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ICANN denies Whois policy “failure” as Marby issues EU warning

Kevin Murphy, October 19, 2020, 19:43:58 (UTC), Domain Policy

ICANN directors have denied that recently delivered Whois policy recommendations represent a “failure” of the multistakeholder model.

You’ll recall that the GNSO Council last month approved a set of controversial recommendations, put forward by the community’s EPDP working group, to create a semi-centralized system for requesting access to private Whois data called SSAD.

The proposed policy still has to be ratified by the ICANN board of directors, but it’s not on the agenda for this week’s work-from-home ICANN 69 conference.

That has not stopped there being some robust discussion, of course, with the board talking for hours about the recommendations with its various stakeholder groups.

The EPDP’s policy has been criticized not only for failing to address the needs of law enforcement and intellectual property owners, but also as a failure of the multistakeholder model itself.

One of the sharpest public criticisms came in a CircleID article by Fabricio Vayra, IP lawyer are Perkins Coie, who tore into ICANN last month for defending a system that he says will be worse than the status quo.

But ICANN director Becky Burr told registries and registrars at a joint ICANN 69 session last week: “We don’t think that the EPDP represents a failure of the multistakeholder model, we actually think it’s a success.”

“The limits on what could be done in terms of policy development were established by law, by GDPR and other data protection laws in particular,” she added.

In other words, it’s not possible for an ICANN working group to create policy that supersedes the law, and the EPDP did what it could with what it was given.

ICANN CEO Göran Marby doubled down, not only agreeing with Burr but passing blame to EU bureaucrats who so far have failed to give a straight answer on important liability issues related to the GDPR privacy regulation.

“I think the EPDP came as far as it could,” he said during the same session. “Some of the people now criticizing it are rightly disappointed, but their disappointment is channeled in the wrong direction.”

He then referred to his recent outreach to three European Commission heads, in which he pleaded for clarity on whether a more centralized Whois model, with more liability shifted away from registrars to ICANN, would be legal.

A failure to provide such clarity would be to acknowledge that the EPDP’s policy proposals are all just fine and dandy, despite what law enforcement and some governments believe, he suggested.

“If the European Union, the European Commission, member states in Europe, or the data protection authorities don’t want to do anything, they’re happy with the situation,” he told registrars and registries.

“If they don’t take actions now, or answer our questions, they’re happy with the way people or organizations get access to the Whois data… it seems that if they don’t change or do anything, they’re happy, and then were are where we are,” he said.

He reiterated similar thoughts at sessions with other stakeholders last week.

But he faced some pushback from members of the pro-privacy Non-Commercial Stakeholders Group, particularly during an entertaing exchange with EPDP member Milton Mueller, who’s unhappy with how Marby has been characterizing the group’s output to the EU.

He specifically unhappy with Marby telling the commissioners: “Should the ICANN Board approve the SSAD recommendations and direct ICANN org to implement it, the community has recommended that the SSAD should become more centralized in response to increased legal clarity.”

Mueller reckons this has no basis in what the EPDP recommended and the GNSO Council approved. It is what the IP interests and governments want, however.

In response, Marby talked around the issue and seemed to characterize it as a matter of interpretation, adding that he’s only trying to provide the ICANN community with the legal clarity it needs to make decisions.

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Comments (4)

  1. 215 says:
    October 19, 2020 at 8:44 pm

    It would be nice if you can give us the gist of it in laymens terms. Thank you

    Reply
    • Kevin Murphy says:
      October 19, 2020 at 9:57 pm

      I was trying mate 🙂

      Basically, ICANN only exists and has power because the internet community allows it to exist and have power.

      The reason is because of the “multistakeholder model” or “MSM”, in which anybody who wants to can participate in the policy-making process, and policies are only made when they have community consensus.

      In this case, there was a community process to create a new Whois policy that respects the new privacy laws that have been introduced around the world over the last couple of years, such as the European Union’s General Data Protection Regulation, while still enabling access to Whois data for people who say they need it — such as cops and trademark lawyers.

      What this process came up with is more pro-privacy than it is pro-access, so some of the people who didn’t get what they wanted are attacking not only the outcome, but also the process itself.

      That means they’re attacking ICANN itself.

      ICANN directors are now defending the process, saying that the ICANN process can create ICANN policy but can’t overrule the law.

      In addition, ICANN’s CEO is saying that it’s the fault of European Union bureaucrats, who on the one hand are calling for privacy protections but on the other hand are calling for Whois access for their law enforcement and consumer protection agencies.

      ICANN’s basically calling them on their bullshit, and Marby is saying that if they don’t lay out in simple terms what it is they want and what is legal, they probably won’t get what they probably want.

      I hope that counts as layman’s terms.

      If it doesn’t, dude, probably not the blog for you 🙂

      Reply
  2. 215 says:
    October 20, 2020 at 8:09 am

    Thank you very much for the explanation..so much happening in 2020. Now that china bought a huge amount of short and generic names and looks to be embracing the internet moreso maybe they as well as others want to limit control of icann cause even though its a bottom top governance and multistake holder model everyone knows the u.s. ultimately controls them behind the scenes.
    Again thank you for taking the time .
    P.s. that last statement about not understanding and maybe this blog is not for me is somewhat arrogant and not befitting your percieved character. I only know you from what you write and how you respond in the comments. But you did take the time when you didn’t have to which was very nice.

    Reply

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