ICANN: tell us how you will break Whois rules

ICANN has invited registrars and registries to formally describe how they plan to break the current rules governing Whois in order to come into compliance with European Union law.
The organization today published a set of guidelines for companies to submit proposals for closing off parts of Whois to most internet users.
It’s the latest stage of the increasingly panicky path towards reconciling ICANN’s contracts with the General Data Protection Regulation, the EU law that comes into full effect in a little over five months.
GDPR is designed to protect the privacy of EU citizens. It’s generally thought to essentially ban the full, blanket, open publication of individual registrants’ contact information, but there’s still some confusion about what exactly registries and registrars can do to become compliant.
Fines maxing out at of millions of euros could be levied against companies that break the GDPR.
ICANN said last month that it would not pursue contracted parties that have to breach their agreements in order to avoid breaking the law.
The catch was that they would have to submit their proposals for revised Whois services to ICANN for approval first. Today is the first time since then that ICANN has officially requested such proposals.
The request appears fairly comprehensive.
Registries and registrars will have to describe how their Whois would differ from the norm, how it would affect interoperability, how protected data could be accessed by parties with “legitimate interests”, and so on.
Proposals would be given to ICANN’s legal adviser on GDPR, the Swedish law firm Hamilton, and published on ICANN’s web site.
ICANN notes that submitting a proposal does not guarantee that it will be accepted.

Open Whois must die, Europe privacy chiefs tell ICANN

Unfettered public access to full Whois records is illegal and has to got to go, an influential European Union advisory body has told ICANN.
The Article 29 Working Party on Data Protection, WP29, wrote to ICANN yesterday to say that “that the original purposes of the WHOIS directories can be achieved via layered access” and that the current system “does not appear to meet the criteria” of EU law.
WP29 is made up of representatives of the data protection agencies in each EU member state. It’s named after Article 29 of the EU’s 1995 Data Protection Directive.
This directive is parent legislation of the incoming General Data Protection Regulation, which from May 2018 will see companies fined potentially millions of euros if they fail to protect the privacy of EU citizens’ data.
But WP29 said that there are questions about the legality of full public Whois under even the 1995 directive, claiming to have been warning ICANN about this since 2003:

WP29 wishes to stress that the unlimited publication of personal data of individual domain name holders raises serious concerns regarding the lawfulness of such practice under the current European Data Protection directive (95/46/EC), especially regarding the necessity to have a legitimate purpose and a legal ground for such processing.

Under the directive and GDPR, companies are not allowed to make consent to the publication of private data a precondition of a service, which is currently the case with domain registration, according to WP29.
Registrars cannot even claim the publication is contractually mandated, because registrants are not party to the Registrar Accreditation Agreement, the letter (pdf) says.
WP29 adds that law enforcement should still be able to get access to Whois data, but that a “layered” access control approach should be used to prevent full disclosure to anyone with a web browser.
ICANN recently put a freeze on its contract compliance activities surrounding Whois, asking registries and registrars to supply the organization with the framework and legal advice they’re using to become compliant with GDPR.
Registries and registrars are naturally impatient — after a GDPR-compatible workaround is agreed upon, they’ll still need to invest time and resources into actually implementing it.
But ICANN recently told contracted parties that it hopes to lay out a path forward before school breaks up for Christmas December 22.

Roberts elected to ICANN board

Channel Islands ccTLD operator Nigel Roberts has been elected to ICANN’s board of directors.
He gathered an impressive 67% of the votes in an anonymous poll of ccNSO members conducted last week.
He received 60 votes versus the 29 cast for his only opponent, Pierre Ouedraogo, an internet pioneer from Burkina Faso.
Roberts, a Brit, runs ChannelIsles.net, registry manager for .gg (for the islands Guernsey, Alderney and Sark) and .je (for Jersey). These are the independent UK dependencies found floating between England and France.
He’s been in the ICANN community since pretty much day one.
His election still has to be formally confirmed by the ccNSO Council and then the ICANN Empowered Community.
Roberts will not take his seat on the ICANN board until October next year, at the end of public meeting in Barcelona.
He will replace Mike Silber, the South African who’s currently serving his ninth and therefore final year as a director.
The other ccNSO seat is held by Australian ICANN vice chair Chris Disspain, who is also term-limited and will leave at the end of 2019.

