ICANN’s Covid-19 waiver formally appealed

Two reliably regular ICANN meeting attendees have formally asked the Org to change the legal waiver it’s asking everyone to sign if they want to show up in The Hague for ICANN 74 this June.

Michele Neylon of registrar Blacknight Solutions and Eberhard Lisse of .na ccTLD registry Namibian Network Information Center filed an emergency Request for Reconsideration with ICANN last week.

They call the waiver, which absolves ICANN from liability if participants catch Covid-19 even through ICANN’s own gross negligence “unduly broad” and “unreasonable” and “unduly wide and harsh”.

They can’t ask their staff to sign such an all-encompassing waiver, they say.

ICANN’s Board Accountability Mechanisms Committee has already rejected the RfR, saying it doesn’t meet the timing requirements for an emergency request. It will consider it as a regular request in due course, it said.

As expected, ICANN also seems to have fixed the bug I spotted last week that allowed hybrid attendees to register without signing the waiver.

Blacknight objects to ICANN 74 Covid waiver

Irish registrar Blacknight has objected to ICANN’s demand that attendees at its forthcoming 74th public meeting sign a legal waiver over the potential for Covid-19 infections.

CEO Michele Neylon has written (pdf) to his ICANN counterpart and chair Maarten Botterman to complain that the waiver is “excessive” and “unreasonable”.

Neylon said he’d consulted his lawyer and concluded: “I cannot sign this waiver and I obviously cannot ask any of my staff to do so either.”

“[The lawyers] agree that you would want to reduce your liability, but you cannot expect people to grant you a blanket exclusion of liability which includes actual fault,” he wrote.

As I reported earlier in the week, registering for ICANN 74 requires attendees to agree to a waiver which states:

I knowingly and freely assume all risks related to illness and infectious diseases, including but not limited to COVID-19, even if arising from the negligence or fault of ICANN.

The four-day June meeting is set to be the first to have an in-person component — in The Hague, the Netherlands — since the pandemic began two years ago. Zoom participation will also be a prominent feature.

Attendees are strictly expected to be double or triple-vaccinated, wear masks, and socially distance while at the venue. There will also be “health checks” whenever you enter the venue.

Blacknight has no complaint about these precautions, but wants ICANN to reconsider the legal waiver.

Brexit boost for Irish domains

Irish ccTLD .ie saw record growth in 2018 after the registry relaxed its registration rules.
According to IEDR, there were 262,140 .ie domains at the end of the year, an increase of 10.4%.
There were 51,040 new registrations, a 29% increase, the registry said.
Almost 10,000 names are registered to Brits (excluding Northern Ireland), which IEDR chalks down to Brexit, saying:

Interestingly, new .ie registrations from Great Britain increased by 28% in 2018 compared to the previous year, a fact that may correlate with enduring Brexit uncertainty and suggests some migration of British businesses to Ireland.

The Irish Passport Service has reportedly seen a similar increase in business since the Brexit vote.
Irish registrar Blacknight also believes its own pricing promotions and marketing efforts are partly responsible for the increase in .ie reg numbers.
The .ie eligibility rules were changed in March last year to make it simpler to provide evidence of a connection to Ireland.

