RE: [gnso-rap-dt] For your review - Nairobi presentation

[Margie Milam <Margie.Milam@xxxxxxxxx>]

Dear Greg,

The section you quote from the Issues Report relates specifically to Section 
4.2.3.   The Issues Report also addresses other ways in which the RAP work 
could be within scope of the GNSO's mandate.   For example, Section 7.1 of the 
Issues report,  provides that:

"In responding to the questions below, staff notes that this Issues Report 
discusses the broad topic of registration abuse, but no specific policy issue 
or question has been raised at this time. This Issues Report describes a 
variety of provisions that exist in relevant contracts and related documents. 
It is unclear from this research whether more uniformity might be necessary to 
facilitate the technical reliability, and/or operational stability of the 
Internet (see Section 8 - discussion of possible directions)."

This language suggests other ways that the RAP policy work might be in scope.   
 If for example, uniformity might be necessary to facilitate the technical 
reliability, and/or operational stability of the Internet,  this policy work 
could fall under Section 4.2.1 of the RAA, and analogous sections in the 
various Registry Agreements.   This was covered in my presentation during our 
working group discussions on scope.

The Issues Report clarifies that it is difficult to make definitive decisions 
about scope in the abstract, without an understanding of the specific types of 
policies that are under consideration.   As a result, we often find ourselves 
readdressing the scope issue at different stages of the PDP process, when there 
is more clarity on the types of policies that are likely to be adopted by the 
GNSO.

I hope this is helpful.   As Marika indicated,  I will be happy to review the 
consensus policy issue when the working group reconvenes to provide more 
guidance on the issue of scope.

All the best,
Margie

__________
Margie Milam
Senior Policy Counselor
ICANN
__________


From: owner-gnso-rap-dt@xxxxxxxxx [mailto:owner-gnso-rap-dt@xxxxxxxxx] On 
Behalf Of Greg Aaron
Sent: Monday, March 01, 2010 12:32 PM
To: Marika Konings; gnso-rap-dt@xxxxxxxxx
Subject: RE: [gnso-rap-dt] For your review - Nairobi presentation

Dear Marika et al:

Some factual corrections seem necessary:  The Issues Report said something 
wider than just regarding the registrar agreement.  And the issue is _not_  
"addressing the mis-use of domain name registrations."  The issue is addressing 
uses of domain names that are unrelated to any registration issues.  Those are 
different things.

The Issues Report said:  "In determining whether the issue is within the scope 
of the ICANN policy process and the scope of the GNSO, staff and the General 
Counsel's office have considered the following factors:  7.1 Whether the issue 
is within the scope of ICANN's mission statement ... Note, section 4.2.3 of the 
Registrar Accreditation Agreement between ICANN and accredited registrars 
provides for the establishment of new and revised consensus policies concerning 
the registration of domain names, including abuse in the registration of names, 
but policies involving the use of a domain name (unrelated to its registration) 
are outside the scope of policies that ICANN could enforce on registries and/or 
registrars.  The use of domain names may be taken into account when 
establishing or changing registration policies.  Thus, potential changes to 
existing contractual provisions related to abuse in the registration of names 
would be within scope of GNSO policy making. Consideration of new policies 
related to the use of a domain name unrelated to its registration would not be 
within scope."

This key concept/issue was the subject of much discussion over the months, and 
mention of it was missing from the first draft of the presentation I saw.  That 
seemed like a real omission to me as WG chair, and so I added a line to the 
deck in an attempt to summarize.  But condensing it has been a difficulty.  
Perhaps we should not try to condense it since it complex.  I have therefore 
inserted a new slide (slide 6 of the attached), quoting the above in full.

The above issue is also key because the RAPWG's Charter said: "the Working 
Group should define domain name registration abuse, as distinct from abuse 
arising solely from use of a domain name while it is registered. The Working 
Group should also identify which aspects of the subject of registration abuse 
are within ICANN's mission to address and which are within the set of topics on 
which ICANN may establish policies that are binding on gTLD registry operators 
and ICANN-accredited registrars."

Slide 8 (old slide 7) now says: "Doubts raised about whether ICANN has the 
power to force contracted parties to suspend domain names for malicious uses 
that are unrelated to any registration issues."  To me, that is consistent with 
both the Issues Report (quoted above), and doubts raised by some (not all) 
members of the RAPWG as per the Initial Report.  I am open to suggestions here, 
but deleting doesn't seem to be a good solution to me personally.  It's not 
good to paper over the existence of a major unresolved issue or disagreement; 
WGs are supposed to lay those bare.

