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ICANN 63, Day 0 — registrars bollock DI as Whois debate kicks off

Kevin Murphy, October 21, 2018, 09:42:28 (UTC), Domain Policy

Blameless, cherubic domain industry news blogger Kevin Murphy received a bollocking from registrars over recent coverage of Whois reform yesterday, as he attended the first day of ICANN 63, here in Barcelona.

Meanwhile, the community working group tasked with designing this reform put in a 10-hour shift of face-to-face talks, attempting to craft the language that will, they hope, bring ICANN’s Whois policy into line with European privacy law.

Talks within this Expedited Policy Development Process working group have not progressed a massive amount since I last reported on the state of affairs.

They’re still talking about “purposes”. Basically, trying to write succinct statements that summarize why entities in the domain name ecosystem collect personally identifiable information from registrants.

Knowing why you’re collecting data, and explaining why to your customers, is one of the things you have to do under the General Data Protection Regulation.

Yesterday, the EPDP spent pretty much the entire day arguing over what the “purposes” of ICANN — as opposed to registries, registrars, or anyone else — are.

The group spent the first half of the day trying to agree on language explaining ICANN’s role in coordinating DNS security, and how setting policies concerning third-party access to private Whois data might play a role in that.

The main sticking point was the extent to which these third parties get a mention in the language.

Too little, and the Intellectual Property Constituency complains that their “legitimate interests” are being overlooked; too much, and the Non-Commercial Stakeholders Group cries that ICANN is overstepping its mission by turning itself into a vehicle for trademark enforcement.

The second half of the day was spent dealing with language explaining why collecting personal data helps to establish ownership of domains, which is apparently more complicated than it sounds.

Part of this debate was over whether registrants have “rights” — such as the right to use a domain name they paid for.

GoDaddy policy VP James Bladel spent a while arguing against this legally charged word, again favoring “benefits”, but appeared to eventually back down.

It was also debated whether relatively straightforward stuff such as activating a domain in the DNS by publishing name servers can be classed as the disclosure of personal data.

The group made progress reaching consensus on both sets of purposes, but damn if it wasn’t slow, painful progress.

The EPDP group will present its current state of play at a “High Interest Topic” session on Monday afternoon, but don’t expect to see its Initial Report this week as originally planned. That’s been delayed until next month.

While the EPDP slogs away, there’s a fair bit of back-channel lobbying of ICANN board and management going on.

All the players with a significant vested interest in the outcome are writing letters, conducting surveys, and so on, in order to persuade ICANN that it either does or does not need to create a “unified access model” that would allow some parties to carry on accessing private Whois data more or less the same way as they always have.

One such effort is the one I blogged about on Thursday, shortly before heading off to Barcelona, AppDetex’s claims that registrars have ignored or not sufficiently responded to some 9,000 automated requests for Whois data that its clients (notably Facebook) has spammed them with recently.

Registrars online and in-person gave me a bollocking over the post, which they said was one-sided and not in keeping with DI’s world-renowned record of fairness, impartiality and all-round awesomeness (I’m paraphrasing).

But, yeah, they may have a point.

It turns out the registrars still have serious beef with AppDetex’s bulk Whois requests, even with recent changes that attempt to scale back the volume of data demanded and provide more clarity about the nature of the request.

They suspect that AppDetex is simply trawling through zone files for strings that partially match a handful of Facebook’s trademarks, then spamming out thousands of data requests that fail to specify which trademarks are being infringed and how they are being infringed.

They further claim that AppDetex and its clients do not respond to registrars’ replies, suggesting that perhaps the aim of the game here is to gather data not about the owner of domains but about registrars’ alleged non-compliance with policy, thereby propping up the urgent case for a unified access mechanism.

AppDetex, in its defence, has been telling registrars on their private mailing list that it wants to carry on working with them to refine its notices.

The IP crowd and registrars are not the only ones fighting in the corridors, though.

The NCSG also last week shot off a strongly worded missive to ICANN, alleging that the organization has thrown in with the IP lobby, making a unified Whois access service look like a fait accompli, regardless of the outcome of the EPDP. ICANN has denied this.

Meanwhile, cybersecurity interests have also shot ICANN the results of a survey, saying they believe internet security is suffering in the wake of ICANN’s response to GDPR.

I’m going to get to both of these sets of correspondence in later posts, so please don’t give me a corridor bollocking for giving them short shrift here.

UPDATE: Minutes after posting this article, I obtained a letter Tucows has sent to ICANN, ripping into AppDetex’s “outrageous” campaign.

Tucows complains that it is being asked, in effect, to act as quality control for AppDetex’s work-in-progress software, and says the volume of spurious requests being generated would be enough for it ban AppDetex as a “vexatious reporter”.

AppDetex’s system apparently thinks “grifflnstafford.com” infringes on Facebook’s “Insta” trademark.

UPDATE 2: Fellow registrar Blacknight has also written to ICANN today to denounce AppDetex’s strategy, saying the “automated” requests it has been sending out are “not sincere”.

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