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ICANN’s GDPR lawsuit bounced up to appeals court

Kevin Murphy, July 24, 2018, Domain Policy

ICANN’s lawsuit against Tucows’ German subsidiary EPAG has been bounced up to a higher court in Cologne.

The suit seeks to force Tucows to continue to collect the Admin-C and Tech-C fields of the Whois spec, something which is required by the Registrar Accreditation Agreement but which Tucows argues would force it to breach the General Data Protection Regulation.

The court of first instance denied ICANN’s application for an injunction.

ICANN then appealed, suggesting that the case should be referred to the European Court of Justice for a definitive answer.

Instead, the Bonn “Regional Court” has referred the case to the “Higher Regional Court” in Cologne. ICANN said the ECJ referral is still a possibility, however.

The lower court did not change its original ruling, but nor did it consider ICANN’s new arguments, which will transfer to the higher court’s attention, according to ICANN.

If you want a migraine to match mine, you can read an ICANN-provided English translation of the latest ruling here (pdf).

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Neustar swaps out CEO, PIR looking for new CEO

There are to be changes at the top at two of the industry’s stalwarts.

Neustar has announced that eight-year CEO Lisa Hook has stepped aside to be replaced by Charles Gottdiener, who comes from the world of private equity.

He was most recently COO and MD at Providence Equity Partners.

Hook, who became CEO in 2010, will remain on the Neustar board of directors.

Neustar, which manages .biz, .co and many dot-brand gTLDs, is now owned by private equity group Golden Gate Capital, with a minority ownership by Singapore-based investor GIC, following a $2.9 billion deal last year.

Meanwhile, Public Interest Registry has started advertising for a new CEO of its own, following the mysterious resignation of Brian Cute in May. PIR runs .org and related gTLDs.

PIR said its new boss will need “excellent organizational, strategic planning, financial management and diplomatic skills”.

If it sounds like you, you have a few days to get your application in.

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Is the new Whois policy group already doomed to fail?

Kevin Murphy, July 24, 2018, Domain Policy

ICANN’s Generic Names Supporting Organization has set itself extremely aggressive, some might say impossible, targets for its emergency Whois policy work.

The GNSO Council on Thursday approved the charter for a new working group that will attempt to come up with a consensus policy for how to amend the Whois system in light of the EU’s General Data Protection Regulation.

But the vote was not unanimous — three of the six Non-Commercial Stakeholder Group councilors abstained largely because they think intellectual property interests have managed to capture the discussion before it has begun.

The three abstentions were independent consultant Ayden Ferdeline, cybersecurity policy researcher Tatiana Tropina, and privacy consultant Stephanie Perrin.

Tropina said during the Thursday meeting: “I cannot vote ‘yes’ for a document that in my opinion has parts that are not properly worded and, instead of setting the scope of the EPDP [Expedited Policy Development Process] work, set up multiple possibilities to get the work sidetracked.”

She and Ferdeline pointed specifically to section J of the approved charter (pdf), which addresses “reasonable access” to non-public Whois data.

This is the part of the policy work that will decide whether, and to what extent, entities such as trademark owners and cybersecurity researchers will be able to peek behind the curtain of post-GDPR personal data redactions and see who actually owns domain names.

There are several “gating” questions that the working group must answer before it gets to J, however, such as: what data should be collected by registrars, how data transfer to registries should be handled, and are the reasons for this data to be collected all valid?

But when it comes to section J, the abstaining NCSG councilors reckon that the Intellectual Property Community has managed to sneak in the notion that its members should get access to private data as a fait accompli. Section J reads in part:

What framework(s) for disclosure could be used to address (i) issues involving abuse of domain name registrations, including but not limited to consumer protection, investigation of cybercrime, DNS abuse and intellectual property protection, (ii) addressing appropriate law enforcement needs, and (iii) provide access to registration data based on legitimate interests not outweighed by the fundamental rights of relevant data subjects?

Ferdeline said in his abstention:

I believe that Section J includes, first and foremost, questions that unnecessarily expand the scope of this EPDP and put perceived answers — rather than genuine, open ended questions — into this important document. Overall I think this section of the charter’s scope is unnecessary and will not allow the EPDP team to complete their work in a timely manner.

Tropina said J “poses the questions that, first of all, imply by default that issues related to intellectual property protection and consumer protection require the disclosure of personal data”, adding that she was bewildered that IP interests had been lumped in with security concerns:

This wording fails me: as I am criminal lawyer working in the field of frameworks for cybercrime investigation, I do not see why cybercrime investigations are separated from law enforcement needs and go to the same basket with intellectual property protection as they are on a completely different level of legitimate demands

In short, the newly approved EPDP charter has been framed in such a way as to make discussions extremely fractious from the outset, pitting privacy interests against those of the trademark lobby on some of the most divisive wedge issues.

This is problematic given that the working group has an extremely aggressive schedule — its members have not yet even been named and yet it expects to produce its Initial Report shortly after ICANN 63, which ends October 25 this year.

It’s an absurdly short space of time to resolve questions that have dogged ICANN for almost two decades.

