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Mediators hired as Whois reformers butt heads

Kevin Murphy, September 17, 2018, Domain Policy

ICANN has hired professional mediators to help resolve strong disagreements in the working group tasked with reforming Whois for the post-GDPR world.

Kurt Pritz, chair of the Expedited Policy Development Process for Whois, last week told the group that ICANN has drafted in the Consensus Building Institute, with which it has worked before, to help “narrow issues and reach consensus”.

Three CBI mediators will brief the EPDP group today, and join them when the WG meets face-to-face for the first time at a three-day session in Los Angeles later this month.

Their goal is not to secure any particular outcome, but to help the disparate viewpoints find common ground, Pritz told the group.

It’s been Pritz’s intention to get the mediators in since day one — he knew in advance how divisive Whois policy is — but it’s taken until now to get the contracts signed.

The EPDP WG’s job is to create a new, privacy-conscious, consensus Whois policy that will apply to all gTLD registries and registrars. Its output will replace ICANN’s post-GDPR Temporary Specification for Registration Data, which in turn replaced the longstanding Whois policy attached to all ICANN registry and registrar contracts.

Since the working group first convened in early August — about 500 emails and 24 hours of painful teleconferences ago — common ground has been hard to find, and in fact the EPDP group did not even attempt to find consensus for the first several weeks of discussions.

Instead, they worked on its first deliverable, which was finalized last week, a “triage report” that sought to compile each faction‘s opinion of each section of ICANN’s Temp Spec.

The idea seemed sensible at the time, but with hindsight it’s arguable whether this was the best use of the group’s time.

The expectation, I believe, was that opposing factions would at least agree on some sections of text, which could then be safely removed from future debate.

But what emerged instead was this, a matrix of disagreement in which no part of the Temp Spec did not have have at least one group in opposition: Triage Table

The table is potentially misleading, however. Because groups were presented with a binary yes/no option for each part of the spec, “no” votes were sometimes recorded over minor language quibbles where in fact there was agreement in principle.

By restricting the first few weeks of conversation to the language of the Temp Spec, the debate was arguably prematurely hamstrung, causing precious minutes to trickle away.

And time is important — the EPDP is supposed to deliver its consensus-based Initial Report to the ICANN 63 meeting in Barcelona about five weeks from now.

That’s going to be tough.

What’s becoming increasingly clear to me from the post-triage talks is that the WG’s task could be seen as not much less than a wholesale, ground-up, reinvention of the Whois wheel, recreated with GDPR as the legal framework.

Who is Whois for?

Discussions so far have been quite mind-expanding, forcing some fundamental rethinking of long-held, easy assumptions, at least for this lurker. Here’s an example.

One of the fundamental pillars of GDPR is the notion of “purposes”. Companies that collect private data on individuals have to do so only with specific, enumerated purposes in mind.

The WG has started by discussing registrars. What purpose does a registrar have when it collects Whois data from its registrants?

None whatsoever, it was claimed.

“To execute the contract between the registrant and the registrar, it’s really not necessary for registrars to collect any of this information,” GoDaddy head of policy James Bladel, representing registrars, told the group on its latest call Thursday.

Registrars collect data on their customers (not just contact data, but also stuff like credit card details) for billing and support purposes, but this is not the same as Whois data. It’s stored separately and never published anywhere. While covered by GDPR, it’s not covered by Whois policy.

Whois data is only collected by registrars for third parties’ purposes, whether that third party be a registry, ICANN, a data escrow agent, a cop, or an intellectual property enforcer.

“Other than a few elements such as domain name servers, there is nothing that is collected in Whois that is needed for the registrar to do their business,” At-Large Advisory Committee chair Alan Greenberg told the WG. “All of them are being collected for their availability to third parties, should they need it.”

While this may seem like a trivial distinction, drawing a hard line between the purposes of registries, registrars and ICANN itself on the one hand and law enforcement, cybersecurity and IP lawyers on the other is one of the few pieces of concrete advice ICANN has received from European data protection regulators.

There’s by no means unanimous agreement that the registrars’ position is correct, but it’s this kind of back-to-basics discussion that makes me feel it’s very unlikely that the EPDP is going to be able to produce an Initial Report with anything more than middling consensus by the October deadline.

I may be overly pessimistic, but (mediators or no mediators) I expect its output will be weighted more towards outlining and soliciting public comment on areas of disagreement than consent.

