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ICANN denies Whois policy “failure” as Marby issues EU warning

Kevin Murphy, October 19, 2020, Domain Policy

ICANN directors have denied that recently delivered Whois policy recommendations represent a “failure” of the multistakeholder model.

You’ll recall that the GNSO Council last month approved a set of controversial recommendations, put forward by the community’s EPDP working group, to create a semi-centralized system for requesting access to private Whois data called SSAD.

The proposed policy still has to be ratified by the ICANN board of directors, but it’s not on the agenda for this week’s work-from-home ICANN 69 conference.

That has not stopped there being some robust discussion, of course, with the board talking for hours about the recommendations with its various stakeholder groups.

The EPDP’s policy has been criticized not only for failing to address the needs of law enforcement and intellectual property owners, but also as a failure of the multistakeholder model itself.

One of the sharpest public criticisms came in a CircleID article by Fabricio Vayra, IP lawyer are Perkins Coie, who tore into ICANN last month for defending a system that he says will be worse than the status quo.

But ICANN director Becky Burr told registries and registrars at a joint ICANN 69 session last week: “We don’t think that the EPDP represents a failure of the multistakeholder model, we actually think it’s a success.”

“The limits on what could be done in terms of policy development were established by law, by GDPR and other data protection laws in particular,” she added.

In other words, it’s not possible for an ICANN working group to create policy that supersedes the law, and the EPDP did what it could with what it was given.

ICANN CEO Göran Marby doubled down, not only agreeing with Burr but passing blame to EU bureaucrats who so far have failed to give a straight answer on important liability issues related to the GDPR privacy regulation.

“I think the EPDP came as far as it could,” he said during the same session. “Some of the people now criticizing it are rightly disappointed, but their disappointment is channeled in the wrong direction.”

He then referred to his recent outreach to three European Commission heads, in which he pleaded for clarity on whether a more centralized Whois model, with more liability shifted away from registrars to ICANN, would be legal.

A failure to provide such clarity would be to acknowledge that the EPDP’s policy proposals are all just fine and dandy, despite what law enforcement and some governments believe, he suggested.

“If the European Union, the European Commission, member states in Europe, or the data protection authorities don’t want to do anything, they’re happy with the situation,” he told registrars and registries.

“If they don’t take actions now, or answer our questions, they’re happy with the way people or organizations get access to the Whois data… it seems that if they don’t change or do anything, they’re happy, and then were are where we are,” he said.

He reiterated similar thoughts at sessions with other stakeholders last week.

But he faced some pushback from members of the pro-privacy Non-Commercial Stakeholders Group, particularly during an entertaing exchange with EPDP member Milton Mueller, who’s unhappy with how Marby has been characterizing the group’s output to the EU.

He specifically unhappy with Marby telling the commissioners: “Should the ICANN Board approve the SSAD recommendations and direct ICANN org to implement it, the community has recommended that the SSAD should become more centralized in response to increased legal clarity.”

Mueller reckons this has no basis in what the EPDP recommended and the GNSO Council approved. It is what the IP interests and governments want, however.

In response, Marby talked around the issue and seemed to characterize it as a matter of interpretation, adding that he’s only trying to provide the ICANN community with the legal clarity it needs to make decisions.

Europe’s top dogs could decide the future of Whois

Kevin Murphy, October 5, 2020, Domain Policy

ICANN is pleading with the European Commission for legal clarity to help solve the two-year-old fight over the future of Whois in the age of GDPR.

CEO Göran Marby has written to three commissioners to ask for a definitive opinion on whether a centralized, mostly automated Whois system would free up registries and registrars from legal liability if their customers’ data is inappropriately disclosed.

It’s a question ICANN has been asking for years, but this time it comes after the ICANN community has come up with a set of policy recommendations that would create something called SSAD, for System for Standardized Access/Disclosure.

SSAD is supported by registries, registrars and non-commercial interests, but has been broadly criticized by governments, intellectual property interests, security experts and others as being not fit for purpose.

While it would create a centralized gateway for funneling Whois queries to contracted parties, and an accreditation system for those making the queries, the decision to accept or refuse the query would still lie with registries and registrars and be largely human-powered.

