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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.

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US scraps fucking stupid “seven dirty words” ban

Kevin Murphy, September 13, 2018, Domain Registries

Neustar and the US government have agreed to dump their longstanding ban on profanity in .us domains.

A contract change quietly published in July has now made it possible to register .us domains containing the strings “fuck”, “cunt”, “shit”, “piss”, “cocksucker”, “motherfucker” and “tits”.

These are the so-called “seven dirty words” popularized by a George Carlin comedy routine and incorporated into US censorship law via the Supreme Court decision Federal Communications Commission v Pacifica Foundation in 1978.

Neustar banned the strings from .us when it originally won the registry contract from the National Telecommunications and Information Administration in 2002, and kept it upon renewal.

Until recently, it was conducting post-registration reviews of new .us domains and suspending names that used the strings in sweary contexts.

However, a July contract amendment (pdf) has released Neustar from this duty, allowing registrants to register whatever the fuck they want.

According to the Electronic Frontier Foundation, the change came about after itself and the Cyberlaw Clinic at Harvard Law School complained to the government about the suspension of the domain fucknazis.us, which registrant Jeremy Rubin had been using to raise money to fight the extreme right in the US.

That domain was registered in late 2017, but Neustar appears to have been discussing whether to repeal the idiotic ban in various policy groups for at least three years.

When Network Solutions was the sole registrar for .com, .org and .net it too banned the seven dirty words but this practice fizzled out after ICANN introduced competition into the registrar space almost two decades ago.

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Beginning of the end for DomainTools? Court orders it to scrub Whois records

Kevin Murphy, September 13, 2018, Domain Registries

DomainTools has been temporarily banned from collecting and publishing the Whois records of all .nz domains.

A Washington court yesterday handed down a preliminary injunction against the company, after New Zealand’s Domain Name Commission sued it in July for scraping and republishing its Whois in violation of its terms of service.

Notably — especially if you’re involved in the ongoing Whois reform debate — Judge Robert Lasnik’s scathing order (pdf) rubbished DomainTools’ claims that its historical Whois service provides a public interest benefit that outweighs the privacy interests of .nz registrants.

The ruling by its own admission also potentially opens the floodgates for other registries and registrars to obtain injunctions against DomainTools for the own customers.

DomainTools has been “enjoined from accessing the .nz register while DomainTools’ limited license remains revoked and/or publishing any .nz register data DomainTools had stored or compiled in its own databases”.

DNC, the policy body that oversees .nz registry InternetNZ, had alleged that DomainTools had created a “secondary or shadow register” by bulk-downloading Whois records.

Since mid-2016, each .nz Whois record has contained a notice that such behavior is prohibited, and Lasnik agreed that DomainTools must surely have been aware of this.

Lasnik further agreed with DNC that DomainTools’ service is “sabotaging” its efforts to bring more privacy protection to .nz customers; since November last year it has offered individuals the ability to opt out of having their private data published, an offer 23,000 people have taken up.

That was enough for the judge to conclude that DNC’s case had met the “irreparable harm” test required for an injunction.

He was less impressed with DomainTools’ argument that implementing the injunction would take many months and cost it up to $3.5 million.

“Defendant can presumably filter the .nz data using relatively simple database tools,” he wrote, ordering DNC to post a “nominal” $1,000 bond to cover DT’s potential losses.

Lasnik also said the public interest would be better served by permitting registrant privacy than by serving the interests of DomainTools’ cybsecurity and law enforcement customers:

defendant argues that the products it creates from its meticulously collected register data are critical cybersecurity resources and that the public interest would be harmed if the reports provided to government, financial, and law enforcement entities were incomplete because the .nz data were excised. The .nz register is comparatively small, however (approximately 710,000 domains compared with over 135,000,000 .com domains), and the defendant and its customers can access the registration information directly through plaintiff’s website if it appears that a bad actor is using an .nz domain. On the other hand, the .nz registrants’ privacy and security interests are compromised as long as defendant is publishing non-current or historical .nz information out of its database. The Court finds that the public has an interest in the issuance of an injunction.

While arguably limited to historical Whois records, it’s a rare example of judicial commentary on the privacy rights of registrants and may well play into the ongoing debate about Whois in the post-GDPR world.

Even if it turns out not to have wider policy implications, the legal implications for DomainTools are potentially devastating.

