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Comment Close
Date		Statement
Name 

Status

Assignee(s) and
RALO(s)

Call for
Comments		Call for
Comments
Close 		Vote
Announcement 		Vote OpenVote
Reminder		Vote CloseDate of SubmissionStaff Contact and EmailStatement Number
23.10.2013Revised Public Interest Commitments Dispute Resolution Procedure (PICDRP)

Adopted
12Y, 0N, 1A 

Alan Greenberg (NARALO)

30.10.201306.11.201307.11.201307.11.201311.11.201312.11.201313.11.2013Krista Papac
krista.papac@icann.org 		AL-ALAC-ST-1113-02-00-EN
Comment / Reply Periods (*)
Comment Open Date: 
2 October 2013
Comment Close Date: 
23 October 2013 - 23:59 UTC
Reply Open Date: 
24 October 2013
Reply Close Date: 
14 November 2013 - 23:59 UTC
Important Information Links
Public Comment Announcement
To Submit Your Comments (Forum)
View Comments Submitted
Brief Overview
Originating Organization: 
ICANN
Categories/Tags: 
  • Top-Level Domains
Purpose (Brief): 
Seeking comments on the Revised Public Interest Commitments Dispute Resolution Procedure
Current Status: 
Awaiting comments
Next Steps: 
Review public comments and revise if necessary
Staff Contact: 
Krista Papac
Email Staff Contact
Detailed Information
Section I: Description, Explanation, and Purpose: 

As previously reported, a dispute resolution procedure will be put in place to address complaints that a Registry in the New gTLD Program may not be complying with the Public Interest Commitment(s) in Specification 11 of their Registry Agreement with ICANN. A draft procedure was published in draft form on 15 March 2013. A variety of feedback was provided, including comments submitted through public comment forum. ICANN has considered the input received and has created a Revised PICDRP [PDF, 209 KB] that is being published for comment.

Section II: Background: 
Specification 11 in potentially over 500 new gTLD Registry Agreements will have voluntary Public Interest Commitments that the Registry has made and with which the Registry has agreed to comply. Specification 11 will also have mandatory Public Interest Commitments that the Registry must comply with in all new gTLDRegistry Agreements. To effectively and efficiently resolve any issues that might arise regarding non-compliance with a Registry’s Public Interest Commitments, ICANN Contractual Compliance will administer the PICDRP.
Section III: Document and Resource Links: 
Section IV: Additional Information: 
Comments submitted during the previous public comment period have largely been addressed in this Revised PICDRP, including the request that ICANN itself ensured compliance with the PICDRP. ICANN notes that a couple of comments submitted in the public comment forum suggested that the standard of harm be changed from "measurable" to "material" and that the burden of proof be changed from "preponderance of evidence" to "clear and convincing evidence." ICANN has considered these requests in light of the nature of the obligations that are to be challenged under the PICDRP. We note that these specific issues were debated during the development of the Trademark Post-Delegation Dispute Resolution Procedure (Trademark PDDRP) and the Registry Restriction Dispute Resolution Procedure (RRDRP), and a distinction was made between the standards and burden of proof for the Trademark PDDRP as opposed to the RRDRP because of the obligations that those procedures were meant to address. As the Trademark PDDRP is intended to essentially address a pattern and practice of misconduct by the registry operator, the community discussion ultimately lead to a standard of harm and burden of proof higher than that for the RRDRP, in which the Registry Operator is being challenged for failing to comply with a commitment that it made in its Registry Agreement. Given that the PICDRP will also be challenging the Registry Operator's failure to comply with a commitment that it made in its Registry Agreement, it seems logical to adopt the same standard and burden of proof as found in the RRDRP. Accordingly, the standard of harm and burden of proof in the PICDRP will remain as stated in the version that was posted for public comment.

(*) Comments submitted after the posted Close Date/Time are not guaranteed to be considered in any final summary, analysis, reporting, or decision-making that takes place once this period lapses.

FINAL VERSION TO BE SUBMITTED IF RATIFIED

Please click here to download a copy of the PDF below.

 

FINAL DRAFT VERSION TO BE VOTED UPON BY THE ALAC

The ALAC appreciates the radical changes made to the PICDRP in response to the comments of the first draft. The process seems far more appropriate for addressing potential harms caused by a registry’s failure to honour the Public Interest Commitment aspects of their registry agreements. Placing contract enforcement within ICANN and the removing the need to pay for the privilege of reporting a contractual infringement sends a far better message regarding ICANN’s attitude towards contractual compliance. The ALAC particularly supports the concept of taking action against repeat registry offenders.

However, the ALAC still firmly believes that this process does not address the PUBLIC INTEREST aspect of Public Interest Commitments.