It’s been described as a glorified, $9 million-a-year ticketing system that will fail to provide better access to Whois to those who say they need it (largely the IP interests).

But registries and registrars say they cannot accept a solution that offloads decision-making to a centralized third party such as ICANN, unless that third party shoulders all the legal liability for mistakes, and whether that’s possible is far from clear this early in the life of GDPR.

As Marby told the commissioners:

Legal clarity could mean the difference between ICANN having a fragmented system that routes most requests for access to non-public registration data from requestors to thousands of individual registries and registrars for a decision, on the one hand, versus ultimately being able to implement a centralized, predictable solution in which decisions about whether or not to disclose non-public registration data in most or all cases could be made consistently, predictably, in a manner that is transparent and accountable to requestors and data subjects alike.

In GDPR lingo, the question is who becomes the “controller” of the data in a centralized system. The controller is the one that could get slapped with huge fines in the event of a privacy breach.

There’s a concept of “successive controllers”, where data is passed through a chain of handlers. ICANN wants clarity on whether, should a registrar send data to an ICANN central gateway, its liability ends there, before the final disclosure decision is made.

It’s asking the European Commission to exercise its authority under the GDPR to force the European Data Protection Board to issue a blanket opinion clarifying these issues, with the expectation that SSAD as currently envisaged could evolve over time to be something more like what the IP folk want.

For ICANN, such a ruling could help quell criticism from its influential advisory bodies, notably the Governmental Advisory Committee, which have come out strongly against the SSAD proposals.

If ICANN chooses to wait for the European Commission and EDPB responses to its new request, it’s highly unlikely we’re going to see the ICANN board fully approve SSAD at its annual general meeting later this month.

Irony alert! Data protection agency complains it can’t get access to private Whois data

Kevin Murphy, May 26, 2020, Domain Policy

A European data protection authority has complained to ICANN after a registrar refused to hand over one of its customers’ private Whois records, citing the GDPR data protection regulation, according to ICANN.

Compounding the irony, the DPA wanted the data as part of its probe into an alleged GDPR violation at the domain in question.

This is the frankly hilarious scenario outlined in a letter (pdf) from ICANN boss Göran Marby to Andrea Jelinek, chair of the European Data Protection Board, last week.

Since May 2018, registrars and registries have been obliged under ICANN rules to redact all personally identifiable information from public Whois records, because of the EU’s General Data Protection regulation.

This has irked the likes of law enforcement and intellectual property owners, who have found it increasingly difficult to discover the identities of suspected bad actors such as fraudsters and cybersquatters.

Registrars are still obliged to hand over data upon request in certain circumstances, but the rules are vague, requiring a judgement call:

Registry and Registrar 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.

While an ICANN working group has been attempting to come up with a clearer-cut set of guidelines, administered by a central body, this so-called SSAD (System for Standardized Access/Disclosure) has yet to come to fruition.

So when an unidentified European DPA recently asked a similarly unidentified non-EU registrar for the Whois data of somebody they suspected of GDPR violations, the registrar told it to get stuffed.

It told the DPA it would “not act against a domain name without any clear and unambiguous evidence for the fraudulent behavior” and said it would respond to legal requests in its own jurisdiction, according to ICANN.

The DPA complained to ICANN, and now ICANN is using that complaint to shame the EDPB into getting off the fence and providing some much-needed clarity about when registrars can declassify Whois data without breaking the law.

Marby wrote that registrars are having to apply their “subjective judgment and discretion” and will most often come down on the side of registrants in order to reduce their GDPR risk. He wrote:

ICANN org would respectfully suggest to the EDPB that a more explicit recognition of the importance of certain legitimate interests, including the relevance of public interests, combined with clearer guidelines on balancing, could address these problems.

ICANN org would respectfully suggest to the EDPB to consider issuing additional specific guidance on this topic to ensure that entities with a legitimate interest in obtaining access to non-public gTLD registration data are able to do so. Guidance would in particular be appreciated on how to balance legitimate interests in access to data with the interests of the data subject concerned

ICANN and the EDPB have been communicating about this issue for a couple of years now, with ICANN looking for some clarity on this largely untested area of law, but the EDPB’s responses to data have been pretty vague and unhelpful, almost as if it doesn’t know what the hell it’s doing either.