While .nz has only about 710,000 domains under management, and is but one of over 1,500 TLDs, DomainTools, DNC and Judge Lasnik all seem to agree that the floodgates for further litigation may have now opened. Lasnik wrote:

defendant argues that a preliminary injunction in this case could start an avalanche of litigation as other registers attempt to protect the privacy of their registrants. If defendant built a business by downloading, storing, and using data from other registers in violation of the terms that governed its access to that data, defendant may be correct — other registers may be encouraged to pursue a breach of contract claim if plaintiff is successful here. It would be ironic, however, if a plaintiff who has shown a likelihood of success and irreparable injury were deprived of preliminary relief simply because defendant may have acted wrongfully toward others as well

DNC said in a statement: “Managers of other countries domain name systems across the world will want to pay attention to the judgment. This may raise confidence to fight their own cases should DomainTools be breaching their terms of use.”

The case has yet to go to court, but the fact that DNC won the injunction indicates that the judge believes it has a likelihood of winning.

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PIR chief: registries should stop stressing about volume

Kevin Murphy, September 11, 2018, Domain Registries

Public Interest Registry has announced some sweeping changes to how it markets .org and its other TLDs, with interim CEO Jay Daley telling DI that there’s too much focus on volumes in the industry today.

PIR is scrapping is volume discount programs after the current batch of incentives expires at the end of the year.

These are the programs that offer rebates to registrars if they hit certain performance targets, all based around newly created domains.

“They particularly favor large registrars, and we don’t think that’s appropriate going forward,” Daley told DI yesterday.

He said that when PIR removed some developed markets from its geographically-targeted discount programs, it saw creates go down but revenue improve.

He suggested that some registries have too much focus on volumes as a benchmark of success, failing to take account of important factors such as renews and abuse rates.

Part of the problem is that success is often measured (by folk including yours truly) by domains under management, rather than TLD health or revenue-per-domain.

“How many people are simply trying to get their numbers up without worrying about the underlying revenue, or taking a very low underlying revenue in order to get their numbers up?” Daley said.

“We’re not in any way somebody who is trying to get our numbers up at all costs, certainly not,” he said.

Another marketing program getting a makeover is pay-per-placement, where PIR would pay for prominent positions in the TLD drop-down menu of registrars storefronts.

These relationships have been based purely on new creates, Daley said, with appropriate “clawback” provisions when registrations turn out to be predominantly abusive.

In future, PIR intends to take a “longer-term, hygiene oriented view” of how its marketing money is used, making better use of data, he said.

“We need to be looking more at the quality of the registrations we get, the level of technical abuse generated by those registrations, looking at the renewal rates that come from those registrations,” he said.

PIR has a new four-strong channel services team that will be leading these changes.

“We are a public interest organization and need to take a public interest view on everything we do,” Daley said. “We need to be looking at our promotions for more than just commercial reasons, we need to be looking at public interest reasons as well.”

Daley, who ran New Zealand’s .nz registry from 2009 until this January, said that the big changes he is overseeing do not reflect an attempt to put his stamp on PIR and take over the CEO office on a permanent basis.

He does not want to run a registry and does not want to relocate to PIR’s headquarters in Virginia, he said.

“I’ve been a registry CEO for nine years,” he said. “I’ve done this and it’s time for me to look at other things.”

He also sits on PIR’s board of directors.

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.CLUB sees spam double after China promotion

Kevin Murphy, September 11, 2018, Domain Registries

.CLUB Domains has seen the amount of spam in .club double a month after seeing a huge registration spike prompted by a deep discount deal.

The registry saw its domains under management go up by about 200,000 names over a few days in early August, largely as a result of a promotion at Chinese registrar AliBaba.

AliBaba sold .club domains for CNY 3 ($0.44) during the promotion, helping it overtake GoDaddy as the top .club registrar.

At that time, spam tracker SpamHaus was reporting that 17.9% of the .club domains it was seeing in the wild were being used in spam.

SpamHaus statToday, that number is 35.4%, almost double the August 7 level. SpamHaus does not publish the actual number of spammy domains for .club; that honor is only bestowed upon the top 10 “bad” TLDs.

Correlation does not equal causation, of course. There could be factors other than the AliBaba promotion that contributed to the increase, but I believe there’s probably a link here.

.CLUB chief marketing officer Jeff Sass told DI:

When registrars have domains “on sale”, there is always the chance that low-cost domains will be attractive to abusers. We monitor abuse proactively, and respond promptly to complaints, as well as monitor our registrar partners collectively and individually.

It’s almost certainly unfair of me to single out fluctuations in .club here, rather than take a comparative look at multiple TLDs. There are certainly many worse TLDs per SpamHaus’ statistics — .men leads among the gTLDs, with 87.2% spam.

But, given the industry truism that cheaper domains leads to more abuse, I think such a large increase correlating with such a successful promotion is a useful data point.

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