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Mediators hired as Whois reformers butt heads

Kevin Murphy, September 17, 2018, Domain Policy

ICANN has hired professional mediators to help resolve strong disagreements in the working group tasked with reforming Whois for the post-GDPR world.

Kurt Pritz, chair of the Expedited Policy Development Process for Whois, last week told the group that ICANN has drafted in the Consensus Building Institute, with which it has worked before, to help “narrow issues and reach consensus”.

Three CBI mediators will brief the EPDP group today, and join them when the WG meets face-to-face for the first time at a three-day session in Los Angeles later this month.

Their goal is not to secure any particular outcome, but to help the disparate viewpoints find common ground, Pritz told the group.

It’s been Pritz’s intention to get the mediators in since day one — he knew in advance how divisive Whois policy is — but it’s taken until now to get the contracts signed.

The EPDP WG’s job is to create a new, privacy-conscious, consensus Whois policy that will apply to all gTLD registries and registrars. Its output will replace ICANN’s post-GDPR Temporary Specification for Registration Data, which in turn replaced the longstanding Whois policy attached to all ICANN registry and registrar contracts.

Since the working group first convened in early August — about 500 emails and 24 hours of painful teleconferences ago — common ground has been hard to find, and in fact the EPDP group did not even attempt to find consensus for the first several weeks of discussions.

Instead, they worked on its first deliverable, which was finalized last week, a “triage report” that sought to compile each faction‘s opinion of each section of ICANN’s Temp Spec.

The idea seemed sensible at the time, but with hindsight it’s arguable whether this was the best use of the group’s time.

The expectation, I believe, was that opposing factions would at least agree on some sections of text, which could then be safely removed from future debate.

But what emerged instead was this, a matrix of disagreement in which no part of the Temp Spec did not have have at least one group in opposition: Triage Table

The table is potentially misleading, however. Because groups were presented with a binary yes/no option for each part of the spec, “no” votes were sometimes recorded over minor language quibbles where in fact there was agreement in principle.

By restricting the first few weeks of conversation to the language of the Temp Spec, the debate was arguably prematurely hamstrung, causing precious minutes to trickle away.

And time is important — the EPDP is supposed to deliver its consensus-based Initial Report to the ICANN 63 meeting in Barcelona about five weeks from now.

That’s going to be tough.

What’s becoming increasingly clear to me from the post-triage talks is that the WG’s task could be seen as not much less than a wholesale, ground-up, reinvention of the Whois wheel, recreated with GDPR as the legal framework.

Who is Whois for?

Discussions so far have been quite mind-expanding, forcing some fundamental rethinking of long-held, easy assumptions, at least for this lurker. Here’s an example.

One of the fundamental pillars of GDPR is the notion of “purposes”. Companies that collect private data on individuals have to do so only with specific, enumerated purposes in mind.

The WG has started by discussing registrars. What purpose does a registrar have when it collects Whois data from its registrants?

None whatsoever, it was claimed.

“To execute the contract between the registrant and the registrar, it’s really not necessary for registrars to collect any of this information,” GoDaddy head of policy James Bladel, representing registrars, told the group on its latest call Thursday.

Registrars collect data on their customers (not just contact data, but also stuff like credit card details) for billing and support purposes, but this is not the same as Whois data. It’s stored separately and never published anywhere. While covered by GDPR, it’s not covered by Whois policy.

Whois data is only collected by registrars for third parties’ purposes, whether that third party be a registry, ICANN, a data escrow agent, a cop, or an intellectual property enforcer.

“Other than a few elements such as domain name servers, there is nothing that is collected in Whois that is needed for the registrar to do their business,” At-Large Advisory Committee chair Alan Greenberg told the WG. “All of them are being collected for their availability to third parties, should they need it.”

While this may seem like a trivial distinction, drawing a hard line between the purposes of registries, registrars and ICANN itself on the one hand and law enforcement, cybersecurity and IP lawyers on the other is one of the few pieces of concrete advice ICANN has received from European data protection regulators.

There’s by no means unanimous agreement that the registrars’ position is correct, but it’s this kind of back-to-basics discussion that makes me feel it’s very unlikely that the EPDP is going to be able to produce an Initial Report with anything more than middling consensus by the October deadline.

I may be overly pessimistic, but (mediators or no mediators) I expect its output will be weighted more towards outlining and soliciting public comment on areas of disagreement than consent.

And the WG has not yet even looked in depth at the far thornier issue of “access” — the policy governing when third parties such as IP lawyers will be able to see redacted Whois data.

Parties on the pro-access side of the WG have been champing at the bit to bring access into the debate at every opportunity, but have been

Hey, look, a squirrel!

The WG has also been beset by its fair share of distractions, petty squabbles and internal power struggles.

The issues of “alternates” — people appointed by the various constituencies to sit in on the WG sessions when the principles are unavailable — caused some gnashing of teeth, first over their mailing list and teleconference privileges and then over how much access they should get to the upcoming LA meeting.

Debates about GDPR training — which some say should have been a prerequisite to WG participation — have also emerged, after claims that not every participant appeared clued-in as to what the law actually requires. After ICANN offered a brief third-party course, there were complaints that it was inadequate.

