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How ICANN thinks YOU could get full Whois access

Kevin Murphy, June 20, 2018, Domain Policy

With blanket public Whois access now firmly a thing of the past due to GDPR, ICANN has set the ball rolling on an accreditation system that would reopen the data doors to certain select parties.

The org yesterday published a high-level framework document for a “Unified Access Model” that could give Whois access to approved users such as police, lawyers, and even common registrants.

It contains many elements that are sure to be controversial, such as paying fees for Whois access, the right of governments to decide who gets approved, and ICANN’s right to see every single Whois query carried out under the program.

It’s basically ICANN’s attempt to frame the conversation about Whois access, outlining what it expects from community members such as registries and registrars, governments and others.

It outlines a future in which multiple “Authenticating Bodies” would hand out credentials (either directly or via referral to a central authority) to parties they deem eligible for full Whois access.

These Authenticating Bodies could include entities such as WIPO or the Trademark Clearinghouse for trademark lawyers and Interpol or Europol for law enforcement agencies.

Once suitably credentialed, Whois users would either get unexpurgated Whois access or access to only fields appropriate to their stated purpose. That’s one of many questions still open for discussion.

There could be fees levied at various stages of the process, but ICANN says there should be a study of the financial implications of the model before a decision is made.

Whois users would have to agree to a code of conduct specific to their role (cop, lawyer, registrant, etc) that would limit how they could use the data they acquire.

Additionally, registrars and registries would have to log every single Whois query and hand those logs over to ICANN for compliance and audit purposes. ICANN said:

based on initial discussions with members of the Article 29 Working Party, ICANN proposes that registry operators and registrars would be required to maintain audit logs of domain name queries for non-public WHOIS data, unless logging a particular entry is contrary to a relevant court order. The logs would be available to ICANN org for audit/compliance purposes, relevant data protection authorities, the registrant, or pursuant to a court order.

On the higher-level question of who should be given the keys to the new gates Whois — it’s calling them “Eligible User Groups” — ICANN wants to outsource the difficult decisions to either governments or, as a backstop, the ICANN community.

The proposal says: “Eligible User Groups might include intellectual property rights holders, law enforcement authorities, operational security researchers, and individual registrants.”

It wants the European Economic Area members of its Governmental Advisory Committee, and then the GAC as a whole, to “identify or facilitate identification of broad categories” of eligible groups.

ICANN’s next public meeting, ICANN 62, kicks off in Panama at the weekend, so the GAC’s next formal communique, which could address this issue, is about a week away.

ICANN also wants the GAC to help it identify potential Authenticating Bodies that would hand out credentials.

But the GAC, in its most recent communique, has already declined such a role, saying in March that it “does not envision an operational role in designing and implementing the proposed accreditation programs”.

If it sticks with that position, ICANN says it will turn to the community to have this difficult conversation.

It notes specifically the informal working group that is currently developing a “community” Accreditation & Access Model For Non-Public WHOIS Data.

This group is fairly controversial as it is perceived by some, fairly I think, as being dominated by intellectual property interests.

The group’s draft model is already in version 1.6 (pdf), and at 47 pages is much more detailed than ICANN’s proposal, but its low-traffic mailing list has almost no contracted parties on board and the IP guys are very decidedly holding the pen.

There’s also a separate draft, the Palage Differentiated Registrant Data Access Model (or “Philly Special”) (Word doc), written by consultant Michael Palage, which has received even less public discussion.

ICANN’s proposal alludes to these drafts, but it does not formally endorse either as some had feared. It does, however, provide a table (pdf) comparing its own model to the other two.

What do not get a mention are the access models already being implemented by individual registrars.

Notably, Tucows is ready to launch TieredAccess.com, a portal for would-be Whois users to obtain credentials to view Tucows-managed Whois records.

This system grants varying levels of access to “law enforcement, commercial litigation interests, and security researchers”, with law enforcement given the highest level of access, Tucows explained in a blog post yesterday.

That policy is based on the GDPR principle of “data minimization”, which is the key reason it’s currently embroiled in an ICANN lawsuit (unrelated to accreditation) in Germany.

