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Euro registrars miffed about ICANN privacy delays

Kevin Murphy, February 21, 2014, Domain Registrars

Registrars based in the European Union are becoming increasingly disgruntled by what they see as ICANN dragging its feet over registrant privacy rules.

Some are even refusing to sign the 2013 Registrar Accreditation Agreement until they receive formal assurances that ICANN won’t force them to break their local privacy laws.

The 2013 RAA, which is required if a registrar wants to sell new gTLD domains, requires registrars to keep hold of registrant data for two years after their registrations expire.

Several European authorities have said that this would be illegal under EU privacy directives, and ICANN has agreed to allow registrars in the EU to opt out of the relevant provisions.

Today, Luxembourgish registrar EuroDNS said it asked for a waiver of the data retention clauses on December 2, but has not heard back from ICANN over two months later.

The company had provided ICANN with the written legal opinion of Luxembourg’s Data Protection Agency

In a snippy letter (pdf) to ICANN, EuroDNS CEO Lutz Berneke wrote:

Although we understand that your legal department is solely composed of lawyers educated in US laws, a mere translation of the written guidance supporting our request should confirm our claim and allow ICANN to make its preliminary determination.

EuroDNS has actually signed the 2013 RAA, but says it will not abide by the provisions it has been told would be illegal locally.

Elsewhere in Europe, Ireland’s Blacknight Solutions, said two weeks ago that it had requested its waiver September 17 and had not yet received a pass from ICANN.

“Why is it my problem that ICANN doesn’t understand EU law? Why should our business be impacted negatively due to ICANN’s inability to listen?” CEO Michele Neylon blogged. “[W]hile this entire farce plays out we are unable to offer new top level domains to our clients.”

But while Blacknight is still on the old 2009 RAA, other European registrars seem to have signed the 2013 version some time ago, and are already selling quite a lot of new gTLD domains.

Germany’s United-Domains, for example, appears to be the third-largest new gTLD registrar, if name server records are anything to go by, with the UK’s 123-Reg also in the top ten.

ICANN is currently operating a public comment period on the waiver request of OVH, a French registrar, which ICANN says it is “prepared to grant”.

That comment period is not scheduled to end until February 27, however, so it seems registrars agitated about foot-dragging have a while to wait yet before they get what they want.

EU body tells ICANN that 2013 RAA really is illegal

Kevin Murphy, January 29, 2014, Domain Registrars

A European Union data protection body has told ICANN for a second time — after being snubbed the first — that parts of the 2013 Registrar Accreditation Agreement are in conflict with EU law.

The Article 29 Data Protection Working Party, which is made up of the data protection commissioners in all 28 EU member states, reiterated its claim in a letter (pdf) sent earlier this month.

In the letter, the Working Party takes issue with the part of the RAA that requires registrars to keep hold of customers’ Whois data for two years after their registrations expire. It says:

The Working Party’s objection to the Data Retention Requirement in the 2013 RAA arises because the requirement is not compatible with Article 6(e) of the European Data Protection Directive 95/46/EC which states that personal data must be:

“kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected”

The 2013 RAA fails to specify a legitimate purpose which is compatible with the purpose for which the data was collected, for the retention of personal data of a period of two years after the life of a domain registration or six months from the relevant transaction respectively.

Under ICANN practice, any registrar may request an opt out of the RAA data retention clauses if they can present a legal opinion to the effect that to comply would be in violation of local laws.

The Working Party told ICANN the same thing in July last year, clearly under the impression that its statement would create a blanket opinion covering all EU-based registrars.

But a week later ICANN VP Cyrus Namazi told ICANN’s Governmental Advisory Committee that the Working Party was “not a legal authority” as far as ICANN is concerned.

The Working Party is clearly a bit miffed at the snub, telling ICANN this month:

The Working Party regrets that ICANN does not acknowledge our correspondence as written guidance to support the Waiver application of a Registrar operating in Europe.

the Working Party would request that ICANN accepts the Working Party’s position as appropriate written guidance which can accompany a Registrar’s Data Retention Waiver Request.

It points out that the data protection commissioners of all 28 member states have confirmed that the letter “reflects the legal position in their member state”.

ICANN has so far processed one waiver request, made by the French registrar OVH, as we reported earlier this week.

