2023-04-04 Transfer Policy Review PDP WG Call

Notes/ Action Items

 ACTION ITEMS/HOMEWORK:  None captured. 

Notes:

1. Roll Call & SOI updates

2. Welcome and Chair Updates

• Project Workplan: Only action item was for WG members to share any updates from ICANN76 – none provided, consider this closed.  Reminder that though it looks like there is a lot of time for charter questions, but it is really only 9-10 meetings before ICANN77.

3. Continuation of Gap Analysis Discussion – Transfer Reversal (working document [docs.google.com])

• Last week walked through the proposal from Sarah Wyld.
• Staff have draft questions to help continue the discussion.
• For each subsection: 1) what is being proposed/problem to solved; 2) questions for discussion.

Codifying Informal Resolution:

• Some support to add rules/regulations when there is a problem – adding structure to the status quo.  Additional element: Temporary DNS reversal.

Discussion questions:

Is there evidence that the current process for informal resolution is insufficient? If not, what is the reason for codifying?

• Are there reasons to provide more structure? Would it help other registrars?  It adds a layer of transparency.
• Is this informal structure – is it widespread enough?
• Should there be timelines around the formalized process?
• Could provide some insight for registrants – could be in the form of guidance/FAQ instead of a formal process. 
• Question to registrars: Would this encourage other registrars?
• There is no formal process for registrars to deal with a dispute; informal process is the losing registrar contacting the gaining registrar to get the name returned.  Need a process because currently one doesn’t exist.
• Codifying existing informal processes doesn’t eliminate the need for indemnity.
• The current informal process as proposed for codification is only where there already is agreement among losing and gaining registrars to reverse the transfer.  If no agreement then we would go to a different step.
• Previous conversations: Some registrars noted that informal resolutions are happening frequently in the background and this informal process is working. There are upsides to structure, but also downsides.  Would be good for WG members to share examples.  See questions below.

Are WG members willing to share examples of when informal resolution was used successfully (with personal data redacted)? Examples of when it fell short?

If more structure is added:

• Should this be in the form of policy requirements or guidelines?

Discussion:

• Outcomes: 1) agreement ; 2) no agreement but nothing to do; 3) an escalation.  TDRP only covers violations of transfer policy. Having a codified process gives everyone a clear path.
• If there are those who’ve found the informal process ineffective, codifying the process wouldn’t do that.  What would be the benefit.  If the transfer policy only addresses disputes arising from violation of policy, not those not related to policy violations.  Codifying the informal process doesn’t address resolution of non-policy transfer disputes.
• Need the codification to ensure the process is consistent among registrars.
• It sounds like people want a much better dispute resolution process, but that should be raised in the scope of the existing transfer dispute policy.  That isn’t what this is.
• This proposal doesn’t address problems with the current policy.
• What we are really talking about is trying to codify that very first step.   The very fine line is do we codify that? Do we put timelines on it?  If not resolved doesn’t it automatically go to the next step.  Can registrars jump this step and jump to a TDRP?
• Two of the reasons the TDRP has only been formally initiated 8 times is 1) the existing policy is a legal procedure that registrars would want to avoid; 2) the costs are prohibitive.  It would be more effective if there were fewer barriers to entry.
• Agree: the TDRP doesn’t work, particularly because it doesn’t apply to non-policy disputes and the costs are too high.  Should also include registrants.
• Reminder: This discussion has been limited to a couple of participants – there has to be consensus to change the status quo.
• Possible path forward for the WG: If the WG agrees on codifying informal processes, but could say that we recognize the ineffectiveness of the informal process and the existing policy, so the WG could recommend x, y, z changes.
• Staff: The filing fee for a TDRP is $1330 for a one-member panel at the National Arbitration Forum. (I heard a reference to $10,000, but I’m not seeing that number.)
• If we codify this, does that lead to additional requirements?
• The issue of reporting and recording data could be part of this (complementary) but could be a separate recommendation.

Should there be two distinct paths, one for emergency (leveraging the TEAC) and one for non-emergency situations? What are the timeline requirements? What are the consequences if timelines are not met?

Discussion:

• How does the TEAC fit into all of this.  The TEAC should be used to initiate – but the timing is terrible.  It should be two business days, which matches other similar policies.  Could be used as the initial point of contact.
• Rick Wilhelm, RySG: Stating again some registry positions -- It appears that the TEAC process is susceptible to abuse to initiate fraudulent transfers.  Contacts can get stale.  Happening by phone leads to a lack of traceability – better to handle via the NSP.
• Re: TEAC – The only time that needs to change is the 4-hour response to 2 business days.  This is the key problem with the TEAC.  Still good as a point of contact to validate the transfer.
• If we are saying the timeframe needs to change, is that then just a normal process?  One entry point into the dispute mechanism?  Do the steps – response by a real person and roll-back if no response?
• Rick Wilhelm, RySG: Re: if the gaining registrar doesn’t respond and the losing registrar reaches out, that would be a deviation from the current process and puts the registry in the middle of the process.
• Caitlin Tubergen, staff: Noting some of the concerns why the TEAC was adopted in response to the SSAC’s concerns about emergencies.   Some community members could have concerns about 2 business days being too long in the case of emergency.  The RAA has a process response of 24 hours to report illegal activity (3.18.2) – that could be a precedent. 
• As far as TEAC, it would happen prior to a dispute process – it shouldn’t be used as part of a back and forth, just for the initiation.  The registry shouldn’t be part of a TEAC if the registrar isn’t responding.  We just need to give purpose to the TEAC: to initiate the dispute process.
• Need to hear if there is support for changing the TEAC timeline – whether to 2 business days or 24 hours. Also need to look at the action for a non-response.  Seems to be support for codifying the informal process.

Should the “new” registrant have the opportunity to challenge or interact with its registrar before a potential transfer is agreed to by the registrars?

Discussion:

• If there is no response from the registrar, should the resulting action be lighter than an undo?

4. AOB