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European privacy watchdog says ICANN’s Whois demands are “unlawful”

Kevin Murphy, September 28, 2012, Domain Policy

European Union privacy officials have told ICANN that it risks forcing registrars to break the law by placing “excessive” demands on Whois accuracy.

In a letter to ICANN yesterday, the Article 29 Working Party said that two key areas in the proposed next version of the Registrar Accreditation Agreement are problematic.

It’s bothered by ICANN’s attempt to make registrars retain data about their customers for up to two years after registration, and by the idea that registrars should re-verify contact data every year.

These were among the requests made by law enforcement, backed up by the Governmental Advisory Committee, that ICANN has been trying to negotiate into the RAA for almost a year.

The letter (pdf) reads:

The Working Party finds the proposed new requirement to re-verify both the telephone number and the e-mail address and publish these contact details in the publicly accessible WHOIS database excessive and therefore unlawful. Because ICANN is not addressing the root of the problem, the proposed solution is a disproportionate infringement of the right to protection of personal data.

The “root cause” points to a much deeper concern the Working Party has.

Whois was designed to help people find technical and operational contacts for domain names, it argues. Just because it has other uses — such as tracking down bad guys — that doesn’t excuse infringing on privacy.

The problem of inaccurate contact details in the WHOIS database cannot be solved without addressing the root of the problem: the unlimited public accessibility of private contact details in the WHOIS database.

It’s good news for registrars that were worried about the cost implications of implementing a new, more stringent RAA.

But it’s possible that ICANN will impose the new requirements anyway, giving European registrars an opt-out in order to comply with local laws.

The letter is potentially embarrassing for the GAC, which seemed to take offense at the Prague meeting this June when it was suggested that law enforcement’s recommendations were not being balanced with the views of privacy watchdogs.

During a June 26 session between the GAC and the ICANN board, Australia’s GAC rep said:

I don’t come here as an advocate for law enforcement only. I come here with an Australian government position, and the Australian government has privacy laws. So you can be sure that from a GAC point of view or certainly from my point of view that in my positions, those two issues have been balanced.

That view was echoed during the same session by the European Commission and the US and came across generally like a common GAC position.

The Article 29 Working Party is an advisory body set up by the EU in 1995. It’s independent of the Commission, but it comprises one representative from the data privacy watchdogs in each EU state.