

         

         Thanks, Liz

         

        
________________________________


        From: Liz Gasster 
        Sent: Monday, March 31, 2008 12:07 PM
        To: 'domain-tasting-motion@xxxxxxxxx'
        Cc: 'GNSO.SECRETARIAT@xxxxxxxxxxxxxx'
        Subject: Summary of public comments on a draft GNSO Council
resolution to curb domain tasting

         

        Summary and analysis of public comments on a draft GNSO Council
resolution to curb domain tasting

         

         

        Comment period:  7 March 2008 - 28 March 2008

         

        Summary published: 31 March 2008

         

        Prepared by: Liz Gasster, Senior Policy Counselor, ICANN staff

         

        Background:  In spring 2007, the At Large Advisory Committee
(ALAC), asked the GNSO Council to review the subject of "domain
tasting". The term domain tasting refers to a case when someone
registers a domain name and then tests to see if the name has sufficient
traffic to provide more income than the annual registration fee (usually
through pay-per-click advertising). If the address is deemed profitable,
it is kept. If not, the current "add grace period" - where domains can
be returned within five days without cost - is used to return the domain
at no net cost to the registrant. There has been a significant increase
in the number of domains registered and returned and some are concerned
that the add-grace period represents a loophole that facilitates this
conduct. 

         

        In response to the ALAC's request, the GNSO Council requested
that ICANN staff prepare an issues paper for review and discussion. The
GNSO Council discussed the Issues Report
<http://gnso.icann.org/issues/domain-tasting/gnso-domain-tasting-report-
14jun07.pdf>  at ICANN's San Juan meeting in June 2007, and created a
working group to gather more information. The working group published an
Outcomes Report
<http://gnso.icann.org/drafts/gnso-domain-tasting-adhoc-outcomes-report-
final.pdf>   in October 2007 which suggested three terms of reference
for next steps, as follows:

        1.      Review and assess all the effects of domain tasting
activities that have been identified. 
        2.      Judge whether the overall effects justify measures to be
taken to impede domain tasting. 
        3.      If the answer to 2 is affirmative, then consider the
potential impacts of various measures on the Constituencies, and
recommend measures designed to impede domain tasting. 

         

        As a result of both reports, the GNSO Council decided on 31
October 2007 to launch a formal policy development process (PDP) into
domain tasting.  An Initial Report
<http://gnso.icann.org/issues/domain-tasting/gnso-initial-report-domain-
tasting-07jan08.pdf>  was produced for public comment, outlining the
policy development process, possible actions to be taken to curb domain
tasting including changes to the add grace period, and the impact of
potential measures on the GNSO constituencies. Public comments have been
incorporated into a draft Final Report,
http://www.gnso.icann.org/drafts/draft-final-report-domain-tasting-08feb
08.pdf (posted 8 February), which has been supplied to the GNSO Council
for its review and further action on the PDP. 

         

        Following the launch of the PDP, a small drafting group of the
GNSO Council drafted a motion that would restrict the applicability of
the AGP to a maximum of 50 deletes per registrar per month or 10% of
that registrar's net new monthly domain name registrations, whichever is
greater.  This proposal is the subject of this 21-day public comment
period.  The specific language of the draft motion is set forth in
Attachment I.

         

        Also on 31 October, the GNSO voted to encourage ICANN staff to
consider applying the annual fee to all registrations and staff is
pursuing incorporating this change in the context of the upcoming budget
proposal.  Subsequently, on 29 January 2008, the ICANN Board recommended
that ICANN charge the annual fee for all registrations. Though not
specifically solicited at this time, many of the comments received also
offered comments on this pending proposal.

         

        General comments:

         

        A total of 41 public comments were received during the public
comment period.  Of those, 15 were multiple postings by the same
individuals reinforcing previous points (many of which were also email
threads also posted to other lists). 

         

        22 of the 26 non-duplicative comments received agreed that steps
should be taken to curb domain tasting.  Four comments do not object to
domain tasting.  JE, GC, FVS, KT.  One comment (KT) emphasized the
importance of distinguishing between domain tasting and domain "kiting",
referred to by that commenter as "the re-registration of a domain name
by the same registrar when it is dropped..." 