This is how AppDetex works

A small brand-protection registrar with a big friend caused quite a stir at ICANN 63 here in Barcelona this week, after accusing registrars for the second time of shirking their duties to disclose private Whois data to trademark owners.
AppDetex, which has close ties to Facebook, has sent something like 9,000 Whois requests to registrars over the last several months, then complained to ICANN last week that it only got a 3% response rate.
Registrars cried foul, saying that the company’s requests are too vague to action and sometimes seem farcical, suggesting an indiscriminate, automated system almost designed to be overly burdensome to them.
In chats with DI this week, AppDetex CEO Faisal Shah, general counsel Ben Milam and consultant Susan Kawaguchi claimed that the system is nowhere near as spammy as registrars think, then showed me a demo of their Whois Requester product that certainly seemed to support that claim.
First off, Whois Requester appears to be only partially automated.
Tucows had noted in a letter to ICANN that it had received requests related to domains including lincolnstainedglass.com and grifflnstafford.com, which contain strings that look a bit like the “Insta” trademark but are clearly not cybersquatting.
“That no human reviewed these domains was obvious, as the above examples are not isolated,” Tucows CEO Elliot Noss wrote.
“It is abundantly clear to us that the requests we received were generated by an automated system,” Blacknight CEO Michele Neylon, who said he had received similarly odd requests, wrote in his own letter.
But, according to AppDetex, these assumptions are not correct.
Only part of its service is automated, they said. Humans — either customers or AppDetex in-house “brand analysts” — were involved in sending out all the Whois requests generated via its system.
AppDetex itself does not generate the lists of domains of concern for its clients, they said. That’s done separately, using unrelated tools, by the clients themselves.
It’s possible these could be generated from zone files, watch services, abuse reports or something else. The usage of the domain, not just its similarity to the trademark in question, would also play a role.
Facebook, for example, could generate its own list of domains that contain strings matching, partially matching, or homographically similar to its trademarks, then manually input those domains into the AppDetex tool.
The product features the ability to upload lists of domains in bulk in a CSV file, but Kawaguchi told me this feature has never been used.
Once a domain has been input to main Whois Requester web form, a port 43 Whois lookup is automatically carried out in the background and the form is populated with data such as registrar name, Whois server, IANA number and abuse email address.
At this point, human intervention appears to be required to visually confirm whether the Whois result has been redacted or not. This might require also going to the registrar’s web-based Whois, as some registrars return different results over port 43 compared to their web sites.
If a redacted record is returned, users can then select the trademark at issue from a drop-down (Whois Requestor stores its’ customers trademark information) and select a “purpose” from a different drop-down.
The “purposes” could include things like “trademark investigation” or “phishing investigation”. Each generates a different piece of pre-written text to be used in the template Whois request.
Users can then choose to generate, manually approve, and send off the Whois request to the relevant registrar abuse address. The request may have a “form of authorization” attached — a legal statement that AppDetex is authorized to ask for the data on behalf of its client.
Replies from registrars are sent to an AppDetex email address and fed into a workflow tool that looks a bit like an email inbox.
As the demo I saw was on the live Whois Requester site with a dummy account, I did not get a view into what happens after the initial request has been sent.
Registrars have complained that AppDetex does not reply to their responses to these initial requests, which is a key reason they believe them frivolous.
Shah and Milam told me that over the last several months, if a registrar reply has included a request for additional information, the Whois Requester system has been updated with a new template for that registrar, and the request resent.
This, they said, may account for duplicate requests registrars have been experiencing, though two registrars I put this to dispute whether it fits with what they’ve been seeing.
The fact that human review is required before requests are sent out “just makes it worse”, they also said.

Blacknight calls for Ireland to slash domain prices

Irish registrar Blacknight Solutions has called for its local ccTLD registry to cut the price of .ie domains in order to drive growth.
In a press release, CEO Michele Neylon said that .ie names — typically renewing at over €20 — can cost twice as much as other European ccTLDs.
He said that a recently liberalization of registration rules set out by registry IEDR led to a burst of 29,000 new registrations in the first half of the year.
This relaxation has presumably led to cost savings that could be passed on to consumers, he said.
According to Blacknight, there are 46 .ie domains registered per 1,000 head of population, which ranks Ireland 16th out of 22 European countries.

Facebook clashes with registrars after massive private data request

Facebook is on the warpath, testing the limits of personal data disclosure in the post-GDPR world.
Via an intermediary called AppDetex, the company recently filed 500 requests for non-public Whois contact information with various registrars, covering potentially thousands of domains, and is now complaining to ICANN that almost all of the replies it received were “non-responsive”.
DI has learned that Facebook is not only asking registrars for Whois data on specific domains it believes infringe its trademarks, however. It’s also asking them to provide complete lists of domains owned by the same registrant, along with the Whois data for those domains, something registrars have never been obliged to provide, even pre-GDPR.
It’s now pissed that almost all of its requests were blown off, with registrars giving various reasons they could not provide the data.
AppDetex is a brand protection services firm and ICANN-accredited registrar. It’s built an automated system for generating Whois disclosure requests and sending them to registrars.
Ben Milam, its general counsel, wrote to ICANN last week to urge the organization to come up with, and more importantly enforce, a framework for brand owners to request private Whois data.
The company has stopped short of filing formal complaints against the registrars with ICANN’s compliance division, but Milam said it will in future:

we do plan to file complaints in the future, but not until ICANN has (i) established proper disclosure guidelines for non-public WHOIS requests for the registrar base to follow, and (ii) implemented an enforcement process that will ensure that brand holder requests are being satisfied.

The letter says that only one registrar responded adequately, to three of its disclosure requests. That was FBS Inc, which I believe is Turkey’s largest registrar. Turkey is not in the EU.
One registrar on Facebook’s naughty list is Ireland-based Blacknight Solutions, which received three disclosure requests but did not provide AppDetex with the information it wanted.
Blacknight CEO Michele Neylon shared a copy of one of these requests, which he said was received via email July 2, with DI.
In my view, the request is clearly automated, giving the registrar a deadline to respond 48 hours in the future accurate to the second. It cites five Facebook trademarks — Facebook, FB, Instagram, Oculous and WhatsApp.
At Blacknight’s request, I won’t disclose the domain here, but it begins with the string “insta”. At first glance it’s not an clear-cut case of cybersquatting the Instagram trademark. It’s currently parked, displaying ad links unrelated to Instagram.
The email asks the registrar to turn over the full non-public Whois contact information for the registrant, technical contact and administrative contact, but it goes on to also ask for:

4. All other domain names registered under this registrant’s account or email address
5. All information in requests 1, 2, and 3 for all domains provided in response to request 4

This would increase the volume of Whois records requested by Facebook from 500 to, very probably, thousands.
This reverse-Whois data was not previously available via vanilla registrar-provided Whois, though it may be under successor protocol RDAP. Brand owners would have to use a commercial third-party service such as DomainTools in order to connect a registrant to the rest of his portfolio.
It’s debatable whether registrars will be obliged to provide this reverse-Whois capability on non-public data to brand owners even after RDAP becomes the norm.
The request says Facebook needs the data in order “to investigate and prevent intellectual property infringement and contact infringing parties and relevant service providers” and “to facilitate legal action against the registrant”.
Facebook says it’s entitled to the data under Article 6(1)(f) of the GDPR as it’s “necessary for the purposes of our legitimate interests, namely (1) identifying the registered holder of a domain name and their contact information to investigate and respond to potential trademark infringement and (2) enforcing legal claims.”
Currently, registrars are governed by ICANN’s Temporary Specification for Whois, a GDPR-related Band-Aid designed to last until the ICANN community can create a formal policy.
Access to non-public Whois data is governed by section 4 of the Temp Spec, which reads in part:

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 pursuant to Article 6(1)(f) GDPR.

In the absence of a formal ICANN policy, legal precedent, or specific guidance from data protection authorities, it’s not abundantly clear how registrars are supposed to comply with this clause of the spec, which may explain why Facebook is getting different responses from different registrars.
Neylon said that Blacknight responded to the disclosure requests by asking Facebook to produce an Irish court order.
He said the requests were overly broad, did not provide any contact information for the requester, did not provide a specific complaint against the registrants, and did not specify what privacy safeguards Facebook planned to subject the data to once it was handed over.
It seems Blacknight was not alone. According to AppDetex’s letter to ICANN, at least six other registrars replied denying the requests and saying:

complainant (Facebook) must utilize legal process of a subpoena or court order; complainant must file a UDRP action; complainant must file an action with WIPO; complainant must contact WIPO; and/or complainant’s request has been forwarded to the domain owner.

Milam said (pdf) that he expects the volume of requests to increase and that registrars’ responses will be forwarded to ICANN Compliance to help create a normalized framework for dealing with such requests.