Weirdly, the written legal opinion used to support the OVH request is a three-page missive by Blandine Poidevin of the French law firm Jurisexpert, which cites the original Working Party letter heavily.

It also cites letters from CNIL, the French data protection authority, which seem to merely confirm the opinion of the Working Party (of which it is of course a member).

EU registrars seem to be in a position here where in order to have the Working Party’s letter taken seriously by ICANN, they have to pay a high street lawyer to endorse it.

First European registrar to get Whois data opt-out

Kevin Murphy, January 28, 2014, Domain Registrars

ICANN plans to give a French registrar the ability to opt out of parts of the 2013 Registrar Accreditation Agreement due to data privacy concerns.

OVH, the 14th-largest registrar of gTLD domains, asked ICANN to waive parts of the RAA that would require it to keep hold of registrant Whois data for two years after it stops having a relationship with the customer.

The company asked for the requirement to be reduced to one year, based on a French law and a European Union Directive.

ICANN told registrars last April that they would be able to opt-out of these rules if they provided a written opinion from a local jurist opining that to comply would be illegal.

OVH has provided such an opinion and now ICANN, having decided on a preliminary basis to grant the request, is asking for comments before making a final decision.

If granted, it would apply to “would apply to similar waivers requested by other registrars located in the same jurisdiction”, ICANN said.

It’s not clear if that means France or the whole EU — my guess is France, given that EU Directives can be implemented in different ways in different member states.

Throughout the 2013 RAA negotiation process, data privacy was a recurring concern for EU registrars. It’s not just a French issue.

ICANN has more details, including OVH’s request and links for commenting, here.

Latest Go Daddy phishing attack unrelated to 2013 RAA

Kevin Murphy, January 6, 2014, Domain Registrars

Fears that the 2013 Registrar Accreditation Agreement would lead to new phishing attacks appear to be unfounded, at least so far.

The 2013 RAA, which came into force at most of the big registrars on January 1, requires registrars to verify the registrant’s email address or phone number whenever a new name is registered.

It was long predicted that this new provision — demanded by law enforcement — would lead to phishers exploiting registrant confusion, obtaining login credentials, and stealing valuable domain names.

Over the weekend, it looked like this prediction had come true, with posts over at DNForum saying that a new Go Daddy scam was doing the rounds and reports that it was related to the 2013 RAA changes.

I disagree. Shane Cultra posted a screenshot of the latest scam on his blog, alongside a screenshot of Go Daddy’s actual verification email, and the two are completely dissimilar.

The big giveaways are the “Whois Data Reminder” banner and “Reminder to verify the accuracy of Whois data” subject line.

The new attack is not exploiting the new 2013 RAA Whois verification requirements, it’s exploiting the 10-year-old Whois Data Reminder Policy, which requires registrars annually to remind their customers to keep their contact details accurate.

In fact, the language of the new scam has been used in phishing attacks against registrants since at least 2010.

That’s not to say the attack is harmless, of course — the attacker is still going to steal the contents of your Go Daddy account if you fall for it.

We probably will see attacks specifically targeting confusion about the new address verification policy in future, but it seems to me that the confusion we’re seeing with the latest scam may be coincidental.

Go Daddy told DI yesterday that the scam site in question had already been shut down. It’s not clear if anyone fell for it while it was live.

Registrars given access to Trademark Clearinghouse

Kevin Murphy, October 5, 2013, Domain Registrars

Accredited registrars on older contracts can now get access to the Trademark Clearinghouse for testing purposes, ICANN announced last night.

Previously, ICANN was only handing out credentials to registrars on the new 2013 Registrar Accreditation Agreement, but many registrars complained that this didn’t give them time to evaluate the TMCH and the RAA at the same time.

ICANN had originally argued that the restriction made sense because the TMCH is used only for new gTLDs, and registrars must have signed the 2013 RAA to sell new gTLD domains.

But feedback from registrars has helped it change its mind. ICANN said:

all ICANN accredited Registrars, not just those that have signed the 2013 Registrar Accreditation Agreement (RAA), will be able to request registration tokens and start testing their systems with the Trademark Clearinghouse database before it must begin its authenticating and verifying services for trademark data.

Instruction for signing up for TMCH testing can be found here.