         

        The 22 remaining comments reflect a plurality of views on the
best course of action that should be taken to reduce domain tasting.
Viewpoints coalesced around three of the options that have been most
widely discussed, as follows:

         

        1.      Nine comments support the pending draft motion to
prohibit gTLD operators from offering any refund to a registrar for any
domain names deleted during the AGP that exceed (i) 10% of that
registrar's net new registrations in that month (defined as total new
registrations less domains deleted during AGP), or (ii) fifty (50)
domain names, whichever is greater.  ED, Neustar, INTA, YAHOO, CADNA,
HL, eBAY, PayPal, Dell.  Several of these comments emphasize important
improvements that are needed, these are described further below.
Several of these comments suggest that they would prefer outright
elimination of the add grace period (INTA, eBAY, perhaps others), but
are supporting this option as an initial policy step to assess whether
it would be effective in significantly curbing domain tasting, before
pushing for tougher measures. 
        2.      Seven comments support elimination of the add grace
period entirely.  PS, AN, CM, DF, JW, TLDA, JT.  These comments have the
view that other measures, such as the approach contained in the proposed
motion, will not be effective in curbing domain tasting.  These comments
also take the view that the primary reason that registrars want to
preserve the AGP, such as to address typographical errors and other
registration mistakes, can be better addressed by implementing a "double
opt-in" purchase verification system.  These comments also cite the
ability of registrars to employ other more effective means to substitute
for reliance on the AGP, such as measures to detect fraud and other uses
identified by registrars.  One comment supports reducing the AGP to 24
hours.  IDOA. 
        3.      Four comments support the proposed change to the ICANN
budget that would charge the $.20 fee for all registrations.  PJ, JAW,
ICA, USCIB.  Two of these three comments raise concerns with other
options and view the budget option as an essential first step. USCIB
leaves open the possibility of supporting other options that might also
be effective in its view.  Two comments specifically object to the
option of revising the budget.  Neustar, CM 

         

        In addition, two comments objected to the draft motion but did
not voice support for any other options.  JA, JH

         

        Additional analysis:

         

        In addition to commenting on the threshold questions discussed
above, several comments raised important details that are noted below:

         

        *       Comments on "extraordinary circumstances" provision of
the pending draft motion.  Several comments voice concern that the
language would provide a loophole and be unenforceable.  ED, INTA, HL,
Dell.    INTA suggests adding an illustrative list of the types of
circumstances that would be considered "extraordinary".  
        *       Concerns about the need for stepped up enforcement.  DF,
JW, CADNA 
        *       There were specific recommendations to change certain
provisions in the draft motion, as follows: 

                *       In the clause that states:  "During any given
month, an Applicable gTLD Operator may not offer any refund to a
registrar for any domain names deleted during the AGP that exceed (i)
10% of that registrar's net new registrations in that month", change
"may not" to "shall not".  INTA, HL, Dell 
                *       Provide specific guidance as to the meaning of
"regularly" in paragraph 1.b of the motion, regarding the frequency of
circumstance that would not be considered extraordinary.  INTA, Dell 
                *       Require public disclosure of information that is
required to be reported by applicable gTLD operators.  INTA 
                *       Establish time frames for implementation.  INTA 

         

        Next Steps:  Staff will incorporate these comments, and any
updated constituency statements received, into a final report by 4 April
2008.  The GNSO Council will then review and consider these comments and
the final report. The Council is scheduled to consider the matter
further, including motions that may be drafted or updated prior to its
scheduled 17 April meeting.  