Will this latest example of the unintended consequences of GDPR give the Board the kick up the bum it needs to start talking in specifics? We’ll have to wait and see.

Here’s what ICANN’s boss is saying about Whois access now

Kevin Murphy, October 4, 2018, Domain Policy

Should ICANN become the sole source for looking up private domain registrant data? That’s one of the options for the post-GDPR world of Whois currently being mulled over on Waterfront Drive.

ICANN CEO Goran Marby laid out some of ICANN’s current thinking on the future of Whois last week at an occasionally combative meeting in Los Angeles.

One idea would see ICANN act as a centralized gatekeeper for all Whois data. Another could risk ICANN becoming much more tightly controlled by governments.

I’ve listened to the recordings, read the transcripts, chatted to participants, and I’m going to attempt to summarize what I believe is the current state of play.

As regular DI readers know, post-GDPR Whois policy is currently being debated to a tight deadline by an Expedited Policy Development Process working group.

The work has been a tough slog, and there seems to be little hope of the EPDP closing all of its outstanding issues before its first conclusions are due under three weeks from now.

One of the outstanding issues not yet addressed in any depth by the group is the potential creation of a “unified access model” — a standardized way cops, trademark owners, cybersecurity professionals and others could look at the same Whois data they could look at just a few months ago.

While the EPDP has carried on deferring discussion of such a model, ICANN Org has in parallel been beavering away trying to figure out whether it’s even going to be legally possible under the new European privacy law to open up Whois data to the people who want to see it, and it’s come up with some potentially game-changing ideas.

After weeks of conference calls, the EPDP working group — made up of 30-odd volunteers from all sections of the ICANN community — met in LA for three days last week to get down to some intensive face-to-face arguments.

I gather the meeting was somewhat productive, but it was jolted by the publication of an ICANN blog post in which Marby attempted to update the community on ICANN’s latest efforts to get clarity on how GDPR legally interacts with Whois.

Marby wrote that ICANN “wants to understand whether there are opportunities for ICANN, beyond its role as one of the ‘controllers’ with respect to WHOIS or its contractual enforcement role, to be acknowledged under the law as the coordinating authority of the WHOIS system.”

What did ICANN mean by this? While “controller” is a term of art defined in mind-numbing detail by the GDPR, “coordinating authority” is not. So ICANN’s blog post was open to interpretation.

It turns out I was not the only person confused by the post, and on Tuesday afternoon last week somebody from the EPDP team collared Marby in the corridor at ICANN HQ and dragged him into the meeting room to explain himself.

He talked with them for about an hour, but some attendees were still nonplussed — some sounded downright angry — after he left the room.

This is what I gleaned from his words.

No End-Runs

First off, Marby was at pains to point out, repeatedly, that ICANN is not trying to bypass the community’s Whois work.

It’s up to the community — currently the EPDP working group, and in a few weeks the rest of you — to decide whether there should be a unified access model for Whois, he explained.

What ICANN Org is doing is trying to figure out is whether a unified access model would even be legal under GDPR and how it could be implemented if it is legal, he said.

“If the community decides we should have a policy about a unified access model, that’s your decision,” he told the group. “We are trying to figure out the legal avenues if it’s actually possible.”

He talked about this to persons unknown at the European Commission in Brussels last month.

Whatever ICANN comes up with would merely be one input to the community’s work, he said. If it discovers that a unified access model would be totally illegal, it will tell the community as much.

Marby said ICANN is looking for “a legal framework for how can we diminish the contracted parties’ legal responsibility” when it comes to GDPR.

So far, it’s come up with three broad ideas about how this could happen.

The Certification Body Idea

GDPR sections 40 to 43 talk about the concepts of “codes of conduct” and “certification bodies”.

It’s possible that ICANN was referring to the possibility of itself becoming a certification body when it blogged about being a “coordinating authority”. Marby, during the EPDP meeting, unhelpfully used the term “accreditation house”.

