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ICANN board talking GDPR “litigation”

Kevin Murphy, May 21, 2018, Domain Policy

ICANN’s board of directors is meeting today to discuss its “litigation strategy” concerning the General Data Protection Regulation, the EU privacy legislation due to make Whois unrecognizable come Friday.

Those two words are basically the only item on its agenda for a special board meeting today.

I’ve been unable to squeeze any further information out of ICANN, but I can speculate about a few different things it could mean.

The first thing that springs to mind is a blog post by CEO Goran Marby dated April 12, in which he wrote:

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.

To my knowledge, no additional information on this “legal action in Europe” has ever been released.

Could ICANN be ready to take a data protection authority to court preemptively, as a test case to insulate the industry against enforcement action from DPAs? Your guess is as good as mine at this stage.

Another possibility, still in speculative territory, is that the board will be discussing the many calls from the industry for some kind of legal or financial indemnification against GDPR-related regulatory actions. I’d assign a relatively low probability to that idea.

A third notion that springs to mind, slightly more realistically, is that the board could simply be discussing how ICANN would defend itself from incoming litigation related to its GDPR response.

It usually takes ICANN a few days to post the results of its board meetings, but on important hot topics it’s not hugely unusual to see same-day publication.

ICANN approves messy, unfinished Whois policy

Kevin Murphy, May 18, 2018, Domain Policy

With a week left on the GDPR compliance clock, ICANN has formally approved a new Whois policy that will hit all gTLD registries and registrars next Friday.

The Temporary Specification for gTLD Registration Data represents the first time in its history ICANN has invoked contractual clauses that allow it to create binding policy in a top-down fashion, eschewing the usual community processes.

The policy, ICANN acknowledges, is not finished and needs some work. I would argue that it’s also still sufficiently vague that implementation in the wild is likely to be patchy.

What’s in public Whois?

The policy is clearest, and mostly unchanged compared to previous drafts, when it comes to describing which data may be published in public Whois and which data must be redacted.

If you do a Whois query on a gTLD domain from next week, you will no longer see the name, address, phone/fax number or email address of the registrant, admin or tech contacts.

You will continue to see the registrant’s organization, if there is one, and the country in which they are based, as well as some information about the registrar and name servers.

In future, public RDAP-based Whois databases will have to output “REDACTED FOR PRIVACY” in these fields, but for now they can just be blank.

While the GDPR is only designed to protect the privacy of humans, rather than companies, and only those connected to the European Union, the ICANN policy generally assumes that all registrants will be treated the same.

It will be possible for any registrant to opt out of having their data redacted, if being contactable is more important to them than their privacy.

What about privacy services?

Since the May 14 draft policy, ICANN has added a carve-out for domains that are already registered using commercial privacy/proxy services.

Whois records for those domains are NOT going to change under the new policy, which now has the text:

in the case of a domain name registration where a privacy/proxy service used (e.g. where data associated with a natural person is masked), Registrar MUST return in response to any query full WHOIS data, including the existing proxy/proxy pseudonymized email.

In the near term, this will presumably require registries/registrars to keep track of known privacy services. ICANN is working on a privacy/proxy accreditation program, but it’s not yet live.

So how do you contact registrants?

The policy begins to get more complicated when it addresses the ability to actually contact registrants.

In place of the registrant’s email address in public Whois, registries/registrars will now have to publish an anonymized email address or link to a web-based contact form.

Neither one of these options should be especially complex to implement — mail forwarding is a staple service at most registrars — but they will take time and effort to put in place.

ICANN indicated earlier this week that it may give contracted parties some breathing room to get this part of the policy done.

Who gets to see the private data?

The policy begins to fall apart when it describes granting access to full, unexpurgated, thick Whois records to third parties.

It seems to do a fairly good job of specifying that known quantities such as URS/UDRP providers, escrow providers, law enforcement, and ICANN itself continue to get access.

But it’s fuzzier when it comes to entities that really would like to continue to access Whois data, such as trademark lawyers, security service providers and consumer protection concerns.

While ICANN is adamant that third parties with “legitimate interests” should get access, the new policy does not enumerate with any specificity who these third parties are and the mechanism(s) contracted parties must use to grant such access.

This is what the policy says:

Registrar and Registry Operator MUST provide reasonable access to Personal Data in Registration Data to third parties on the basis of a legitimate interests pursued by the third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the Registered Name Holder or data subject

This appears to give contracted parties the responsibility to make legal judgment calls — balancing the GDPR-based privacy rights of the registrant against the “legitimate interests” of the requester — every time they get a thick Whois request.