There must be a provision for allowing reports of PIC violations, and particularly substantive PIC violations without the need to demonstrate harm. Possible sources of such reports must include:

  • Governments on behalf of their citizens;
  • Applicable industry regulators, licensing bodies and similar organizations;
  • Consumer protection and similar organizations;
  • Registrants; and
  • Internet users.

A significant aspect of the PIC is to ensure registrant and Internet user trust in the TLD, and to disallow reports of the perceived loss of that trust greatly lessens the benefit of the PIC, and could serve to make them completely ineffective.

The ALAC understands that removing the need to demonstrate harm has the potential for increasing the number of reports that ICANN must respond to, and the ALAC is prepared to work with ICANN to develop reasonable controls to lessen the potential for ICANN devoting unreasonable efforts on addressing capricious or frivolous complaints. To address the need to reasonably limit the resources that ICANN must devote to such cases, it might be acceptable that a single registrant or user report does not trigger a full-blown investigation, but mechanisms must be put in place to ensure that patterns are recognized and swift action is taken if the very trust that the PIC is supposed to engender does not exist. Any such rules must err on the side of welcoming reports of PIC non-compliance, not rejecting them. ICANN has a past history of not being concerned with compliance-related complaints from individuals, and this MUST not be replicated with regard to PICs.

The ALAC understands and generally supports the level of flexibility that ICANN has built into this version of the PICDRP regarding penalties for PIC violations. However, to balance that and create a level of confidence that ICANN is taking the PICs seriously and that violations are not being treated lightly, there must be a high level of public reporting on the entire PIC reporting and enforcement process. Transparency is key to ensuring faith in the system; publication of PIC infractions would be a very effective method of encouraging registries to honour their PICs.

The ALAC also offers the following more specific comments on the terms within the PICDRP:

  • The use of the undefined term “good standing” is both vague and inappropriate. If there are criteria under which ICANN will decide to not follow up on a report, they must be clearly stated and subject to appeal.
  • There should be no requirement for interaction between a Reporter and Registry if the complaint issues identified in the report are factually identifiable; there is no need to negotiate evidence-based issues.
  • Although perhaps obvious to some, it should be explicit that the Standing Panel will include one or more members with clear understanding of Public Interest issues.

Although this document is specifically on the process by which ICANN will address third-party reports on PIC violations, it is essential that ICANN makes it clear that ICANN may as well choose to take action against PIC violations purely on its own accord.

FIRST DRAFT SUBMITTED

AG Comment: After hearing the comments regarding the new DRP draft and before I actually read it, I was expecting to see a document that had some minor changes from the earlier version. Instead I found a completely new process that bore virtually no resemblance to the earlier one. The requirement to demonstrate harm is still there, and that forms the basis for this comment. But the process has been largely brought in-house, with no dispute process provider and no fees, and as such is MUCH more amenable to addressing our concern for enforcing the PUBLIC INTEREST part of Public Interest commitments.

ALAC Statement on the Revised Public Interest Commitments Dispute Resolution Procedure (PICDRP)

The ALAC appreciates the radical changes made to the PICDRP in response to the comments of the first draft. The process seems far more appropriate for addressing potential harms caused by a registry’s failure to honour the Public Interest Commitment aspects of their registry agreements. The ALAC particularly supports the concept of taking action against repeat offenders.

However, the ALAC still firmly believes that there must be a mechanism for ensuring PIC compliance even when the entity reporting the issue cannot demonstrate that it has suffered harm.

The ALAC understands that removing the need to demonstrate harm has the potential for unreasonably increasing the number of reports that ICANN must respond to, but to demand a demonstration of personal or corporate harm makes a mockery of the term PUBLIC INTEREST Commitment.

There must be a provision for allowing reports of PIC violations, and particularly substantive PIC violations without the need to demonstrate harm. Possible sources of such reports must include:

  • Governments on behalf of their citizens
  • Consumer protection and similar organizations
  • Registrants
  • Internet users

It is understood that opening the process to registrant and Internet users who have not been directly harmed has the potential for both large numbers of complaints and for frivolous complaints. However, a significant aspect of the PIC is to ensure registrant and Internet user TRUST in the TLD, and to disallow reports of the perceived loss of that trust greatly lessens the benefit of the PIC, and could serve to make them completely ineffective.

To address the need to reasonably limit the resources that ICANN must devote to such cases, it might be acceptable that a single registrant or user report does not trigger a full-blown investigation, but mechanisms must be put in place to ensure that patterns are recognized and swift action is taken if the very trust that the PIC is supposed to engender is not there.