Anyway, now that ICANN has published its own starting point proposal, it is now expected that the community will start to discuss the draft in a more formal ICANN setting. There are several sessions devoted to GDPR and Whois in Panama.

ICANN also expects to take the proposal to the European Data Protection Board, the EU committee of data protection authorities that replaced the Article 29 Working Party when GDPR kicked in last month.

However, in order for any of this to become binding on registries and registrars it will have to be baked into their contracts, which will mean it going through the regular ICANN policy development process, and it’s still not clear how much enthusiasm there is for that step happening soon.

Domainers could lose their names as .au loophole closes

Kevin Murphy, June 14, 2018, Domain Policy

Domain investors dabbling in the .au space could face losing their names under new policies set to be proposed.

The .au Policy Review Panel, which helps set policy for Australian ccTLD registry auDA, said this week it is thinking about closing a loophole related to domain monetization that has allowed “speculation and warehousing” in violation of longstanding rules.

Monetized domains are “largely detrimental” to .au and rules permitting the practice should be scrapped, the panel is expected to formally conclude.

Anyone currently monetizing domains could be given as little as a day to comply with the new rules or face losing their names.

The expected recommendations were outlined in a memo (pdf) penned by panel chair John Swinson, an intellectual property lawyer, who wrote:

the Panel received a lot of feedback and information from the public that Domain Monetisation is largely detrimental to the name space. Feedback, including from sophisticated businesses, domain brokers and portfolio owners, was one could register almost any domain name under the Domain Monetisation rule, and that the current rules were unclear, and that domain names were being registered under the cover of Monetisation primarily for the purposes of resale or warehousing (which is contrary to the current policy).

Current auDA policy on domaining, dating from 2012, is pretty clear when it comes to domainers: “A registrant may not register a domain name for the sole purpose of resale or transfer to another entity.”

However, there’s a loophole when it comes to domains that are monetized with ad links. If a domain is monetized, reselling no longer becomes its “sole purpose”.

Another auDA policy also from 2012 specifically permits monetization as a valid reason for owning a .com.au or .net.au name.

It says that monetized domains must carry ad content relevant to the topic of the domain, and that there should be no brand infringement in the domain itself.

Swinson’s panel agreed in a May 1 meeting (pdf) that this rule should be scrapped.

It’s not entirely clear what would come to replace it, as the panel doesn’t seem likely to actually ban monetization as such. Swinson wrote:

Because the current rules are outdated, inconsistent and unclear, it is difficult to enforce the current rules that prevent the registration of domain names for domain speculation and warehousing.

The Panel’ s current view is that Domain Monetisation will not be banned, but of itself will not be a basis to meet the allocation criteria.

The “allocation criteria” refers to the eligibility requirements for .au domains, which currently require a “close and substantial” link between the registrant and the name.

The panel’s memo states that there would be a “grandfathering” period during which domainers whose sites do not comply with the new policy would have time to update them:

The Panel’s current view is to recommend that any new eligibility and allocation rules should apply on the next renewal of a domain name license. This will give domain name licensees who meet the current rules, but who will not meet any new rules, time to deal with the non-compliance.

The problem here of course is that the “next renewal” could be anywhere from a day to two years away, depending on the domain. That’s probably an area the panel needs to look at.

The monetization issue is one of several addressed in the panel’s interim report (pdf), which also looks at the possibility of direct, second-level domain registration.

Any new policy on either issue is still many months away.

In GDPR case, ICANN ready to fight Tucows to the bitter end

Kevin Murphy, June 14, 2018, Domain Policy

ICANN has appealed its recent court defeat as it attempts to force a Tucows subsidiary to carry on collecting full Whois data from customers.

The org said yesterday that it is taking its lawsuit against Germany-based EPAG to a higher court and has asked it to bounce the case up to the European Court of Justice, as the first test case of the new General Data Protection Regulation.

In its appeal, an English translation (pdf) of which has been published, ICANN argues that the Higher Regional Court of Cologne must provide an interpretation of GDPR in order to rule on its request for an injunction.

