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Panic stations as Europe plays hardball on Whois privacy

Kevin Murphy, April 14, 2018, Domain Policy

Hopes that Whois records will continue to be available to broad sections of the internet community appeared dashed this week as European data protection heads ripped holes in ICANN’s plan for the industry to comply with the General Data Protection Regulation.

ICANN CEO Goran Marby warned that Whois faces imminent fragmentation and expressed disappointment that authorities have basically ignored his repeated requests for a moratorium on GDPR enforcement.

The Article 29 Working Party, made up of the heads of data protection authorities of EU member states, told ICANN this week that its so-called “Cookbook” compliance plan is nowhere near detailed enough.

In a letter (pdf), it also strongly hinted that intellectual property interests have little hope of retaining access to Whois contact information after GDPR comes into effect next month.

Any notion that WP29 might tell ICANN that the Cookbook was an over-reaction to GDPR, eschewing too many data elements from public records, was firmly put to bed.

Instead, the group explicitly supported ICANN’s plan to replace email addresses in the public Whois with anonymized addresses or a web-based registrant contact form.

It said it “welcomes the proposal to significantly reduce the types of personal data that shall be made publically [sic] available, as well as its proposal [to] introduce alternative methods to contact registrants”.

It also approved of the plan for a “layered” access plan, under which some entities — law enforcement in particular — would be able to access private contact information under an accreditation program.

But WP29 pooh-poohed the idea, put forward by some in the trademark community, that access to Whois could be restricted merely with the use of an IP address white-list.

It warned that the purposes for such access should be explicitly defined and said that what can be accessed should be tightly controlled.

WP29 does not appear to be a fan of anyone, even accredited users, getting bulk access to private Whois data.

While the group endorsed the idea that law enforcement agencies should be able to access Whois, it failed to provide similar comfort to IP interests, security researchers and other groups with self-declared “legitimate interests” in the data.

In what I’m reading as a veiled attack on the IP lobby, the WP29 letter says:

ICANN should take care in defining purposes in a manner which corresponds to its own organisational mission and mandate, which is to coordinate the stable operation of the Internet’s unique identifier systems. Purposes pursued by other interested third parties should not determine the purposes pursued by ICANN. The WP29 cautions ICANN not to conflate its own purposes with the interests of third parties, nor with the lawful grounds of processing which may be applicable in a particular case.

While it would be fairly easy to argue that giving access to security researchers contributes to “stable operation of the Internet’s unique identifier systems”, I think it would be considerably harder to argue that giving trademark owners an easy way to pursue suspected cybersquatters does the same.

In short, the letter clarifies that, rather than complying too much, ICANN has not gone far enough.

WP29 also roundly ignored ICANN’s request for an enforcement moratorium to give the community enough time to come up with a compliance policy and the industry enough time to implement it, irking ICANN into threatening legal action.

Marby said in a blog post yesterday:

Without a moratorium on enforcement, WHOIS will become fragmented and we must take steps to mitigate this issue. As such, we are studying all available remedies, including legal action in Europe to clarify our ability to continue to properly coordinate this important global information resource. We will provide more information in the coming days.

He said that the WP29 statement puts ICANN at odds with the consensus advice of its Governmental Advisory Committee — which, it should be noted, includes the European Commission and most of the EU member states.

The GAC has told ICANN to “Ensure that the proposed interim model maintains current WHOIS requirements to the fullest extent possible” and to reconsider its plan to remove registrant email addresses from public records.

That’s how stupid the situation has become — the same governments telling ICANN to retain email addresses is also telling it to remove them.

Outside of Europe, the United States government has been explicit that it wants Whois access to remain available.

Marby said that an ICANN delegation will attend a meeting of the WP29 Technology Subgroup in Brussels on April 23 to further discuss the outstanding issues.

In a quick response (pdf) to the WP29 letter, he warned that a fragmented Whois and the absence of a moratorium could spell doom for the smooth functioning of the internet.

We strongly believe that if WHOIS is fragmented, it will have a detrimental impact on the entire Internet. A key function of WHOIS allows those participating in the domain name system and in other aspects of work on the Internet to know who else is working within that system. Those working on the Internet require the information contained within WHOIS to be able to communicate with others working within that system.

Reaction from elsewhere in the community has so far comprised variations of “told you so” and hand-wringing about the impact after May 25.

Michele Neylon, head of the registrar Blacknight, blogged that the letter signaled “game over” for the public Whois.

“Come the end of May, public whois as we know it will be dead,” he wrote.

Academic Farzaneh Badii, executive director of the Internet Governance Project and a leading figure in ICANN’s non-commercial users community, blamed several factors for the current 11th-hour predicament, but mainly the fact that her constituency’s lobbying was ignored for so long.

“The Noncommercial Stakeholders Group was the broken record that everyone perceived as not worth paying attention to. But GDPR got real and ICANN has to deal with it,” she wrote.

Matt Serlin of the IP-centric registrar Brandsight, wrote that the letter was “predictable” and said:

The WHOIS system, as it has been known for two decades, will cease to exist. Unfettered access to registration information for gTLDs is simply not going to be possible going forward after May 25th. Yes, there are still questions as to what the final model ICANN puts forth will be, but it will certainly drastically change how WHOIS will function.

Serlin held out some hope that the unspecified legal action Marby has floated may go some way to extend the May 25 GDPR enforcement date.

The community awaits Marby’s next update with bated breath.

Marby ponders emergency powers to avoid fragmented Whois

Kevin Murphy, April 4, 2018, Domain Policy

ICANN could invoke emergency powers in its contracts to prevent Whois becoming “fragmented” after EU privacy laws kick in next month.

That’s a possibility that emerged during a DI interview with ICANN CEO Goran Marby yesterday.