The ALAC understands and generally supports the level of flexibility that ICANN has built into this version of the PICDRP regarding penalties for PIC violations. However, to balance that and create a level of confidence that ICANN is taking the PICs seriously and that violations are not being treated lightly, there must be a high level of public reporting on the entire PIC reporting and enforcement process. Transparency is key to ensuring faith in the system; publication of PIC infractions would be a very effective method of encouraging registries to honour their PICs.

Although this document is specifically on the process by which ICANN will address third-party reports on PIC violations, it is essential that ICANN makes it clear that ICANN may as well choose to take action against PIC violations purely on its own accord.

[I am tempted to compare PICs to public health regulations that restaurants are subject to. People do not have to get sick or die before a restaurant needs to correct their violations (although sickness or death is a fine way of being alerted to the problem). And in many jurisdictions, there are very prominent signs displayed in restaurants saying whether they meet public health requirements – a VERY strong incentive for not being cited for infractions. I contrast that to the position the Montreal took for many years; that one would not want to publicize infractions, because that could hurt the restaurant’s business!

Let me know if you think that this might be a good way to demonstrate our position.]

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12 Comments

  1. Evan Leibovitch

    In previous discussion, on this issue Carlton and I argued for a very brief, concise statement that rejected any PIC handling plan that did not welcome (let alone allow) third-party and non-financial interests to get involved. This statement does not reflect that indicated need for brevity and clarity and I would oppose it without significant modification.

    We also ought to stop being so gosh-darned apologetic in what we advance. If ICANN needs to allocate unanticipated resources to protect the public interest, then so be it; the body is not exactly cash-starved. Provisions in B.1.2 and B.1.3 of the revised process are still weighted heavily against whistleblowers, third-party advocates or even government consumer protection agencies. The lack of resources by a Reporter to engage in drawn-out "conference" with the target of their complaints MUST not be grounds to dismiss (as allowed in B.2.2, B.2.5, and B.3.1). Complaints based on factual misinformation, for example, do not require negotiation to resolve.

    In its existing Compliance efforts in enforcing accurate WHOIS, ICANN has demonstrated that it cannot (or refuses to) distinguish between "crank" complaints, self-interested process abuse, and legitimate large-scale research by advocates; there is no confidence that such discretion will be in evidence regarding the PIC system. Furthermore, if the actions of a registry result in a flood of complaints, these should be at least acknowledged rather than actively resisted – they may be indeed legitimate, a warning of something that needs to be fixed.

    Particularly, the concept of labelling Reporters as in good standing or bad, based on volume of previous reporting, is downright repulsive.

    Any recommendation from ALAC should contain the following prescriptions, clearly:

    1) Eliminate the concept of "good standiong/poor standing" in Reporters
    2) Eliminate the need to demonstrate direct (and already existing) harm
    3) Allow acceptance/investigation of evidence-based complaints without demanding negotiation
    4) Make explicit the membership of the Standing panels with expereince in public interest regulation
    5) Err on the side of welcoming public comment, not rejecting it

    If the biggest problem if developing a protocol to separate frivolous complaints from legitimate ones, let's deal with that – but as a general Compliance issue that addresses more than just PICs and extends to WHOIS accuracy complaints etc.

    It all boils down to "customer service". If  the end user is the customer, as Fadi claims, that must be the overriding mandate of this process.

  2. Alan Greenberg

    In previous discussion, on this issue Carlton and I argued for a very brief, concise statement that rejected any PIC handling plan that did not welcome (let alone allow) third-party and non-financial interests to get involved. This statement does not reflect that indicated need for brevity and clarity and I would oppose it without significant modification.

    It is admittedly not brief. I was hoping it was clear. The earlier statements really did not fully mesh with the newly published version which is radically different from the previous incarnation.

    We also ought to stop being so gosh-darned apologetic in what we advance. If ICANN needs to allocate unanticipated resources to protect the public interest, then so be it; the body is not exactly cash-starved. Provisions in B.1.2 and B.1.3 of the revised process are still weighted heavily against whistleblowers, third-party advocates or even government consumer protection agencies. The lack of resources by a Reporter to engage in drawn-out "conference" with the target of their complaints MUST not be grounds to dismiss (as allowed in B.2.2, B.2.5, and B.3.1). Complaints based on factual misinformation, for example, do not require negotiation to resolve.

    My intent was not to be apologetic, but to address what might be the push-back head-on and say why we think it does not apply. Perhaps it is a matter of style.

    One of you notes asked how many complaints would be needed before action is taken, so I accepted that as a tacit agreement that a single individual complaint might not start an investigation.

    Regarding B.1.2 and B.1.3, I don't believe that I was proposing that these terms would all apply. If you think that we need to say that rules other than the "harm" one, we should do so.