These hypothetical entities (as far as I know none yet exist) would be approved by either national data protection authorities or the pan-EU European Data Protection Board to administer certification schemes for companies that broadly fall into the same category of data processing businesses.

It seems to be tailor-made for ICANN (though it wasn’t), which already has accreditation of registries and registrars as one of its primary activities.

But this legal avenue does not appear to be a slam-dunk. ICANN would presumably have to persuade a DPA or two, or the EDPB, that giving third parties managed access to citizens’ private data is a good thing.

You’d think that DPAs would be dead against such an idea, but the EU members of ICANN’s Governmental Advisory Committee have put their names to advice stating that Whois should remain accessible under certain circumstances, so it’s not impossible they could see it ICANN’s way.

The C.R.A.P. Idea

Marby’s second idea for taking some of the GDPR burden off the shoulders of contracted parties is to basically make ICANN a proxy, or man-in-the-middle, for Whois queries.

“What would happen if ICANN Org legally is the only place you can ask a question through?” he said. “And the only ones that the contracted parties actually can answer a question to would be ICANN Org? Would that move the legal responsibility away from the contracted parties to ICANN Org?”

In many ways, this is typical domain industry tactics — if there’s a rule you don’t want to follow, pass it off to a proxy.

This model was referred to during the session by EPDP members as the “hub and spoke” or “starfish”. I think the starfish reference might have been a joke.

Marby, in a jocular callback to the “Calzone” and “Cannoli” Whois proposals briefly debated in the community earlier this year, said that this model had a secret ICANN-internal code-name that is “something to do with food”.

Because whenever I’ve tried to coin a phrase in the past it has never stuck, I figure this time I may as well go balls-out and call it the “Cuisine-Related Access Plan” for now, if for no other reason than the acronym will briefly annoy some readers.

Despite the name I’ve given it, I don’t necessarily dislike the idea.

It seems to be inspired by, or at least informed by, side-channel communications between Marby and the Intellectual Property Constituency and Business Constituency, which are both no doubt mightily pissed off that the EPDP has so far proven surprisingly resilient to their attempts to get Whois access into the policy discussions as early as possible.

Two months ago, a few influential IP lawyers proposed to Marby (pdf) a centralized Whois model in which registrars collect data from registrants then pass it off to ICANN, which would be responsible for deciding who gets to see it.

Forget “thin” versus “thick” Whois — this one would be positively, arguably dangerously, obese. Contracted parties would be relegated to “processors” of private data under GDPR, with ICANN the sole “controller”.

Benefits of this would include, these lawyers said, reducing contracted parties’ exposure to GDPR.

It’s pretty obvious why the IP lobby would prefer this — ICANN is generally much more amenable to its demands than your typical registry or registrar, and it would very probably be easier to squeeze data out of ICANN.

While Marby specifically acknowledged that ICANN has taken this suggestion as one of its inputs — and has run it by the DPAs — he stopped well short of fully endorsing it during last week’s meeting in LA.

He seemed to instead describe a system whereby ICANN acts as the gatekeeper to the data, but the data is still stored and controlled at the registry or registrar, saying: “We open a window for access to the data so the data is still at the contracted parties because they use that data for other reasons as well”.

The Insane Idea

The third option, which Marby seemed to characterize as the least “sane” of the three, would be to have Whois access recognized by law as a public interest, enabling the Whois ecosystem to basically ignore GDPR.

Remember, back on on GDPR Day, I told you about how the .dk ccTLD registry is carrying on publishing Whois as normal because a Danish law specifically forces it to?

Marby’s third option seems to be a little along those lines. He specifically referred to Denmark and Finland (which appears to have a similar rule in place) during the LA session.

If I understand correctly, it seems there’d have to be some kind of “legal action” in the EU — either legislation in a member state, or perhaps something a little less weighty — that specifically permitted or mandated the publication of otherwise private Whois data in gTLD domains.

Marby offered trademark databases and telephone directories as examples of data sets that appear to be exempt from GDPR protection due to preexisting legislation.

One problem with this third idea, some say, is that it could bring ICANN policy under the direct jurisdiction of a single nation state, something that it had with the US government for the best part of two decades and fought hard to shake off.