Registrars open floodgate of Whois privacy outrage

A letter-writing campaign orchestrated by the leading domain registrars has resulted in ICANN getting hit with over 8,000 pro-privacy comments in less than a week.
It’s the largest volume of comments received by ICANN on an issue since right-wing Christian activists deluged ICANN with protests about .xxx, back in 2010.
The comments — the vast majority of them unedited template letters — were filed in response to the GNSO Privacy & Proxy Services Accreditation Issues (PPSAI) Working Group Initial Report.
That report attempts to bring privacy and proxy services, currently unregulated by ICANN, under ICANN’s contractual wing.
There are two problematic areas, as far as the registrars are concerned.
The first is the ability of trademark and copyright owners to, under certain circumstances, have the registrant of a privately registered name unmasked.
Upon receiving such a request, privacy services would have 15 days to obtain a response from their customer. They’d then have to make a call as to whether to reveal their contact information to the IP owner or not.
Possibly the most controversial aspect of this is described here:

Disclosure cannot be refused solely for lack of any of the following: (i) a court order; (ii) a subpoena; (iii) a pending civil action; or (iv) a UDRP or URS proceeding; nor can refusal to disclose be solely based on the fact that the request is founded on alleged intellectual property infringement in content on a website associated with the domain name.

In other words, the privacy services (in most cases, also the registrar) would be forced make a judgement on whether web site content is illegal, in the absence of a court order, before removing Whois privacy on a domain.
The second problematic area is an “additional statement” on domains used for commercial activity, appended to the PPSAI report, penned by MarkMonitor on behalf of Facebook, LegitScript, DomainTools, IP attorneys Smith, Gambreall & Russell, and itself.
Those companies believe it should be against the rules for anyone who commercially transacts via their web site to use Whois privacy.
Running ads on a blog, say, would be fine. But asking for, for example, credit card details in order to transact would preclude you from using privacy services.
The PPSAI working group didn’t even approach consensus on this topic, and it’s not a formal recommendation in its report.
Regardless, it’s one of the lynchpins of the current registrar letter-writing campaigns.
A page at SaveDomainPrivacy.org — the site backed by dozens of registrars big and small — describes circumstances under which somebody would need privacy even though they engage in e-commerce.
Home-based businesses, shelters for domestic abuse victims that accept donations, and political activists are all offered up as examples.
Visitors to the site are (or were — the site appears to be down right now (UPDATE: it’s back up)) invited to send a comment to ICANN supporting:

The legitimate use of privacy or proxy services to keep personal information private, protect physical safety, and prevent identity theft
The use of privacy services by all, for all legal purposes, regardless of whether the website is “commercial”
That privacy providers should not be forced to reveal my private information without verifiable evidence of wrongdoing

The content of the site was the subject of a sharp disagreement between MarkMonitor and Tucows executives last Saturday during ICANN 53. I’d tell you exactly what was said, but the recording of the relevant part of the GNSO Saturday session has not yet been published by ICANN.
Another site, which seems to be responsible for the majority of the 8,000+ comments received this week, is backed by the registrar NameCheap and the digital civil rights groups the Electronic Frontier Foundation and Fight For The Future.
NameCheap appears to be trying to build on the reputation it started to create for itself when it opposed the Stop Online Piracy Act a few years ago, going to so far as to link the Whois privacy reforms to SOPA on the campaign web site, which says:

Your privacy provider could be forced to publish your contact data in WHOIS or even give it out to anyone who complains about your website, without due process. Why should a small business owner have to publicize her home address just to have a website?
We think your privacy should be protected, regardless of whether your website is personal or commercial, and your confidential info should not be revealed without due process. If you agree, it’s time to tell ICANN.

The EFF’s involvement seems to have grabbed the attention of many reporters in the general tech press, generating dozens of headlines this week.
The public comment period on the PPSAI initial report ends July 7.
If it continues to attract attention, it could wind up being ICANN’s most-subscribed comment period ever.
Do geeks care about privacy more than Christians care about porn? We’ll find out in a week and a half.