Will this pressure to come to agreement against the clock work in favor of the trademark community, or will it doom the policy-making process to deadlock?

Attempting to steer the WG through this minefield will be Kurt Pritz, who was confirmed by the Council as its neutral chair on Thursday, as DI first reported a week ago.

The make-up of the group has also proved contentious.

While it is a GNSO process that would lead to a Consensus Policy binding on all gTLD registries and registrars, the decision has been made to bring in voices from other areas of the community, such as the Country Code Names Supporting Organization, which will not be directly affected by the resulting policy.

There will be 29 members in total, not counting the non-voting chair.

The GNSO gets 18 of these seats at the table, comprising: three registries, three registrars, two IPC members, two ISPs, two Business Constituency members, six NCSG members (which, I imagine would be split between the privacy-focused NCUC and more IP-friendly NPOC).

But also joining the group on an equal footing will be two members of the Root Server System Advisory Committee (I’ve no idea why), two from the Security and Stability Advisory Committee, two from the ccNSO, two from the At-Large Advisory Committee and three from the Governmental Advisory Committee.

The actual individuals filling these seats will be named by their respective constituencies in the next few days, ahead of the first WG meeting July 30.

It has been said that these people could expect to devote north of 30 hours a week (unpaid of course, though any necessary travel will be comp’d) to the discussions.

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auDA chair defends $9 million windfall as no-confidence vote looms

Kevin Murphy, July 18, 2018, Domain Policy

The chair of .au registry auDA has appealed to its membership for calm ahead of a vote of no confidence in himself, the CEO, and two of his fellow directors.

Chris Leptos yesterday defended the AUD 12 million ($9 million) windfall the organization has received as a result of its transition from long-term registry back-end Neustar to rival Afilias.

By opening the back-end contract to competition, and going with a bid far cheaper than the incumbent’s historical pricing, auDA saved itself a tonne of cash.

Some members reckon the money, which has been placed in a “marketing and innovation fund”, should have instead be returned to registrants via far lower prices for .au domains.

Leptos said the money was better used to promote .au rather than disappearing to the coffers of the back-end provider, writing;

What is most surprising to me is that a small number of members are criticising the new $12 million Marketing and Innovation Fund that will be used to grow the .au namespace. The fact is that auDA now has more funds, and those funds are being ploughed back into lower wholesale prices, and programs that will benefit participants in the .au namespace, rather than benefiting the private owners of the former registry operator. On any reasoned analysis, this is a good thing.

He assured disgruntled members that their concerns about this and other matters are being listened to, but noted the diversity of views among the membership.

Some members say auDA is not listening to their concerns. I can assure you that auDA is listening to its members and stakeholders at both management level and board level. The reality, however, is that auDA needs to balance the requirements of many members and stakeholders who disagree among themselves.

Leptos and two other directors are facing a vote to fire them from the board on July 27. CEO Cameron Boardman faces a no-confidence vote the same day,

The meeting was scheduled following a petition of members orchestrated at Grumpier.com.au, which managed to get signatures from over 5% of auDA’s then 320-odd members.

The Grumpies are currently trying to crowd-fund AUD 4,650 to pay for legal and other fees associated with this meeting. At time of writing, they’re about half-way there.

They’re also unhappy with auDA’s transparency, and with moves such as the currently delayed plan to sell direct second-level .au domains.

Leptos yesterday urged members to vote against the four resolutions, saying that the organization should not be “distracted” from implementing reforms recently mandated by the Australian government following a review.

auDA recently received 955 new membership applications — a four-fold increase in its member base — largely as a result of hundreds of sign-ups from staff at Afilias and the largest .au registrars. These people will not be approved in time to vote at the July 27 meeting.

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Swiss registry gets more traffic than Google, kinda

Switch, the Swiss ccTLD registry, has started publishing a monthly list of the .ch domains with the most DNS traffic, a list that Switch itself currently tops.

The list ranks the top 1,000 .ch domains by the number of DNS resolvers that have queried them over the course of a calendar month.

By that measure, switch.ch is the runaway number one, with 792,958 resolvers. That’s a long way ahead of Google’s google.ch, which comes in at #4 with 529,846 resolvers.

It seems pretty clear that it’s traffic to Switch’s name servers that is likely responsible for its comprehensive lead.

That’s underlined by the composition of the rest of the top end of the list, which is dominated by registrars and hosting companies.

At #2 is the brand-protection registrar Com Laude, a rank seemingly earned due to the fact that the registrar hosts many of its clients’ high-traffic domains (most of which are .com names) on, among others, a comlaude.ch name server.

Switch said its data is collected from its two primary nic.ch name servers and covers all types of traffic. Other such rankings, such as Alexa, measure only web traffic.

By counting the number of unique IP addresses doing DNS queries over the course of a month, Switch said it avoids pitfalls associated with low time-to-live (TTL) settings that could occur if it was counting the number of queries.

More details on its methodology can be found here. The data itself, which goes back 12 months, can be freely downloaded as CSV files here.

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