Summary and analysis of public comments for Registration Abuse Policies Initial Report

[Marika Konings <marika.konings@xxxxxxxxx>]

Disclaimer: This summary is not a full and complete recitation of the relevant 
comments received. It is an attempt to capture in broad terms the nature and
scope of the comments. This summary has been prepared in an effort to highlight 
key elements of these submissions in an abbreviated format, not to replace
them. Every effort has been made to avoid mischaracterizations and to present 
fairly the views provided. Any failure to do so is unintentional. The comments
may be viewed in their entirety at 
http://forum.icann.org/lists/rap-initial-report/.

Summary and analysis of public comments for Registration Abuse Policies Initial 
Report

Comment period ended: 28 March 2010

Summary published: 2 April 2010

Prepared by: Marika Konings, Policy Director

I.              BACKGROUND

On 25 September 2008, the GNSO Council adopted a motion requesting an issues 
report on registration abuse provisions in registry-registrar agreements. The
issues report was submitted to the GNSO Council on 29 October 2008 and provides 
an overview of existing provisions in registry-registrar agreements relating to
abuse and includes a number of recommended next steps. In December 2009, the 
GNSO Council agreed to charter a Working Group to investigate the open issues
identified in Registration Abuse Policies report, before deciding on whether or 
not to initiate a Policy Development Process (PDP). A Registration Abuse 
Policies Working Group (RAPWG) was chartered in February 2009 and published its 
Initial Report on 12 February 2010.

II.             COMMENTS and CONTRIBUTIONS

Eleven (11) community submissions have been made to the public comment forum. 
The contributors are listed below in alphabetical order (with relevant initials 
noted in parentheses):

Blacknight by Michele Neylon (BN)
Coalition Against Domain Name Abuse by Yvette Wojciechowski (CADNA)
Coalition for Online Accountability by Steve Metalitz (COA)
Commercial & Business User Constituency by Steve DelBianco (CBUC)
Intellectual Property Constituency by Paul McGrady (IPC)
George Kirikos (GK)
GoDaddy.com by James Bladel (GD)
Internet Commerce Association by Philip S. Corwin (ICA)
Registrar Stakeholder Group by Clarke D. Walton (RrSG)
Registry Stakeholder Group by David W. Maher (RySG)
World Intellectual Property Organization by Eric Wilbers (WIPO)

III.           SUMMARY & ANALYSIS

General Comments

GK is of the opinion that the WG was ‘captured and was driven by special 
interests with their own agenda’.

As a general comment, CADNA notes the importance of ‘consistency across 
different entities’ as the only way to ‘effectively manage the Internet is by
enforcing certain uniform practices that are designed to protect Internet users 
around the world, such as best practices and reporting requirements’.

The IPC supports the RAPWG recommendations ‘which received unanimous consensus, 
rough consensus and/or strong support’ and provides a number of alternative
recommendations for consideration (see below).

Scope & Definition

In relation to scope, the RySG is of the opinion that ‘the RAPWG did not 
present any issue that might be construed as requiring uniform or coordinated
resolution reasonably necessary to facilitate the interoperability, security 
and/or stability of the Internet or DNS’ which would make it fall within
ICANN’s scope. The RySG emphasized that ‘it is essential for ICANN to restrict 
its activities to its limited technical coordination mission’. It furthermore
agrees that making the distinction between registration abuse and domain name 
use abuse is important and supports the view that ‘domain name uses unrelated
to registration issues are largely outside the scope of policy-making’.

In relation to fighting abuse on the Internet, GD notes that ‘ICANN plays an 
important role in these efforts, but as a cooperative stakeholder and not a
regulator of anti-abuse activities’ and recognized the ‘clear limitations to 
the scope of ICANN’s policy development, which do not include the manner in
which a domain name is used, or even if it Is used at all’. As a result, GD 
recommends that the WG ‘avoid advancing any recommendations that lie outside
the purview of ICANN’s existing contractual relationships’.

ICA agrees in general with the RAPWG’s consensus definition of abuse. In 
addition, it notes that it is ‘critically important to differentiate between
registration and other domain abuses that are properly within the purview of 
ICANN policymaking versus illegal and illegitimate uses of domains that are
outside that scope and within the jurisdiction of national governments and 
international organizations’.

