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ICANN: tell us how you will break Whois rules

Kevin Murphy, December 11, 2017, Domain Policy

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

Kevin Murphy, December 7, 2017, Domain Policy

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

Kevin Murphy, December 4, 2017, Domain Policy

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, 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

Kevin Murphy, November 21, 2017, Domain Policy

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

Kevin Murphy, November 20, 2017, Domain Policy

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.