Aussie gov refuses to spill the beans on ICANN vice chair’s firing

The Australian government has refused to release documents concerning alleged “financial irregularities” at local ccTLD manager auDA that have been linked to the firing of former CEO Chris Disspain.
A request under the Freedom of Information Act sought documents detailing Disspain’s March 2016 termination, as well as high levels of travel expenses and apparent under-reporting of “fringe benefit tax” under his watch.
The request was filed in September by by industry consultant Ron Andruff, who is known to have beef with Disspain after having been passed over for an important ICANN leadership role.
One of the specific documents sought by Andruff was an unpublished audit by PPB Advisory known to have uncovered slack historical expenses management practices and high levels of travel expenditure.
While rumors have circulated, there have been no substantiated allegations of wrongdoing by Disspain.
The Australian Department of Communications and the Arts told Andruff this weekend that 13 relevant documents had been identified and reviewed, but that all were exempt from disclosure under the FOI Act.
Reasons given include the right to privacy of the individual concerned and the fact that the information could fuel “unsubstantiated allegations of misconduct”.
The Department also thought that disclosing the documents could make it harder to it to obtain information from auDA in future, particularly relevant given that it recently kicked off a review of the organization.
While acknowledging there were some public interest reasons to publish the documents, on balance it said that the public interest reasons not to publish were more numerous.
auDA has been plagued by problems such as high turnover of staff and board, unpopular policies, and the member-instigated ouster of its chair, since Disspain left.
Separately, Disspain became ICANN’s vice chair earlier this month, having sat on the board for the last seven years as a representative of the ccTLD community.
He’s one of four community-nominated ICANN directors who have agreed to undergo the same background checks as their Nominating Committee-appointed counterparts, in part due to pressure applied by Andruff.
The FOI response can be viewed here (pdf).

Hurricane victims get a renewal pass under ICANN rules

ICANN has given registries and registrars the ability to delay the cancellation of domain names owned by victims of Hurricane Maria and other similar natural disasters.
In a note to contracted parties, published by Blacknight boss Michele Neylon this weekend, Global Domains Division president Akram Atallah said:

registrars will be permitted to temporarily forebear from canceling domain registrations that were unable to be renewed as a result of the natural disaster.

Maria and other hurricanes caused widespread damage to infrastructure in the Caribbean earlier this year — not to mention the loss of life — making it difficult for many people to get online to renew their registrations.
ICANN’s Registrar Accreditation Agreement ties registrars to a fairly strict domain name renewal and expiration life-cycle, but there’s a carve out for certain specified “extenuating circumstances” such as bankruptcy or litigation.
Atallah’s note makes it clear that ICANN considers hurricane damage such a circumstance, so its contractual compliance department will not pursue registrars who fail to expire domains on time when the registrant has been affected by the disaster.
He added that perhaps it’s time for the ICANN community to come up with a standardized policy for handling such domains. There’s already been mailing list chatter of such an initiative.
ICANN is heading to Puerto Rico, which was quite badly hit by Maria, for its March 2018 public meeting.
While attendees have been assured that the infrastructure is in place for the meeting to go ahead, large parts of the island are reportedly still without power.

Even post-Weinstein, no sexual harassment complaints at ICANN

There have been no formal complaints of sexual harassment in the ICANN community since the organization introduced a zero tolerance policy back in March, according to the Ombudsman.
That’s even after the current media storm about such behavior, precipitated by the revelations about movie producer Harvey Weinstein, which has given men and women in many industries the confidence to level accusations against others.
“There have been no complaints of sexual harassment since the implementation of the Community Anti-Harassment Policy nor the uptake of [post-Weinstein] media coverage,” ICANN Ombudsman Herb Weye told DI in response to an inquiry today.
The anti-harassment policy was adopted in March, and there have been three full, in-person ICANN meetings since then.
Face-to-face meetings are of course where one would expect to see such incidents, if any were to occur.
The policy bans everything from groping to wolf-whistling to dirty jokes to repeated, unwanted requests for dates.
At the time the policy was approved, ICANN general counsel John Jeffrey noted that there had been more than one such complaint since the infamous Cheesesandwichgate incident in March 2016.
No complaints since March does not necessarily mean no incidents, of course.
One recent recommendation to reform the office of the Ombudsman (or Ombudsperson, or simply Ombuds, in recent ICANN documentation) is to ensure a gender-mixed staff to perhaps make it more likely for issues related to gender to be reported.
A recent, non-scientific survey of ICANN participants found that about a third of women had knowledge or experience of sexism in the community.
Weye said that most complaints about non-sexual “harassment” occur at social events where alcohol is involved. He said that ICANN participants should be discreet when discussing “sensitive” cultural issues in such contexts, lest they inadvertently offend those within earshot.
There is “no place for disrespect in ICANN’s multi-cultural diverse environment” he said.