The RrSG recommends that ‘the RAP WG should determine where ICANN’s 
policy-making boundaries extend with respect to registration abuse issues and
use issues’ as it believes that the RAPWG ‘considered a variety of domain name 
“use issues” that are outside ICANN’s mission and policy-making boundaries”
such as gripe sites and malicious use of domain names.

The CBUC agrees ‘with the definition as stated in the Initial Report’. In 
relation to distinguishing registration abuse vs. domain name use abuse, it
proposes to ‘resolve this debate with the GNSO Council, other Constituencies, 
and ICANN staff as appropriate’ and ‘enhance the section of the Initial Report
to define this as a recommendation slot and denote the consensus outcome by RAP 
WG members’. The CBUC stated that ‘A domain name cannot be used unless it is 
registered; therefore any abuse of a registered name is registration abuse.’

Cybersquatting

WIPO’s comments focus on the cybersquatting recommendation contained in the 
Initial Report to initiate a policy development process to investigate the
current state of the UDRP, and consider revisions to address cybersquatting if 
appropriate. WIPO notes that ‘the issue is not whether the UDRP itself can be
improved, but rather whether a process of this nature is likely to achieve such 
result’. It furthermore finds that ‘the basis for including the UDRP in the RAP
WG initial report, especially against the background of ICANN’s new gTLD 
Program is unclear’ and notes that ‘discussions occurring within the context of
ICANN’s New gTLD Program would seem to already address the “Cybersquatting 
Recommendation”.’ In conclusion, WIPO is of the opinion that ‘rather than
seeking to amend the time-tested UDRP, independent focus on meaningful 
complementary mechanisms may yield more practical results’.

The RySG expresses its support for the cybersquatting recommendation to 
initiate a policy development process to investigate the current state of the
UDRP and strongly rejects the second cybersquatting recommendation to initiate 
a policy development process on other right protection mechanisms and provides
a number of reasons why it is inadvisable to consider the imposition of 
evolving rights protection mechanisms in existing TLDs.

GD offers cautious support to the cybersquatting recommendation to initiate a 
policy development process to investigate the current state of the UDRP which
is contingent on including ‘a comprehensive review of the UDRP, including how 
ICANN manages the procedures of UDRP providers, and the development of a formal
procedure to oversee the modification of their supplemental rules’.

In relation to Rights Protection Mechanisms (RPMs), GD is of the opinion that 
‘any recommendations from the RAP for policy work in this area must await some
degree of practical experience with their effectiveness in new gTLDs’.

GK disagrees with the recommendation that the UDRP should be revisited as ‘this 
appears to be a biased recommendation, in favour of complainants who already
overwhelmingly win at UDRP’. In GK’s opinion, if UDRP is revisited, it should 
be ‘to address reverse domain name hijacking by complainants who misuse the
system’. In GK’s view, the RAPWG ‘overstepped its bounds and scope, as 
cybersquatting goes into domain name “use”, and is not a “registration” issue’.

BN notes that ‘a review of the UDRP process as a whole would not be welcome’, 
but adds that ‘any review of the UDRP should be balanced’ and based on actual
data.

CADNA supports the RAPWG recommendation to review the UDRP and notes that ‘the 
UDRP only exists as a reactive, rather than a proactive means of combating
cybersquatting. It also suggests the RAPWG considers ‘recommending that a PDP 
work to develop an initiative to create a mechanism to prevent cybersquatting
before cybercriminals can register infringing domain names’. CADNA considers 
the recommendation to investigate how RPMs can be applied to the current gTLD
space premature.

ICA supports the recommendation to initiate a PDP on the UDRP, but ‘only if 
such PDP is broadly comprehensive’. In addition, ICA does not have an objection
to initiate a PDP on RPMs, but ‘believe that this effort, if undertaken, should 
be coordinated with the comprehensive UDRP PDP’ as noted before. In addition,
it supports that ‘any PDP on comprehensive UDRP reform consider the 
establishment of a “cure period” for minor, transient, and unintentional
infringement caused by third party placement of PPC advertising links’.

In the view of the RrSG, ‘it is premature to initiate a policy development 
process to consider how rights protection mechanisms developed in the new gTLD
program can be applied to cybersquatting in the existing gTLD space.

The IPC supports the alternative recommendation to initiate a PDP on RPMs.

The CBUC supports the recommendation on the initiation of a PDP on the review 
of the UDRP as stated in the Initial Report. In relation to the second
recommendation on RPMs, it supports view A (recommending the initiation of a 
PDP on RPMs), ‘noting that this recommendation is near evenly divided among the
RAP WG’.