The policy goes on to say that when European privacy regulators, the courts, or other legislation or regulation has specifically approved a certain class of requester, ICANN will relay this news to the industry and it will have 90 days to make sure that class gets full Whois access.

But the policy does not specify any formal mechanism by which anyone goes about requesting a thick record.

Do they just phone up the registrar and ask? Does the registrar have to publish a contact address for this purpose? How does the registrar go about confirming the requester is who they say they are? Should they keep white-lists of approved requesters, or approve each request on a domain-by-domain basis? When does the right of a trademark owner outweigh the privacy right of an individual?

None of these questions are answered by the policy, but in a non-binding annex ICANN points to ongoing community work to create an “accreditation and access model”.

That work appears to be progressing at a fair rapid clip, but I suspect that’s largely because the trademarks lawyers are holding the pens and discussions are not following ICANN’s usual consensus-building policy development rules.

When the work is absorbed into the ICANN process, we could be looking at a year or more before something gets finalized.

How will transfers work?

Because Whois is used during the inter-registrar transfer process, ICANN has also had to tweak its Inter-Registrar Transfer Policy to take account of instances where registrars can’t access each other’s databases.

Basically, it’s scrapping the requirement for gaining registrars to obtain a Form of Authorization from the Whois-listed registrant before they start an inbound transfer.

This will remove one hoop registrants have to jump through when they switch registrars (though losing registrars still have to obtain an FOA from them) at the cost of making it marginally easier for domain theft to occur.

What happens next?

ICANN acknowledges, in seven bullet points appended to the policy, that the community has more work to do, mainly on the access/accreditation program.

Its board resolution “acknowledges that there are other implementation items that require further community conversation and that the Board encourages the community to resolve as quickly as possible”.

The board has also asked ICANN staff to produce more explanatory materials covering the policy.

It also temporarily called off its Governmental Advisory Committee consultation, which I wrote about here, after receiving a letter from the GAC.

But the big next step is turning this Temporary Policy into an actual Consensus Policy.

The Temporary Policy mechanism, which has never been used before, is set up such that it has to be renewed by the board every 90 days, up to a maximum of one year.

This gives the GNSO until May 25 next year to complete a formal Policy Development Process. In fact, it will be a so-called “Expedited” PDP or EPDP, that cuts out some of the usual community outreach in order to provide a speedier result.

This, too, will be an unprecedented test of an ICANN policy-making mechanism.

The GNSO will have the Temporary Policy baseline to work from, but the Temporary Policy is also subject to board-level changes so the goalposts may move while the game is being played.

It’s going to be a big old challenge, and no mistake.

No, I don’t get what’s going on with GDPR either

Kevin Murphy, May 16, 2018, Domain Policy

GDPR comes into effect next week, changing the Whois privacy landscape forever, and like many others I still haven’t got a clue what’s going on.

ICANN’s still muddling through a temporary Whois spec that it hopes will shield itself and the industry from fines, special interests are still lobbying for special privileges after May 25, EU privacy regulators are still resisting ICANN’s begging expeditions, and registries and registrars are implementing their own independent solutions.

So what will Whois look like from next Friday? It’s all very confusing.

But here’s what my rotting, misfiring, middle-aged brain has managed to process over the last several days.

1. Not even the ICANN board agrees on the best way forward

For the best part of 2018, ICANN has been working on a temporary replacement Whois specification that it could crowbar into its contracts in order to enforce uniformity across the gTLD space and avoid “fragmentation”, which is seen as a horrific prospect for reasons I’ve never fully understood (Whois has always been fragmented).

The spec has been based on legal advice, community and industry input, and slim guidance from the Article 29 Working Party (the group comprising all EU data protection authorities or DPAs).

ICANN finally published a draft (pdf) of the spec late last Friday, May 11.

That document states… actually, forget it. By the time the weekend was over it and I had gotten my head around it, it had already been replaced by another one.

Suffice it to say that it was fairly vague on certain counts — crucially, what “legitimate purposes” for accessing Whois records might be.

The May 14 version came after the ICANN board of directors spent 16 hours or so during its Vancouver retreat apparently arguing quite vigorously about what the spec should contain.

The result is a document that provides a bit more clarity about that it hopes to achieve, and gets a bit more granular on who should be allowed access to private data.

Importantly, between May 11 and May 14, the document started to tile the scales a little away from the privacy rights of registrants and towards towards the data access rights of those with the aforementioned legitimate purposes for accessing it.

One thing the board could agree on was that even after working all weekend on the spec, it was still not ready to vote to formally adopt it as a Temporary Policy, which would become binding on all registries and registrars.

It now plans to vote on the Temporary Policy tomorrow, May 17, after basically sleeping on it and considering the last-minute yowls and cries for help from the variously impacted parts of the community.