Corwin joins Verisign

Phil Corwin, the face of the Internet Commerce Association for over a decade, today quit to join Verisign’s legal team.
He’s now “policy counsel” at the .com giant, he said in a statement emailed to industry bloggers.
He’s also closed down the consulting company Virtualaw, resigned from ICANN’s Business Constituency and from his BC seat on the GNSO Council.
But he said he would continue as co-chair of two ICANN working groups — one looking at rights protection for intergovernmental organizations (which is kinda winding down anyway) and the other on general rights protection measures.
“I have no further statement at this time and shall not respond to questions,” Corwin concluded his email.
He’s been with ICA, which represents the interests of big domain investors, for 11 years.
As well as being an ICANN working group volunteer, he’s produced innumerable public comments and op-eds fighting for the interests of ICA members.
One of his major focuses over the years has been UDRP, which ICA believes should be more balanced towards registrant rights.
He’s also fought a losing battle against ICANN “imposing” the Uniform Rapid Suspension process on pre-2012 gTLDs, due to the fear that it one day may be forced upon Verisign’s .com and .net, where most domain investment is tied up.

ICANN heading back to Morocco in 2019

ICANN has picked Morocco for its mid-year meeting in 2019.
The June 24-27 meeting, ICANN 65, will be hosted by the Mediterranean Federation of Internet Associations at the Palmeraie Resort in Marrakech. That’s the same venue as ICANN 55 in March 2016.
It’s a Policy Forum meeting, meaning it has an abridged agenda, an expected lower attendance, and a tighter focus on policy work than the other two annual meetings.
It will be sandwiched between the March meeting in Kobe, Japan and the November meeting in Montreal, Canada.
More pressingly, it now seems all but certain that ICANN is heading to Puerto Rico in March 2018 for ICANN 61, despite the extensive damage caused by Hurricane Maria in September.
During the public forum at ICANN 60 in Abu Dhabi last week, the customary spot where the next meeting’s hosts get five minutes to plug their city or nation was notably different.
Shots of landscapes, sunsets and cultural attractions were instead replaced by a series of government and local tourism officials encouraging ICANNers to visit. The message was basically: everything’s okay, it’s safe for you to come.

The convention center venue for ICANN 61 was so lightly damaged by Maria that it was actually used as the headquarters of the recovery effort immediately after the storm. You may have seen news footage of it when President Trump showed up.
ICANN said October 7 that it was monitoring the situation but that it still intended to have the March meeting in San Juan as planned.
The city would no doubt welcome the modest economic boost that a few thousand tech professionals and lawyers showing up for a week will provide.
I’m planning on attending.

Refund “options” for in-limbo gTLD applicants?

ICANN may just be a matter of weeks away from giving applicants for the .mail, .corp and .home gTLDs an exit strategy from their four years in limbo.
Its board of directors on Thursday passed a resolution calling for staff to “provide options for the Board to consider to address the New gTLD Program applications for .CORP, .HOME, and .MAIL by the first available meeting of the Board following the ICANN60 meeting in Abu Dhabi”.
It’s possible this means the board could consider the matter before the end of the year.
Twenty remaining applications for the three strings have been on hold since they were identified as particularly risky in August 2013.
A study showed that all three — .home and .corp in particular — already experience vast amounts of erroneous DNS traffic on a daily basis.
This is due to so-called “name collisions”, which come about when a newly delegated TLD is actually already in use on corporate or public networks.
Many companies use .corp and .mail already behind their firewalls, a practice sometimes historically encouraged by commercial technical documentation, and .home is known to be used by some ISPs in residential and business routers.
Both of these scenarios and others can lead to DNS queries spilling out onto the public internet, which could cause breakage or data leakage.
The solution for all new gTLDs delegated to date has been to wildcard the entire zone with the message “Your DNS needs immediate attention” for a period before registrations are accepted.
This has led to some new gTLDs with far less collision traffic seeing small but notable pockets of outrage when delegated — Google’s .prod (used by some as an internal shorthand for “production”) in 2014.
Studies to date have concentrated on the volume of error traffic to applied-for gTLDs, but last Thursday the ICANN board kicked off a study that will look at what the real-world impact of name collisions in .mail, .corp and .home could be.
It’s tasked the Security and Stability Advisory Committee with carrying out the study in conjunction with related groups such as the IETF.
But this is likely to take quite a long time, so the board also resolved to think up “options” for the 20 affected applications.
Could the applicants be offered a full refund, as opposed to the partial one they currently qualify for? Could there be some kind of deferment option, such as that offered to unsuccessful 2000-round applicants? Either seems possible.

