RE: [gnso-irtp-b-jun09] Recommended Modifications to the Latest ERTP Recommendation

["James M. Bladel" <jbladel@xxxxxxxxxxx>]

Team:


I've been reluctant to comment on some of the ETRP changes thus far, due
to my desire to get more feedback via Public Comment.  But I do have
concerns about the direction we're headed with this proposal, and I
think it would be prudent for us to be thinking of a fall-back position,
in the event that we receive significant push-back from the community.

In short, I think we should consider going forward with an alternate
version that doesn't include a means to dispute the ETRP.  I say this
with full acknowledgment to the problems that Michael, Kevin, Barbara
and others have identified, and the efforts of the Working Group to
address them.  But the "ETRP Dispute" contains some fundamental flaws
that could derail our entire proposal.

Essentially, the ETRP Dispute broadens the proposed policy from its
narrow goal of reversing transfers, and puts Registries and Registrars
in the position of adjudicating ownership / control issues.  In my
opinion, this is an issue that cannot be resolved by ICANN policy, nor
should it.  Genuine disputes must be resolved by outside arbitration
(e.g. UDRP) or an appropriate court.  It may seem unbalanced, but in
order to prevent a ping-pong situation from developing, someone has to
give up their racket. 

Throughout this process, we've worked hard to build support amongst
those stakeholders who are most likely to oppose ETRP in any form.  But
I'm afraid that some of these changes will erode that support and the
momentum that we've created on this issue. So, I think a fall-back
version that doesn't include the ETRP Dispute section would be a good
contingency plan.


Thanks--



J.




-------- Original Message --------
Subject: Re: [gnso-irtp-b-jun09] Recommended Modifications to the
Latest ERTP Recommendation
From: "Mike O'Connor" <mike@xxxxxxxxxx>
Date: Fri, May 21, 2010 10:20 am
To: Michael Collins <mc@xxxxxxxxxxxxxxxxx>
Cc: "'Steele, Barbara'" <BSteele@xxxxxxxxxxxx>, "'IRTP B Mailing
List'" <Gnso-irtp-b-jun09@xxxxxxxxx>

Michael and Barbara,

many thanks to both of you for this discussion -- i'm comfortable with
where the two are you are headed, so you've got my vote to go ahead and
drive this last round of changes in Michael.


mikey



On May 19, 2010, at 4:19 PM, Michael Collins wrote:

Hi Barbara and all,
 
Thank you for your work on this. It is good to remove erroneous
assumptions about TDRP from ETRP. I am disappointed that the TDRP cannot
be used to resolve a potential dispute between registrars and their
customers that results in an ETRP. I am not sure that it is within our
mandate to suggest any changes to TDRP, though it does not seem to work
well in practice according to some members of our group.
 
It was my desire for the domain to stay in the control of PTRa during a
dispute. However, if we are going to accept that a claim of hijacking
(ETRP) is cause to reverse a transfer, we should accept that a claim
that an ETRP was filed in error (Disputed ETRP) as cause to restore a
transfer, not just when PTRa agrees. PTRa should not be put in the place
of deciding a dispute between PTRa and the gaining Registrar. Both
claims (ETRP and Disputed ETRP) must present the same level of
explanation, identification and indemnification and lacking any dispute
resolution mechanism should be treated with equal actions.
 
It is my opinion that most hijackers will not want to reveal their
identity and indemnify their registrar, so most ETRPs caused by
hijacking will not result in a Disputed ETRP. PTRa could still file a
TDRP to resolve an ITRP dispute, but it would not get to decide the
dispute in a TDRP.
 
Would the group like to discuss this before I attempt to edit the
document to make these changes?
 
Best regards,
Michael Collins
 

 
From: owner-gnso-irtp-b-jun09@xxxxxxxxx
[mailto:owner-gnso-irtp-b-jun09@xxxxxxxxx] On Behalf Of Steele, Barbara
Sent: Wednesday, May 19, 2010 2:47 PM
To: IRTP B Mailing List
Subject: [gnso-irtp-b-jun09] Recommended Modifications to the Latest
ERTP Recommendation


 
All,
I have incorporated my recommended modifications into the latest version
of the document.  Because this proposed policy is intended to augment
existing policies, I have deleted the language relating to option to
dispute a disputed ERTPusing the TDRP.  Also, the registries will not
want to be in the middle of the communications that ensue between the
PTRa and the new Registrar should the new Registrar elect to dispute the
ERTP.  The registries would add little to no value in that activity.  To
the extent that the PTRa, upon receipt of a Disputed ERTP case from the
new Registrar, agrees that the domain name should not have been
transferred via the ETRP, then they would forward the Disputed TDRP to
the appropriate Registry Operator and the Registry Operator would
restore the domain name to the new Registrar within 5 days (I changed
this from 30 days as the IRTP calls for the following in Part A, Section
6:
“The Registry Operator must undo the transfer within five (5) calendar
days of receipt of the notice except in the case of a Registry dispute
decision, in which case the Registry Operator must undo the transfer
within fourteen calendar days unless a court action is filed. The notice
required shall be one of the following:
i. Agreement of the Registrar of Record and the Gaining Registrar sent
by email, letter or fax that the transfer was made by mistake or was
otherwise not in accordance with the procedures set forth in this
policy;
ii. The final determination of a dispute resolution body having
jurisdiction over the transfer; or
iii. Order of a court having jurisdiction over the transfer.”
Please let me know if any of my recommended edits do not make sense. 
Many thanks.
<<...>>
Barbara Steele
Compliance Officer / Director of Policy
VerSign, Inc.




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