And the WG has not yet even looked in depth at the far thornier issue of “access” — the policy governing when third parties such as IP lawyers will be able to see redacted Whois data.

Parties on the pro-access side of the WG have been champing at the bit to bring access into the debate at every opportunity, but have been

Hey, look, a squirrel!

The WG has also been beset by its fair share of distractions, petty squabbles and internal power struggles.

The issues of “alternates” — people appointed by the various constituencies to sit in on the WG sessions when the principles are unavailable — caused some gnashing of teeth, first over their mailing list and teleconference privileges and then over how much access they should get to the upcoming LA meeting.

Debates about GDPR training — which some say should have been a prerequisite to WG participation — have also emerged, after claims that not every participant appeared clued-in as to what the law actually requires. After ICANN offered a brief third-party course, there were complaints that it was inadequate.

Most recently, prickly Iranian GAC rep Kavouss Arasteh last week filed a formal Ombudsman complaint over a throwaway god-themed pun made by Non-Com Milton Mueller, and subsequently defended by fellow non-resident Iranian Farzaneh Badii, in the Adobe Connect chat room at the September 6 meeting.

Mueller has been asked to apologize.

Empty Whois a threat to the US elections?

Kevin Murphy, September 5, 2018, Domain Policy

Could a lack of Whois records thwart the fight against attempts to interfere in this year’s US elections?

That’s the threat raised by DomainTools CEO Tim Chen in a blog post, and others, this week.

Chen points to recent research by Facebook, based on an investigation by security company FireEye, that linked a large network of bogus news sites and social media accounts to the Iranian state media.

FireEye’s investigation used “historical Whois records”, presumably provided by DomainTools, to connect the dots between various domains and registrants associated with “Liberty Front Press”, a purportedly independent media organization and prolific social media user.

Facebook subsequently found that 652 accounts, pages and groups associated with the network, and removed them from its platform.

The accounts and sites in question were several years old but had been focusing primarily on politics in the UK and US since last year, Facebook said.

Based on screenshots shared by Facebook, the accounts had been used to spread political messages bashing US president Donald Trump and supporting the UK’s staunchly pro-Palestinian opposition leader Jeremy Corbyn.

Google’s research, also inspired by FireEye’s findings and Whois data, linked the network to the state-run Islamic Republic of Iran Broadcasting.

The actions by Google and Facebook come as part of their crackdown on fake news ahead of the US mid-term Congressional elections, this November, which are are largely being seen as a referendum on the Trump presidency.

Because the domains in question predate the General Data Protection Regulation and ICANN’s response to it, DomainTools was able to capture Whois records before they went dark in May.

While the records often use bogus data, registrant email addresses common to multiple domains could be used to establish common ownership.

Historical Whois data for domains registered after May 2018 is not available, which will likely degrade the utility of DomainTools’ service over time.

Chen concluded his blog post, which appeared to be written partly in response to data suggesting that GDPR has not led to a growth in spam, with this:

Domain name Whois data isn’t going to solve the world’s cyberattack problems all on its own, but these investigations, centering on an issue of global importance that threatens our very democracy, likely get severely impaired without it. And this is just the tip of the iceberg, a few uniquely important investigations among the hundreds of thousands of cyberattacks going on all day every day all over the globe by people and organizations that can now hide behind the anonymity inherent in today’s internet. It’s reasonable that domain names used for certain commercial or functional purposes should require transparent registration information. Whois is not a crime.

DomainTools is one of the founders of the new Coalition for a Secure and Transparent Internet, a lobby group devoted to encouraging legislatures to keep Whois open.

Representatives of Facebook and Iran’s government are among the members of the Expedited Policy Development Process on Whois, an emergency ICANN working group that is currently trying to write a permanent GDPR-compliant Whois policy for ICANN.

Could a new US law make GDPR irrelevant?

Kevin Murphy, August 29, 2018, Domain Policy

Opponents of Whois privacy are pushing for legislation that would basically reverse the impact of GDPR for the vast majority of domain names.

Privacy advocate Milton Mueller of the Internet Governance Project today scooped the news that draft legislation to this effect is being circulated by “special interests” in Washington DC.

He’s even published the draft (pdf).

Mueller does not call out the authors of the bill by name — though he does heavily hint that DomainTools may be involved — saying instead that they are “the same folks who are always trying to regulate and control the Internet. Copyright maximalists, big pharma, and the like.”