         

        Contributors, in order of first appearance (with abbreviation)
and number of postings if more than one:

         

        Paul Scheufler (PS)

        Eduardo Diaz (ED)

        John Erickson (JE)

        Pamela Jones (PJ)

        Jeff Neuman for Neustar (Neustar)

        Jack Avilar (JA) - 2 submissions

        Anon "domain tasting" (AN)

        James Walker (JAW)

        Chris McElroy (CM) - 4 submissions

        Gilbert Cheung (GC)

        Dominik Filipp (DF) - 6 submissions

        Jeff Williams (JW) - 5 submissions

        Claudio DiGangi for the International Trademark Association
(INTA)

        Karl Peters for TLDA (TLDA) - 2 submissions

        Freddy VanSant (FVS)

        J. Scott Evans for Yahoo (Yahoo)

        Karen Thompson (KT)

        Phil Corwin for the Internet Commerce Association (ICA)

        Jacob Hearst (JH)

        Joop Teernstra (JT)

        Philip Lodico for the Coalition Against Domain Name Abuse
(CADNA)

        Cameron Smith for Herbalife (HL)

        Matt Hooker for the Internet Domain Owners Association (IDOA)

        Susan Kawaguchi for PayPal (PayPal)

        Susan Kawaguchi for eBay (eBay)

        Christopher Martin for USCIB (USCIB) - [sent to ICANN staff,
should be posted]

         

        
        

        Attachment I - Resolution on domain tasting approved 6 March
2008

         

        Whereas, the GNSO Council has discussed the Issues Report on
Domain Tasting and the Final Outcomes Report of the ad hoc group on
Domain Tasting;

        Whereas, the GNSO Council resolved on 31 October 2007 to launch
a PDP on Domain Tasting;

        Whereas, the GNSO Council authorized on 17 January 2008 the
formation of a small design team to develop a plan for the deliberations
on the Domain Tasting PDP (the "Design Team"), the principal volunteers
to which had been members of the Ad Hoc Group on Domain Tasting and were
well-informed of both the Final Outcomes Report of the Ad Hoc Group on
Domain Tasting and the GNSO Initial Report on Domain Tasting
        (collectively with the Issues Report, the "Reports on Domain
Tasting");
        
        Whereas, the GNSO Council has received the Draft Final Report on
Domain Tasting;

        Whereas, PIR, the .org registry operator, has amended its
Registry Agreement to charge an Excess Deletion Fee; and both NeuStar,
the .biz registry operator, and Afilias, the .info registry operator,
are seeking amendments to their respective Registry Agreements to modify
the existing AGP;

        The GNSO Council recommends to the ICANN Board of Directors
that:

        1. The applicability of the Add Grace Period shall be restricted
for any gTLD which has implemented an AGP ("Applicable gTLD Operator").
Specifically, for each Applicable gTLD Operator:

        a. During any given month, an Applicable gTLD Operator may not
offer any refund to a registrar for any domain names deleted during the
AGP that exceed (i) 10% of that registrar's net new registrations in
that month
        (defined as total new registrations less domains deleted during
AGP), or (ii) fifty (50) domain names, whichever is greater.

        b. A Registrar may seek an exemption from the application of
such restriction in a specific month, upon the documented showing of
extraordinary circumstances. For any Registrar requesting such an
exemption, the Registrar must confirm in writing to the Registry
Operator how, at the time the names were deleted, these extraordinary
circumstances were not known, reasonably could not have been known, and
were outside of the Registrar's control. Acceptance of any exemption
will be at the sole reasonable discretion of the Registry Operator,
however "extraordinary circumstances" which reoccur regularly will not
be deemed extraordinary.

        c. In addition to all other reporting requirements to ICANN,
each Applicable gTLD Operator shall identify each Registrar that has
sought an exemption, along with a brief descriptive identification of
the type of extraordinary circumstance and the action (if any) that was
taken by the Applicable gTLD Operator.

        2. Implementation and execution of these recommendations shall
be monitored by the GNSO. Specifically;

        a. ICANN Staff shall analyze and report to the GNSO at six month
intervals for two years after implementation, until such time as the
GNSO resolves otherwise, with the goal of determining;

        i. How effectively and to what extent the policies have been
implemented and followed by Registries and Registrars, and

        ii. Whether or not modifications to these policies should be
considered by the GNSO as a result of the experiences gained during the
implementation and monitoring stages,

        b. The purpose of these monitoring and reporting requirements
are to allow the GNSO to determine when, if ever, these recommendations
and any ensuing policy require additional clarification or attention
based on the results of the reports prepared by ICANN Staff.