I’ll report on the details of the policy after it gets the nod.

2. ICANN seems to have grown a pair

Tonally, ICANN’s position seems to have shifted over the weekend, perhaps reflecting an increasingly defiant, confident ICANN.

Its weekend resolution asserts:

the global public interest is served by the implementation of a unified policy governing aspects of the gTLD Registration Data when the GDPR goes into full effect.

For ICANN to state baldly, in a Resolved clause, that something is in the “global public interest” is notable, given what a slippery topic that has been in the past.

New language in the May 14 spec (pdf) also states, as part of its justification for continuing to mandate Whois as a tool for non-technical purposes: “While ICANN’s role is narrow, it is not limited to technical stability.”

The board also reaffirmed that it’s going to reject Governmental Advisory Committee advice, which pressured ICANN to keep Whois as close to its current state as possible, and kick off a so-called “Bylaws consultation” to see if there’s any way to compromise.

I may be reading too much into all this, but it seems to me that having spent the last year coming across as a borderline incompetent johnny-come-lately to the GDPR conversation, ICANN’s becoming more confident about its role.

3. But it’s still asking DPAs for a moratorium, kinda

When ICANN asked the Article 29 Working Party for a “moratorium” on GDPR enforcement, to give itself and the industry some breathing space to catch up on its compliance initiatives, it was told no such thing was legally possible.

Not to be deterred, ICANN has fired back with a long list of questions (pdf) asking for assurances that DPAs will not start fining registrars willy-nilly after the May 25 deadline.

Sure, there may be no such thing as a moratorium, ICANN acknowledges, but can the DPAs at least say that they will take into account the progress ICANN and the industry is making towards compliance when they consider their responses to any regulatory complaints they might receive?

The French DPA, the Commission Nationale de L’informatique & Libertés, has already said it does not plan to fine companies immediately after May 25, so does that go for the other DPAs too? ICANN wants to know!

It’s basically another way of asking for a moratorium, but one based on aw-shucks reasonableness and an acknowledgement that Whois is a tricky edge case that probably wasn’t even considered when GDPR was being developed.

4. No accreditation model, yet

There’s no reference in the new spec to an accreditation model that would give restricted, tiered access to private Whois data to the likes of security researchers and IP lawyers.

The board’s weekend resolution gives a nod to ongoing discussions, led by the Intellectual Property Constituency and Business Constituency (and reluctantly lurked on by other community members), about creating such a model:

The Board is aware that some parts of the ICANN community has begun work to define an Accreditation Model for access to personal data in Registration Data. The Board encourages the community to continue this work, taking into account any advice and guidance that Article 29 Working Party or European Data Protection Board might provide on the topic.

But there doesn’t appear to be any danger of this model making it into the Temporary Policy tomorrow, something that would have been roundly rejected by contracted parties.

While these talks are being given resource support by ICANN (in terms of mailing lists and teleconferencing), they’re not part of any formal policy development process and nobody’s under any obligation to stick to whatever model gets produced.

The latest update to the accreditation model spec, version 1.5, was released last Thursday.

It’s becoming a bit of a monster of a document — at 46 pages it’s 10 pages longer than the ICANN temporary spec — and would create a hugely convoluted system in which people wanting Whois access would have to provide photo ID and other credentials then pay an annual fee to a new agency set up to police access rights.

More on that in a later piece.

5. Whois is literally dead

The key technical change in the temporary Whois spec is that it’s not actually Whois at all.

Whois is not just the name given to the databases, remember, it’s also an aging technical standard for how queries and responses are passed over the internet.

Instead, ICANN is going to mandate a switch to RDAP, the much newer Registration Data Access Protocol.

RDAP makes Whois output more machine-readable and, crucially, it has access control baked in, enabling the kind of tiered access system that now seems inevitable.

ICANN’s new temporary spec would see an RDAP profile created by ICANN and the community by the end of July. The industry would then have 135 days — likely a late December deadline — to implement it.

Problem is, with a few exceptions, RDAP is brand-new tech to most registries and registrars.

We’re looking at a steep learning curve for many, no doubt.

6. It’s all a bit of a clusterfuck

The situation as it stands appears to be this:

ICANN is going to approve a new Whois policy tomorrow that will become binding upon a few thousand contracted parties just one week later.

While registries and registrars have of course had a year or so’s notice that GDPR is coming and will affect them, and I doubt ICANN Compliance will be complete assholes about enforcement in the near term, a week’s implementation time on a new policy is laughably, impossibly short.

For non-contracted parties, a fragmented Whois seems almost inevitable in the short term after May 25. Those of us who use Whois records will have to wait quite a bit longer before anything close to the current system becomes available.

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.