And if it does, ICANN says, then it is obliged by the GDPR itself to refer that question to the ECJ, Europe’s highest judicial authority.

The case concerns Tucows’ refusal to carry on collecting contact information about the administrative and technical contacts for each domain name it sells, which it is contractually obliged to do under ICANN’s Whois policy.

These are the Admin-C and Tech-C fields that complement the registrant’s own contact information, which Tucows is of course still collecting.

Tucows says that these extra fields are unnecessary, and that GDPR demands it minimize the amount of data it collects to only that which it strictly needs to execute the registration contact.

It also argues that, if the Admin-C and Tech-C are third parties, it has no business collecting any data on them at all.

According to Tucows legal filings, more than half of its 10 million domains have identical data for all three contacts, and in more than three quarters of cases the registrant and Admin-C are identical.

In its appeal, ICANN argues that the data is “crucial for the objectives of a secure domain name system, including but not limited to the legitimate purposes of consumer protection,
investigation of cybercrime, DNS abuse and intellectual property protection and law enforcement needs”.

ICANN uses Tucows’ own numbers against it, pointing out that if Tucow has 7.5 million domains with shared registrant and Admin-C data, it therefore has 2.5 million domains where the Admin-C is a different person or entity, proving the utility of these records.

It says that registrars must continue to collect the disputed data, at the very least if it has secured consent from the third parties named.

ICANN says that nothing in the Whois policy requires personal data to be collected on “natural persons” — Admin-C and Tech-C could quite easily be legal persons — therefore there is no direct clash with GDPR, which only covers natural persons.

Its appeal, in translation, reads: “the GDPR is irrelevant if no data about natural persons are collected. In this respect, the Defendant is contractually obliged to collect such data, and failure to do so violates its contract with the Applicant.”

It goes on to argue that even if the registrant chooses to provide natural-person data, that’s still perfectly fine as a “legitimate purpose” under GDPR.

ICANN was handed a blow last month after a Bonn-based court refused to give it an injunction obliging EPAG (and, by inference, all registrars) to continue collecting Admin-C and Tech-C.

The lower court had said that registrants would be able to continue to voluntarily provide Admin-C and Tech-C, but ICANN’s appeal points out that this is not true as EPAG is no longer requesting or collecting this data.

In ICANN’s estimation, the lower court declined to comment on the GDPR implications of its decision.

It says the appeals court, referred to in translation as the “Senate”, cannot avoid interpreting GDPR if it has any hope of ruling on the injunction request.

Given the lack of GDPR case law — the regulation has only been in effect for a few weeks — ICANN reckons the German court is obliged by GDPR itself to kick the can up to the ECJ.

It says: “If the Senate is therefore convinced that the outcome of this procedure depends on the interpretation of certain provisions of the GDPR, the Senate must refer these possible questions to the ECJ for a preliminary ruling”.

It adds that should a referral happen it should happen under the ECJ’s “expedited” procedures.

An ECJ ruling has been in ICANN’s sights for some time; late last year CEO Goran Marby was pointing out that a decision from the EU’s top court would probably be the only way full legal clarity on GDPR’s intersection with Whois could be obtained.

It should be pointed out of course that this case is limited to the data collection issue.

The far, far trickier issue of when this data should be released to people who believe they have a legitimate purpose to see it — think: trademark guys — isn’t even up for discussion in the courts.

It will be, of course. Give it time.

All of ICANN’s legal filings, in the original German and unofficial translation, can be found here.

Atallah encourages domainers to get involved in ICANN

Kevin Murphy, June 7, 2018, Domain Policy

ICANN Global Domains Division chief Akram Atallah today encouraged domain investors to participate more in the ICANN community.

“Domain investors’ voices need to be heard in ICANN,” he said during brief remarks opening NamesCon Europe here in Valencia this morning.

“Your voices are as important as everyone else’s and should be heard,” he said.

He noted to the largely European crowd here that ICANN has a public meeting coming up in Barcelona toward the end of the year.

The call came within the context of comments that focused almost exclusively on GDPR and Whois.

