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

["Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx>]

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.