Front Running

GK disagrees with the proposed recommendation and puts forward a number of 
preventative measures for consideration.

BN agrees that ‘without any evidence any further discussion on this topic is a 
waste of time and resources.

CADNA was ‘disappointed to see that the RAPWG refrained from recommending 
action to solve […] front running’ and recommends to ‘actively investigate and
seek out the root’.

The CBUC supports the recommendations made by the RAPWG in relation to this 
issue.

Gripe Sites; Deceptive, and/or Offensive Domain Names

The RySG supports the majority position of the RAPWG and provides a number of 
reasons why it supports this position.

GK considers this issue out of scope and should not have been considered by the 
Working Group. He adds that ‘ICANN is not and should not be the global court, 
police, law maker, judge and jury’.

BN is of the opinion that ‘any criteria that would prevent registrants from 
registering domain names on the basis of causing possible offence would be a
danger to […] freedom of expression’ and notes that ‘this has nothing to do 
with the actual domain registration and is therefore out of this group’s
scope’. Furthermore, he notes that ‘if a brand owner has an issue with a domain 
name they have the UDRP and the courts to address such matters’.

The IPC proposes the following alternative recommendations for consideration by 
the RAPWG:

‘(1) Given that the protection of children is a paramount policy concern of all 
members of the ICANN community, the RAPWG recommends the initiation of a Policy
Development Process by requesting an Issues Report to investigate the most 
effective means to prevent registration of, or promptly cancel, deceptive
domain names which mislead children to objectionable sites.

(2) ICANN’s agreements with registries and registrars should explicitly state 
that registries and registrars are explicitly empowered, but not obligated, to
develop reasonable policies, internal to each contracted party, designed to 
prevent the registration of deceptive or offensive strings’.

In relation to recommendation 1, The CBUC ‘takes note of the minimal support by 
RAP members’ for view B, but recommends that ‘view A be stricken as an option
and modified where view B is presented as a viable solution to address 
inconsistencies of UDRP rulings regarding Gripe Sites’.

In relation to recommendation 2, the CBUC ‘supports the recommendation of View 
A acknowledging the rough consensus among the RAP Team, noting that ‘if R1 –
View B were addressed above, this will create a clear path for consistency to 
develop and negate this recommendation’.

Fake Renewal Notices

The RySG notes that this may be an issue with resellers but also notes that 
‘registrars are responsible for the registration activities performed by their 
resellers’.

GK considers ‘better education the obvious solution, as well as better security 
at registrars’.

BN supports the RAPWG recommendation and notes it ‘would welcome any actions or 
proposals to address this that ICANN might develop’.

ICA supports ‘referring the issue of fake renewal notices to ICANN’s Compliance 
Department as well as the initiation of a PDP on this subject, and urge that it 
include a focus on the continuing problem of domain theft’.

In relation to recommendation 1, the CBUC ‘takes notice to the strong consensus 
and supports view A’. In addition, it notes that ‘the issue of “slamming” 
should be further explored and perhaps separated as a standalone topic’.

The CBUC supports recommendation 2.

Domain Kiting / Tasting

GK agrees that this is no longer an issue ‘given that the AGP loophole was 
removed’.

The CBUC supports the recommendation as proposed by the RAPWG.

Malicious Use of Domain Names

The RySG supports the recommendation for ‘the creation of non-binding best 
practices to help registrars and registries address the illicit use of domain
names’ and provides a number of reasons why it supports this recommendations 
such as its view that one-size-fits-all solutions will not be applicable or
effective due to the different issues different registries face. The RySG does 
recognize that there are registrars that ‘do a poor job of responding to abuse
reports’ and suggests that ‘ICANN focus efforts on registrars who do not comply 
with their contractual obligations’. Furthermore, the RySG feels that ‘key
issues concerning the illicit or criminal use of domain names are outside of 
ICANN’s purview, and beyond the scope of GNSO policy-making’.

GK also notes that this issue ‘was out of scope of the ‘registration aspect of 
the workgroup’, but adds that ‘there’s nothing stopping the community from
developing these “best practices” without ICANN’s involvement’.

BN also supports the recommendation to develop non-binding practices, but 
strongly opposes ‘any attempts to make such practices mandatory’.