ICANN beefs up background checks on directors amid concerns about vice-chair

ICANN is to beef up background screening procedures for its own board of directors after concerns were raised about financial integrity.
Directors in four seats that were not previously subject to screening have voluntarily agreed to checks “immediately” and ICANN has urged two of its supporting organizations to bring in such checks as standard.
Chris Disspain and Mike Silber, selected by the Country Code Names Supporting Organization, and Generic Names Supporting Organization selectees Becky Burr and Matthew Shears are these volunteers.
Neither the GNSO nor ccNSO currently screen their director picks to the same standard as other supporting organizations and the Nominating Committee.
ICANN said that they will be checked for “negative indicators such as discrepancies on a resume (including licenses, educational history and employment history), or publicly reported issues of financial mismanagement, fraud, harassment and mishandling of confidential information”.
The board passed a resolution last Thursday calling for the two SOs to bring in “the same or similar” screening procedures for future directors.
The resolution was passed minutes before the formal handover of power from outgoing chair Steve Crocker to new chair Cherine Chalaby. Disspain is the new vice-chair, replacing Chalaby.
ICANN had been put under pressure to widen its director due diligence earlier in the week by consultant and long-time ICANN community member Ron Andruff, who is known to have concerns about Disspain’s financial integrity.
Andruff spoke at an open-mic session with the board last Monday to recommend that the four anomalous directors face screening before the board was re-seated just a few days later.
“We’re talking about risk,” he said. “We’re talking about making sure that we do not put our institution that we’ve worked so hard to put into ICANN 2.0 in a place where we have four people that might have something, or not. And quite frankly, I don’t expect we’re going to find anything. I just want to make sure that we’ve checked that box,” Andruff said.
“We have the resources to do four background screenings between now and Thursday. No one expects any issues to surface. But this simple act will ensure that the institution is properly protected,” Andruff said.
Then-chair Crocker responded that it would not be possible to do the checks so quickly, but agreed in principle with the need for screening and said the board had had “substantial discussions” on the matter.
Andruff is former chair-elect of the Nominating Committee, which chooses eight directors and subjects all of its appointees to background screening.
He recently made a Freedom of Information Act request in Australia related to the circumstances leading to Disspain getting fired as CEO of local ccTLD administrator auDA in March 2016.
Disspain was let go after his relationship with the auDA board became “increasingly strained over issues of process, transparency and accountability”, according to an external review published by auDA in October last year.
auDA’s practices had “not kept pace with auDA’s growth in scale and importance to the Australian community, nor with evolving good practice in governance and accountability”, this review found.
The review did not directly allege any wrongdoing by Disspain.
A separate and currently unpublished review around the same time by PPB Advisory found that auDA had been “under-reporting” so-called “fringe benefit tax” to the Aussie tax authorities, according to auDA board meeting minutes.
FBT is tax companies must pay on employee benefits such as a company car or payment of private expenses.
There’s no clear indication in the public record that this under-reporting was directly related to benefits Disspain received, though the under-reporting very likely happened at least partially during his 15 years as CEO.
A slide deck discussing the PPB review published by auDA identified “a lack of formal policies and procedures governing how travel and expenses were managed”.
It added: “There were high levels of expenditure on international travel and reimbursement arrangements with international bodies that lacked transparency, which should have warranted a more robust process”.
All expenses incurred by ICANN’s directors and reimbursed in relation to their duties are a matter of public record.
Disspain receives not only a $45,000 annual salary but also tens of thousands of dollars in reimbursements each year, much of which is related to directors’ extensive travel obligations, these records show.
In its last reported tax year, to June 30, 2016, he received $68,437 in reimbursements, according to a published document (pdf). ICANN directly paid another $32,951 on his behalf.
A number of allegations have been made to DI (and, I believe, to other bloggers) over the last few months about alleged wrongdoing by Disspain in connection to these nuggets of information, but they’ve come from sources who refuse to identify themselves or provide corroborating evidence.
Despite efforts, I’ve been unable to independently verify these anonymous claims, which come amid turbulent times for auDA and its members, so I’ve chosen not to repeat them.
Andruff, meanwhile, has used FOI law to ask the Australian government, which has oversight of auDA, for the full PPB report, as well as documents related to the FBT issue, Disspain’s termination and his travel expenses.
Andruff and Disspain are known to have a history of friction.
Two years ago, Andruff expressed his anger after having been passed over for the job of chair of the NomCom, a role that be believes should have gone to him as chair-elect.
He lost the opportunity after the ICANN board, exercising its bylaws-permitted discretion, accepted the recommendation of its Board Governance Committee — at the time chaired by Disspain — that it be given to Stephane Van Gelder instead.
The original deadline for the Australian government response to Andruff’s FOI request was October 16, but this has been extended twice, now to November 19, due to the complexity of the request.
The eventual response will no doubt be read with interest.