I’d hazard a guess these guys may be involved.

The bill is currently called the Transparent, Open and Secure Internet Act of 2018, or TOSI for short. In my ongoing quest to coin a phrase and have it stick, I’m tempted to refer to its supporters as “tossers”.

TOSI would force registries and registrars to publish Whois records in full, as they were before May this year when ICANN’s “Temp Spec” Whois policy — a GDPR Band-aid — came into effect.

It would capture all domain companies based in US jurisdiction, as well as non-US companies that sell domains to US citizens or sell domains that are used to market goods or services to US citizens.

Essentially every company in the industry, in other words.

Even if only US-based companies fell under TOSI, that still includes Verisign and GoDaddy and therefore the majority of all extant domains.

The bill would also ban privacy services for registrants who collect data on their visitors or monetize the domains in any way (not just transactionally with a storefront — serving up an ad would count too).

Privacy services would have to terminate such services when informed that a registrant is monetizing their domains.

But the bill doesn’t stop there.

Failing to publish Whois records in full would be an “unfair or deceptive act or practice” and the Federal Trade Commission would be allowed to pursue damages against registries and registrars that break the law.

In short, it’s a wish-list for those who oppose the new regime of privacy brought in by ICANN’s response to the General Data Protection Regulation.

While it’s well-documented that the US executive branch, in the form of the National Telecommunications and Information Administration, is no fan of GDPR, whether there’s any interest in the US Congress to adopt such legislation is another matter.

Is this an IP lawyer’s pipe-dream, or the start of a trans-Atlantic war over privacy? Stay tuned!

No more free ride for ICANN Fellows?

Kevin Murphy, August 29, 2018, Domain Policy

Newcomers who get free travel to ICANN meetings will have to show they’re serious about participating in the community, under new rules.

ICANN is revamping its Fellowship program to ensure that it’s actually meetings its goals of increasing the pool of mugs knowledgeable volunteers that the community can draw on.

The program, designed to bring in people unable to afford their own in-person meeting attendance, had come in for criticism for not being sufficiently accountable, and perhaps a poor use of money in a time of budget pressure.

It’s not been easy to measure the ratio of valuable ICANN citizens it was creating versus freeloaders who abuse the system for a free busman’s holiday.

Among the key changes being introduced now are requirements for Fellows to attend a minimum number of session-hours per meeting, casually policed by seven “mentors” — selected from and appointed by each supporting organization and advisory committee.

The number of hours required doesn’t appear to be set in stone as yet, with ICANN saying it will work with mentors to arrive at a figure.

While ICANN admits it obviously can’t force Fellows to participate after their first meeting, it plans to make sure returning Fellows can provide documentary evidence that they have engaged on subsequent applications for the program.

The three-meetings-only rule will remain.

The request for post-meeting reports from Fellows will be piloted at the Barcelona meeting in October.

More information of program revamps can be found here.

Microsoft seizes “Russian election hacking” domains

Kevin Murphy, August 21, 2018, Domain Policy

Microsoft has taken control of six domains associated with a hacker group believed to be a part of Russian military intelligence, according to the company.

Company president Brad Smith blogged yesterday that Microsoft obtained a court order allowing it to seize the names, which it believes were to be used to attack institutions including the US Senate.

The domains in question look like they could be used in spear-phishing attacks. The are: my-iri.org, hudsonorg-my-sharepoint.com, senate.group, adfs-senate.services, adfs-senate.email and office365-onedrive.com.

Historical Whois records archived by DomainTools show they were registered last year behind WhoisGuard, the Panama-based privacy service. Now, of course, the Whois records are all redacted due to GDPR.

Smith said that Microsoft believes intended targets besides the Senate also include the International Republican Institute and the Hudson Institute, two conservative think-tanks.

The company believes, though it did not show evidence, that the domains were created by the group it calls “Strontium”.

Strontium is also known as “Fancy Bear”, among other names. It’s believed to be backed by the GRU, Russia’s intelligence agency.

It’s the same group alleged members of which Special Counsel Robert Mueller recently indicted as part of his investigation into Russian meddling in the 2016 US presidential election.

“We have now used this approach 12 times in two years to shut down 84 fake websites associated with this group,” Smith said in his blog post.

He added that Microsoft does not know whether the domains have been used in an attack yet.