All best,
--Greg



________________________________
From: Marika Konings [mailto:marika.konings@xxxxxxxxx]
Sent: Monday, March 01, 2010 10:15 AM
To: gnso-rap-dt@xxxxxxxxx
Subject: FW: [gnso-rap-dt] For your review - Nairobi presentation

Dear All,

In light of the recent exchange of emails in relation to chapter 7 of the 
Issues Report 'Is this issue in scope of GNSO Policy Making', please note that 
the sentence 'Consideration of new policies related to the use of a domain name 
unrelated to its registration would not be within scope' on page 42 
specifically relates to section 4.2.3 of the Registrar Accreditation Agreement.

There may be other provisions in registry/registrar agreements that would allow 
for addressing the mis-use of domains. Margie provided a presentation on GNSO 
scope and consensus policies to the Working Group some time ago (see 
presentation attached) and she's happy, once the WG resumes its meetings, to 
refresh everyone's mind in relation to this presentation and narrow in on those 
other provisions that might allow for addressing the mis-use of domain name 
registrations.

In view of this, the group might want to consider removing the sentence 'These 
are largely out of scope for policy-making' from slide 5 and taking out the 
last bullet on slide 7 'Doubts about whether ICANN has the power to force 
contracted parties to suspend domain names for malicious uses'.

With best regards,

Marika

------ Forwarded Message
From: Greg Aaron <gaaron@xxxxxxxxxxxx>
Date: Fri, 26 Feb 2010 15:18:41 -0800
To: Mike Rodenbaugh <icann@xxxxxxxxxxxxxx>, "gnso-rap-dt@xxxxxxxxx" 
<gnso-rap-dt@xxxxxxxxx>
Subject: RE: [gnso-rap-dt] For your review - Nairobi presentation

Or, using wordings in the Issues Report, it could say, "Staff and the General 
Counsel's office stated in Issues report: 'Policies involving the use of a 
domain name (unrelated to its registration) are outside the scope of policies 
that ICANN could enforce on registries and/or registrars.'"

All best,
--Greg

________________________________

From: Greg Aaron [mailto:gaaron@xxxxxxxxxxxx]
Sent: Thursday, February 25, 2010 3:44 PM
To: 'icann@xxxxxxxxxxxxxx<icann@xxxxxxxxxxxxxx>'; 
'gnso-rap-dt@xxxxxxxxx<gnso-rap-dt@xxxxxxxxx>'
Subject: RE: [gnso-rap-dt] For your review - Nairobi presentation

Dear Mike:

Slide 5 reflected what the ICANN General Counsel said.  If clarification is 
needed, the slide could say: "ICANN General Counsel states: "Policies involving 
the use of a domain name (unrelated to its registration) are outside the scope 
of policies that ICANN could enforce on registries and/or registrars."

Your argument seems to be that UDRP is a precedent or example of how ICANN has 
power to regulate any or all domain name use.  Is that correct?

Regarding your other point: I think you are referring to slide 6, which says at 
the bottom: "Doubts about whether ICANN has the power to force contracted 
parties to suspend domain names for malicious uses."  A statement of fact - 
doubts exist, as per the initial report and the discussions over the months.  
My assumption is that the Council members will read the report, which contains 
the richer background, attributions, etc.

All best,
--Greg






________________________________

From: Mike Rodenbaugh [mailto:icann@xxxxxxxxxxxxxx]
Sent: Wednesday, February 24, 2010 8:29 PM
To: gnso-rap-dt@xxxxxxxxx
Subject: RE: [gnso-rap-dt] For your review - Nairobi presentation

I have strong disagreement with the last sentence in 3d bullet of slide 5 - 
ignores contract language and UDRP, should be deleted:
*         Use issues concern what a registrant does with the domain after it 
has been created, or the services the registrant operates on the domain. These 
are largely out of scope for policy-making.

Similar disagreement with last bullet of slide 7, should say "Some contracting 
parties have doubts..."

Otherwise looks good, thanks.


Mike Rodenbaugh
RODENBAUGH LAW
tel/fax:  +1 (415) 738-8087
http://rodenbaugh.com <http://rodenbaugh.com/>


From: owner-gnso-rap-dt@xxxxxxxxx [mailto:owner-gnso-rap-dt@xxxxxxxxx] On 
Behalf Of Marika Konings
Sent: Wednesday, February 24, 2010 2:22 AM
To: gnso-rap-dt@xxxxxxxxx
Subject: [gnso-rap-dt] For your review - Nairobi presentation

Dear All,

Please find attached for your review the proposed presentation for the 
Registration Abuse Policies Information Session at the ICANN meeting in Nairobi.

The meeting will take place on Wednesday 10 March from 16.00 - 17.30 local time 
(13.00 - 14.30 UTC) in room Tsavo A. For further details, see 
http://nbo.icann.org/node/8878.

Please provide your comments / edits to the mailing list by Tuesday 2 March at 
the latest.

Thanks,

Marika


------ End of Forwarded Message