Atallah said that the absence of Whois would make it difficult to track down bad guys and harder for the average person to ensure that the information they get online comes from a reputable source.

“Not everything on the internet is true,” he said, to an faux-incredulous “WHAT?!?” from a member of the audience. “You need to know who is behind this information.”

He said that ICANN hopes to keep Whois as transparent as possible, and played up the fact that most community members are now in agreement that a tiered access system seems like the best way forward, which he called a “major shift from 12 months ago, when the community could not agree on anything”.

He added that now that the Article 29 Working Party has been replaced by the European Data Protection Board, it could help ICANN figure out how to proceed on GDPR compliance efforts.

“I think we’ll get more clarity,” he said.

Disclosure: I’m at NamesCon on my own dime, but with a complementary complemintary complimentary press pass.

US asks if it should take back control over ICANN

Kevin Murphy, June 6, 2018, Domain Policy

The US government has asked the public whether it should reverse its 2016 action to relinquish oversight of the domain name system root.

“Should the IANA Stewardship Transition be unwound? If yes, why and how? If not, why not?”

That’s the surprisingly direct question posed, among many others, in a notice of inquiry (pdf) issued yesterday by the National Telecommunications and Information Administration.

The inquiry “is seeking comments and recommendations from all interested stakeholders on its international internet policy priorities for 2018 and beyond”. The deadline for comments is July 2.

The IANA transition, which happened in September 2016, saw the NTIA remove itself from the minor part it played, alongside meatier roles for ICANN and Verisign, in the old triumvirate of DNS root overseers.

At the handover, ICANN baked many of its previous promises to the US government into its bylaws instead, and handed oversight of itself over to the so-called Empowered Community, made up of internet stakeholders of all stripes.

The fact that the question is being asked at all would have been surprising not too long ago, but new NTIA chief David Redl and Secretary of Commerce Wilbur Ross expressed their willingness to look into a reversal as recently as January.

Back then Redl told Congresspeople, in response to questions raised primarily by Senator Ted Cruz during his confirmation process:

I am not aware of any specific proposals to reverse the IANA transition, but I am interested in exploring ways to achieve this goal. To that end, if I am confirmed I will recommend to Secretary Ross that we begin the process by convening a panel of experts to investigate options for unwinding the transition.

Cruz had objected to the transition largely based on his stated (albeit mistaken or disingenuous) belief that it gave China, Iran and a plethora of bad guys control over Americans’ freedom of speech, something that has manifestly failed to materialize.

But in the meantime another big issue has arisen — GDPR, the EU’s General Data Protection Regulation — which is in the process of eroding access rights to Whois data, beloved of US law enforcement and intellectual property interests.

NTIA is known to be strongly in favor of retaining access to this data to the greatest extent possible.

The notice of inquiry does not mention Whois or GDPR directly but it does ask several arguably related questions:

A. What are the challenges to the free flow of information online?

B. Which foreign laws and policies restrict the free flow of information online? What is the impact on U.S. companies and users in general?

C. Have courts in other countries issued internet-related judgments that apply national laws to the global internet? What have been the practical effects on U.S. companies of such judgements? What have the effects been on users?

NTIA’s statement announcing the inquiry prominently says that the agency is “working on” items such as “protecting the availability of WHOIS information”.

It also says it “has been a strong advocate for the multistakeholder approach to Internet governance and policy development”.

While GPDR and Whois are plainly high-priority concerns for NTIA, it’s beyond my ken how reversing the IANA transition would help at all.

GDPR is not ICANN policy, after all. It’s a European Union law that applies to all companies doing business in Europe.

Even if the US were to fully nationalize ICANN tomorrow and rewrite Whois policy to mandate the death penalty for any contracted party that refused to openly publish full Whois records, that would not make GDPR go away, it would probably just kick off a privacy trade war or mean that all US contracted parties would have to stop doing business in Europe.

That sounds like an extreme scenario, but Trump.

The NTIA’s inquiry closes July 2, so if you think the transition was a terrible idea or a wonderful idea, this is where to comment.