    In its existing Compliance efforts in enforcing accurate WHOIS, ICANN has demonstrated that it cannot (or refuses to) distinguish between "crank" complaints, self-interested process abuse, and legitimate large-scale research by advocates; there is no confidence that such discretion will be in evidence regarding the PIC system. Furthermore, if the actions of a registry result in a flood of complaints, these should be at least acknowledged rather than actively resisted – they may be indeed legitimate, a warning of something that needs to be fixed.

    Particularly, the concept of labelling Reporters as in good standing or bad, based on volume of previous reporting, is downright repulsive.

    I too have some concern with how the WHOIS problem reporting will play out, but the rules proposed here do not seem to be that onerous and in particular do not penalize a reporter based on volume, just volume of failed reports. However, I think that this is a topic to critique when ICANN publishes the criteria for true Public Interest reports.

     

    Any recommendation from ALAC should contain the following prescriptions, clearly:

    1) Eliminate the concept of "good standiong/poor standing" in Reporters

    Other commenters have suggested eliminating the reference to "good standing" and in fact it is only used one in the specification, and never defined.

    2) Eliminate the need to demonstrate direct (and already existing) harm

    I thought I made that the main point of the statement. Is it not sufficiently clear?

    3) Allow acceptance/investigation of evidence-based complaints without demanding negotiation

    Good point.

    4) Make explicit the membership of the Standing panels with expereince in public interest regulation

    There is only one Panel, but good point.

    5) Err on the side of welcoming public comment, not rejecting it

    Certainly.

    If the biggest problem if developing a protocol to separate frivolous complaints from legitimate ones, let's deal with that – but as a general Compliance issue that addresses more than just PICs and extends to WHOIS accuracy complaints etc.

    It all boils down to "customer service". If  the end user is the customer, as Fadi claims, that must be the overriding mandate of this process.

    I agree that the problem is a larger one than just PICs, and we can mention that, but I would not want to tie fixing this problem in principle to the larger customer service problem.

     

  3. Rinalia Abdul Rahim

    I agree with Evan's prescriptions.  The PICDRP must allow for third party and non-financial interest whistleblowing without high intervention barriers. I also agree that the ALAC must not be apologetic about outlining a desired standard that serves the public interest.

    Alan, can you attempt a re-draft incorporating Evan's points?

    Rinalia

    1. Alan Greenberg

      I have discussed this (exhaustively) with Evan and will redraft tomorrow to try to make the points clearer and include those that Evan suggested that I had missed.

       

  4. Holly Raiche

    I agree with Evan and Rinalia.  Alan - when you have time.

    As to separating out frivilous complaints - in most complaint processes I have seen, it is left up to the body handling complaints, with a general power such as not handling frivilous or vexatious complaints.  Often that comes with an appeal against that ruling, so that there are at least two sets of judgment on whether there is merit to the complaint.

     

  5. Evan Leibovitch

    I like and support the final draft.

    1. Alan Greenberg

      (smile)

  6. Carlton Samuels

    I still don't like the business of equating "Reporters" and "Registry Operators" in applying this "repeat offenders" status. Common cranks shall always be with us. But to suggest that they have the same impact -or even objective as the statement suggests - is over the top.

    1. Alan Greenberg

      Carlton, can you explain further.

      Other than using the same descriptor (repeat offender), the criteria and the implications of being found to be repeat offender are completely different.

      The only reference in our statement is at the end of the first paragraph where it says "The ALAC particularly supports the concept of taking action against repeat offenders." The only "sanctions" mentioned in the DRP are with regard to registries.(Ignoring reports is not, in my mind, a "sanction"),

      Would you be happier if it read "The ALAC particularly supports the concept of taking action against registry repeat offenders."?

  7. Olivier Crepin-Leblond

    I hear what Carlton has said and also what others have said about the need for an appeals process re: rejection of alleged frivolous complaints.

    While I agree with the points made, I do think that the current and final draft by Alan captures most of these points on a more general level and that focusing further on the appeals process or issues of equating "Reporters" and "Registry Operators" in the case of "repeat offenders" risks diluting our message rather than strengthening it.

    In my opinion, the rejection of frivolous complaints is addressed through the ALAC being ready to work to develop reasonable controls. BUT the current track record re: ICANN staff or Board asking for members of our community to get directly involved in such implementation, without involving other SOs/ACs has currently been quite poor. I'd like to be pleasantly surprised in this instance.

     

  8. Alan Greenberg

    After checking with Evan, the phrase has been changed to "repeat registry offenders".

  9. Carlton Samuels

    Very happy to support!