.uk suspension problems worse than I thought

Problems validating the addresses of .uk domain registrants, which caused one registrar to dump the TLD entirely, are broader than I reported yesterday.
Cronon, which does business as Strato, announced last week that it has stopped selling .uk domain names because in more than a third of cases Nominet, the registry, is unable to validate the Whois data.
In many cases the domain is subsequently suspended, causing customer support headaches.
It now transpires that the problems are not limited to .uk second-level names, are not limited to UK registrants, and are not caused primarily by mailing address validation failures.
Michael Shohat, head of registrar services at Cronon, got in touch last night to clarify that most of its affected customers are in fact from its native Germany or from the Netherlands.
All of the affected names are .co.uk names, not .uk SLDs, he added.
And the validation is failing in the large majority of cases not due to Nominet’s inability to validate a mailing address, but rather its inability to validate the identity of the registrant.
“This is where the verification is failing. The database they are using can’t find many of our registrants’ company names,” Shohat said.
“So 30% of our registrations were being put on hold, almost all of them from [Germany] and [the Netherlands], and 90% of them because of the company name. We checked lots of them and in every single case the name of the company was correct, and the address as well,” he said.
Michele Neylon of the ICANN Registrar Stakeholders Group said that Cronon is not the only registrar to have been affected by these issues. Blacknight Solutions, the registrar Neylon runs, has been complaining about the problem since May.
According to Neylon, the Nominet policy causing the issue is its data quality policy, which covers all .uk and .co.uk (etc) names.
The policy itself is pretty vague — Nominet basically says it will work with each individual registrar to determine a baseline of what can be considered a “minimum proportion of valid data”, given the geographic makeup of the registrar’s customer base.
Domains that fail to meet these criteria have a “Data Quality Lock” imposed — essentially a suspension of the domain’s ability to resolve.
Earlier this year, Nominet did backtrack on plans to implement an automatic cancellation of the names after 30 days of non-compliance, following feedback from its registrars.
“It’s disappointing that Cronon have taken this step; we hope they will consider working with us to find a way to move forward,” a Nominet spokesperson added.
She said that the registry has over recent years moved to “more proactive enforcement” of Whois accuracy. She pointed out that Nominet takes on the “lion’s share of the work”, reducing the burden on registrars.
“However, our solution does not include non-UK data sets to cross-reference with, so it is possible that some false positives occur,” she said. “Registrars with a large non-UK registrant bases, who are not accredited channel partners, would be affected more than others.”
An Accredited Channel Partner is the top tier of the three Nominet offers to registrars. It has additional data validation requirements but additional benefits.
While .co.uk domains are not limited to UK-based registrants, all .uk SLD registrants do need to have a UK mailing address in their Whois for legal service.
The company’s inability to validate many non-UK business identities seems to mean .co.uk could also slowly become a UK-only space by the back door.

Dublin picked for ICANN 54

ICANN had selected Dublin to play host to its 54th public meeting, which will be held in October next year.
According to a blog post from Michele Neylon, CEO of Irish registrar Blacknight, the venue will be the imaginatively named The Convention Centre, Dublin.
The primary sponsor will be INEX, the local internet exchange, he reports.
It will be interesting to see if the Irish government bothers to show up. It’s not a member of the GAC and Neylon has frequently criticized it for taking no interest in ICANN affairs.
The meeting will be held from 18 to 22 October, 2015.
Despite Ireland having only one accredited registrar, Dublin houses the nominal headquarters for a big chunk of the registry side of the industry, largely for tax purposes.
Afilias has been there for over a decade and recently Rightside, the Demand Media spin-off, also relocated its HQ there. A number of smaller new gTLD applicants founded in other countries are also “based” in Dublin.
ICANN still hasn’t named the city for ICANN 53, 2015’s mid-year meeting. I assume it will be in either Asia or Latin America. ICANN 51 is in Los Angeles this October, 52 is in Marrakech next February.
Personally, I’m looking forward to visiting Dublin. Despite what a startling number of you (even people who’ve known me for years!) seem to think, I’m not Irish and I’ve never been to Ireland.

Euro registrars miffed about ICANN privacy delays

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.