CADNA supports the alternative view described in the report as it considers 
‘the recommendation of the creation of non-binding best practices […] too soft
to ensure that registrars and registries actually comply and work to eliminate 
the malicious use of domain names’.

ICA supports ‘the development of nonbinding best practices to assist contracted 
parties in addressing malicious domain use, including a focus on account
security management and identification of stolen credentials that are 
associated with domain theft’.

The CBUC supports the unanimous consensus recommendation made by the RAPWG.

Whois Access

The RySG supports the two recommendations.

In relation to Whois, GK notes throughout his comments that verified Whois is 
the real solution to many of the issues discussed in the report. In addition,
he adds that ‘some registrars continue to not provide port 43 access’ or block 
residential IP addresses and recommends ‘a Whois archive that is comparable to
the TM document retrieval system’, in addition to moving to thick Whois for all 
gTLDs.

BN supports that ‘the current system and requirements for registrars to give 
everyone access needs to be revised to take into consideration such abuse and
its negative impact on registrants’. BN also notes that ‘many registrars either 
do not have functioning WHOIS servers or have blocked access to port 43 in such
a manner as to give the impression that the WHOIS server does not exist’.

CADNA supports the RAPWG recommendations in relation to Whois access.

ICA supports ‘additional research and processes to ensure that WHOIS data is 
accessible, and urge a focus on fraudulent registrations that may be associated
with domain theft’.

The IPC proposes the following alternative recommendations for consideration by 
the RAPWG:

‘(1) The RAPWG recommends the initiation of a Policy Development Process by 
requesting an Issues Report to investigate the connection, if any, between
privacy and/or proxy services and registration abuses.

(2) The RAPWG recommends the initiation of a Policy Development Process by 
requesting an Issues Report to investigate the possibility of (a) developing
best practices for privacy and/or proxy services to prevent and address 
registration abuses and (b) developing an accreditation and compliance program
to enforce any such best practices’.

The CBUC supports the recommendations made by the RAPWG in relation to this 
topic.

Uniformity of Contracts

The RySG is of the opinion that ‘the GNSO should be highly skeptical of the 
proposed PDP’ as ‘it would pursue an undefined problem’ and urges therefore the
GNSO Council to reject this recommendation.

GD is of the opinion that requiring uniformity in registry and registrar 
agreements with regard to abuse would have negative impacts on innovation,
competition, and the problem of abuse itself and provides a number of 
supporting arguments.

GK states that in his view ‘this appears to be another attempt to compel 
creation of “abuse policies” in every agreement, that go far and above common
legal standards’. He adds that ‘most abuse happens due to anonymity and 
throwaway domains by cybercriminal’, hence the need to focus on verified Whois.

CADNA supports the recommendations of the RAPWG in relation to uniformity of 
contracts.

The RrSG ‘opposes creation of an Issues Report to evaluate whether a minimum 
baseline of registration abuse provisions is necessary’ as ‘all registries,
registrars, and registrants are already contractually obligated to abide by 
ICANN policies, notably existing or new Consensus Policies’, with the PDP being
a ‘mechanism specifically designed to create uniformity where it is needed’. 
Instead, the RrSG ‘supports consideration of possible abuse contact best
practices’.

The CBUC supports view A, ‘noting that this recommendation shows strong support 
among the RAP WG’.

Uniformity of Reporting

GK adds that ‘there should be XML documents and maybe even APIs, so that 
reporting and reuse of data can be simplified’.

BN highlights the need for standardization and simplification of abuse reports.

CADNA supports the recommendations of the RAPWG in relation to uniformity of 
reporting.

The CBUC supports the recommendation made by the RAPWG in relation to this 
topic.

Collection of Best Practices

GK expresses his concern in relation to the ‘funding requirement’. He notes 
that ‘ICANN needs to be focusing on a narrow technical role, instead of
engaging in mission creep’.

CADNA supports the recommendations of the RAPWG in relation to collection of 
best practices.

COA supports ‘the general recommendation that ICANN should do more to promote 
their development and dissemination, including “structured, funded mechanisms
for the collection and maintenance of best practices”’.

The CBUC supports the recommendation made by the RAPWG in relation to this 
topic.

IV.           NEXT STEPS

The RAPWG will review in detail all the comments received and determine if and 
how its report should be updated before being submitted to the GNSO Council for
its consideration.


------ End of Forwarded Message


------ End of Forwarded Message