Marby told us that he’s “cautiously optimistic” that European data protection authorities will soon provide clear guidance that will help the domain industry become compliant with the General Data Protection Regulation, which becomes fully effective May 25.

But he said that a lack of such guidance will lead to a situation where different companies provide different levels of public Whois.

“It’s a a high probability that Whois goes fragmented or that Whois will be in a sort of ‘thin’ model in which very little information is collected and very little information is displayed,” he said. “That’s a sort of worst-case scenario.”

I should note that the interview was conducted yesterday before news broke that Afilias has become the first major gTLD registry to announce its Whois output will be essentially thin — eschewing all registrant contact data — from May 25.

Marby has asked European DPAs for two things.

First, guidance on whether its “Cookbook” proposal for a dramatically scaled-back, GDPR-compliant Whois is in fact GDPR-compliant.

Second, an enforcement moratorium while registries and registrars actually go about implementing the Cookbook.

“If we don’t get guidance that’s clear enough, we will see a fragmented Whois. If we get guidance that is clear enough we can work it out,” Marby said.

A moratorium could enable Whois to carry on in its current state, or something close to it, while ICANN goes about creating a new policy that fits with the DPA’s guidance.

If the DPAs refuse a moratorium, we’re looking at a black hole of indeterminate duration during which nobody — not even law enforcement or self-appointed trademark cops — can easily access full Whois records.

“It’s not something I can do anything about, it’s really in the hands of the DPAs,” Marby said. “Remember that it’s the law.”

While ICANN has expended most of its effort to date on creating a model for the public Whois, there’s a parallel effort to create an accreditation program that would enable organizations with “legitimate purposes” to access full, or at least more complete, Whois records.

It’s the IP lawyers that are driving this effort, primarily, terrified that their ability to hunt down cybersquatters and bootleggers will be diminished come May 25.

ICANN has so far resisted calls to endorse the so-called “Cannoli” draft accreditation model, with Marby publicly saying that it needs cross-community support.

But the organization has committed staff support resources to discussion of Cannoli. There’s a new mailing list and there will be a community conference call this coming Friday at 1400 UTC.

Marby said that he shares the worries of the IP community, adding: “If we get the proper guidance from the DPAs, we will know how to sort out the accreditation model.”

He met with the Article 29 Working Party, comprised of DPAs, last week; the group agreed to put Whois on its agenda for its meeting next week, April 10-11.

The fact that it’s up for discussion is what gives Marby his cautious optimism that he will get the guidance he needs.

Assuming the DPAs deliver, ICANN is then in the predicament of having to figure out a way to enforce, via its contracts, a Whois system that is compliant with the DPAs’ interpretation of GDPR.

Usually, this would require a GNSO Policy Development Process leading to a binding Consensus Policy.

But Marby said ICANN’s board of directors has other options, such as what he called an “emergency policy”.

This is a reference, I believe, to the “Temporary Policies” clauses, which can be found in the Registrar Accreditation Agreement and Registry Agreement.

Such policies can be mandated by a super-majority vote of the board, would have to be narrowly tailored to solve the specific problem at hand, and could be in effect no longer than one year.

A temporary policy could be replaced by a compatible, community-created Consensus Policy.

It’s possible that a temporary policy could, for example, force Afilias and others to reverse their plans to switch to thin Whois.

But that’s perhaps getting ahead of ourselves.

Fact is, the advice the DPAs provide following their Article 29 meeting next week is what’s going to define Whois for the foreseeable future.

If the guidance is clear, the ICANN organization and community will have their direction of travel mapped out for them.

If it’s vague, wishy-washy, and non-committal, then it’s likely that only the European Court of Justice will be able to provide clarity. And that would take many years.

And whatever the DPAs say, Marby says it is “highly improbable” that Whois will continue to exist in its current form.

“The GDPR will have an effect on the Whois system. Not everybody will get access to the Whois system. Not everybody will have as easy access as before,” he said.

“That’s not a bug, that’s a feature of the legislation,” he said. “That’s not ICANN’s fault, it’s what the legislator thought when it made this legislation. It is the legislators’ intention to make sure people’s data is handled in a different way going forward, so it will have an effect.”

The community awaits the DPAs’ guidance with baited breath.

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.

ICANN says Article 29 letter does not give EU registrars privacy opt-out

Kevin Murphy, July 15, 2013, Domain Policy

Registrars based in the European Union won’t immediately be able to opt out of “illegal” data retention provisions in the new 2013 Registrar Accreditation Agreement, according to ICANN.

ICANN VP Cyrus Namazi on Saturday told the Governmental Advisory Committee that a recent letter from the Article 29 Working Party, which comprises the data protection authorities of EU member states, is “not a legal authority”.

Article 29 told ICANN last month that the RAA’s provisions requiring registrars to hold registrant data for two years after the domain expires were “illegal”.

While the RAA allows registrars to opt out of clauses that would be illegal for them to comply with, they can only do so with the confirmation of an adequate legal opinion.

The Article 29 letter was designed to give EU registrars that legal opinion across the board.

But according to Namazi, the letter does not meet the test. In response to a question from the Netherlands, he told the GAC:

We accept it from being an authority, but it’s not a legal authority, is our interpretation of it. That it actually has not been adopted into legislation by the EU. When and if it becomes adopted then of course there are certain steps to ensure that our contracted parties are in line with — in compliance with it. But we look at them as an authority but not a legal authority at this stage.

It seems that when the privacy watchdogs of the entire European Union tell ICANN that it is in violation of EU privacy law, that’s not taken as an indication that it is in fact in violation of EU privacy law.

The European Commission representative on the GAC expressed concern about this development during Saturday’s session, which took place at ICANN 47 in Durban, South Africa.

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