If ICANN was given carte blanche to evade GDPR by a piece of legislation in, say, Lithuania, would not ICANN and its global stakeholders forever be slaves to the whims of the Lithuanian legislature?

And what if that US bill granting IP interests their Whois wet dream passes onto the statute books and ICANN finds itself trapped in a jurisdictional clusterfuck?

Oh, my.

Fatuous Conclusion For The Lovely People Who Generously Bothered To Read To The End

I’m not a lawyer, so I don’t pretend to have a comprehensive understanding of any of this, but to be honest I’m not convinced the lawyers do either.

If you think you do, call me. I want to hear from you. I’m “domainincite” on Skype. Cheers.

Euro-Whois advice still as clear as mud

Kevin Murphy, July 6, 2018, Domain Policy

European privacy chiefs have again weighed in to the ongoing debate about GDPR and Whois, offering another thin batch of vague advice to ICANN.

The European Data Protection Board, in its latest missive (pdf), fails to provide much of the granular “clarity” ICANN has been looking for, in my view.

It does offer a few pieces of specific guidance, but it seems to me that the general gist of the letter from EDPB chair Andrea Jelinek to ICANN CEO Goran Marby is basically: “You’re on your own buddy.”

If the question ICANN asked was “How can we comply with GDPR?” the answer, again, appears to be generally: “By complying with GDPR.”

To make matters worse, Jelinek signs off with a note implying that the EDPB now thinks that it has given ICANN all the advice it needs to run off and create a GDPR-compliant accreditation system for legitimate access to private Whois data.

The EDPB is the body that replaced the Article 29 Working Party after GDPR came into effect in May. It’s made up of the data protection authorities of all the EU member states.

On the accreditation discussion — which aims to give the likes of trademark owners and security researchers access to Whois data — the clearest piece of advice in the letter is arguably:

the personal data processed in the context of WHOIS can be made available to third parties who have a legitimate interest in having access to the data, provided that appropriate safeguards are in place to ensure that the disclosure is proportionate and limited to that which is necessary and the other requirements of GDPR are met, including the provision of clear information to data subjects.

That’s a fairly straightforward statement that ICANN is fine to go ahead with the creation of an accreditation model for third parties, just as long as it’s quite tightly regulated.

But like so much of its advice, it contains an unhelpful nested reference to GDPR compliance.

The letter goes on to say that logging Whois queries should be part of these controls, but that care should be taken not to tip off registrants being investigated by law enforcement.

But it makes no effort to answer Marby’s questions (pdf) about who these legit third-parties might be and how ICANN might go about identifying them, which is probably the most important outstanding issue right now.

Jelinek also addresses ICANN’s lawsuit against Tucows’ German subsidiary EPAG, and I have to disagree with interpretations of its position published elsewhere.

The Register’s Kieren McCarthy, my Chuckle Brother from another Chuckle Mother, reckons the EDPB has torpedoed the lawsuit by “stating clearly that it cannot force people to provide additional ‘admin’ and ‘technical’ contacts for a given domain name”.

Under my reading, what it actually states is that registrants should be able to either use their own contact data, or anonymized contact information identifying a third party, in these records.

The EDPB clearly anticipates that admin and technical contacts can continue to exist, as long as they contain non-personal contact information such as “admin@example.com”, rather than “kevin@example.com”.

That’s considerably more in line with ICANN’s position than that of Tucows, which wants to stop collecting that data altogether.

One area where EDPB does in fact shoot down ICANN’s new Whois policy is when it comes to data retention.

The current ICANN contracts make registrars retain data for two years, but the EDPB notes that ICANN does not explain why or where that number comes from (I hear it was “pulled out of somebody’s ass”).

The EDPB says that ICANN needs to “re-evaluate the proposed data retention period of two years and to explicitly justify and document why it is necessary”.

Finally, the EDPB weighs in on the issue of Whois records for “legal persons” (as opposed to “natural persons”). It turns out their Whois records are not immune to GDPR either.

If a company lists John Smith and john.smith@example.com in its Whois records, that’s personal data on Mr Smith and therefore falls under GDPR, the letter says.

That should provide a strong incentive for registries and registrars to stop publishing potentially personal fields, if they’re still doing so.