Most recently, prickly Iranian GAC rep Kavouss Arasteh last week filed a formal Ombudsman complaint over a throwaway god-themed pun made by Non-Com Milton Mueller, and subsequently defended by fellow non-resident Iranian Farzaneh Badii, in the Adobe Connect chat room at the September 6 meeting.

Mueller has been asked to apologize.

Empty Whois a threat to the US elections?

Kevin Murphy, September 5, 2018, Domain Policy

Could a lack of Whois records thwart the fight against attempts to interfere in this year’s US elections?

That’s the threat raised by DomainTools CEO Tim Chen in a blog post, and others, this week.

Chen points to recent research by Facebook, based on an investigation by security company FireEye, that linked a large network of bogus news sites and social media accounts to the Iranian state media.

FireEye’s investigation used “historical Whois records”, presumably provided by DomainTools, to connect the dots between various domains and registrants associated with “Liberty Front Press”, a purportedly independent media organization and prolific social media user.

Facebook subsequently found that 652 accounts, pages and groups associated with the network, and removed them from its platform.

The accounts and sites in question were several years old but had been focusing primarily on politics in the UK and US since last year, Facebook said.

Based on screenshots shared by Facebook, the accounts had been used to spread political messages bashing US president Donald Trump and supporting the UK’s staunchly pro-Palestinian opposition leader Jeremy Corbyn.

Google’s research, also inspired by FireEye’s findings and Whois data, linked the network to the state-run Islamic Republic of Iran Broadcasting.

The actions by Google and Facebook come as part of their crackdown on fake news ahead of the US mid-term Congressional elections, this November, which are are largely being seen as a referendum on the Trump presidency.

Because the domains in question predate the General Data Protection Regulation and ICANN’s response to it, DomainTools was able to capture Whois records before they went dark in May.

While the records often use bogus data, registrant email addresses common to multiple domains could be used to establish common ownership.

Historical Whois data for domains registered after May 2018 is not available, which will likely degrade the utility of DomainTools’ service over time.

Chen concluded his blog post, which appeared to be written partly in response to data suggesting that GDPR has not led to a growth in spam, with this:

Domain name Whois data isn’t going to solve the world’s cyberattack problems all on its own, but these investigations, centering on an issue of global importance that threatens our very democracy, likely get severely impaired without it. And this is just the tip of the iceberg, a few uniquely important investigations among the hundreds of thousands of cyberattacks going on all day every day all over the globe by people and organizations that can now hide behind the anonymity inherent in today’s internet. It’s reasonable that domain names used for certain commercial or functional purposes should require transparent registration information. Whois is not a crime.

DomainTools is one of the founders of the new Coalition for a Secure and Transparent Internet, a lobby group devoted to encouraging legislatures to keep Whois open.

Representatives of Facebook and Iran’s government are among the members of the Expedited Policy Development Process on Whois, an emergency ICANN working group that is currently trying to write a permanent GDPR-compliant Whois policy for ICANN.

Fight over Whois access starts early

Kevin Murphy, August 3, 2018, Domain Policy

Starting as they mean to go on? The new ICANN working group on Whois this week saw early, if predictable, divisions on the issue of access to private data in a post-GDPR world.

The so-called Whois EPDP (for Expedited Policy Development Process) held its first teleconference on Wednesday and while not really getting around to the nitty-gritty of policy managed to quickly start squabbling about its schedule and rules of engagement.

It’s already not looking promising that blanket cross-community consensus is going to be reached in the time permitted.

The group is tasked with turning the current Temporary Specification for Whois, which was created by the ICANN board of directors, into a formal consensus policy that in principle has the support of the whole community.

Group chair Kurt Pritz laid out three targets for the group.

First up is a “triage” document, which will basically see the community decide, line by line, what it likes and does not like about the Temp Spec.

In theory, the EPDP could just rubber-stamp the whole shebang and be done with it, but that’s highly unlikely.

Second is an Initial Report, which will include the agreements reached in the triage document and the agreements reached in subsequent discussions.

That’s due in October at ICANN’s meeting in Barcelona, which is ambitious but not necessarily impossible.

The Temp Spec was written with guidance from lawyers and European data protection authorities, so there’s a limit to how far the EPDP can stray, in my view.

Thirdly, and most controversially, is an “Initial Report outlining a proposed model of a system for providing accredited access to non-public Registration Data.”

This is the proposed standardized system that will allow security and intellectual property interests, and possibly others, to see unredacted Whois data like we all could just a few months ago.

Many stakeholder groups are in favor of such a system, but the Non-Commercial Stakeholders Group are decidedly not.

The NCSG, given voice principally by academic Milton Mueller, objected to the Pritz/ICANN plan to start soliciting comments on access from the EPDP group later this month, before the group has come to consensus on the so-called “gating questions”.

The gating questions are rather less thorny issues such as whether the purposes registrars collect personal data as mandated by the Temp Spec are in fact legitimate under the GDPR and what data should be transferred from registrars to their registries.

Mueller said that the gating issues represent a “crisis situation” — the EPDP group has just a few months to come to consensus on which parts of the Temp Spec it agrees with — and that discussions about access can be safely pushed back until later.

Perhaps predicting an impasse in future, he also warned Pritz not to over-sell the level of consensus the group reaches if there are still dissenting voices at the end of the process.

Mueller yesterday told the group that NCSG — there are six members on the EPDP team — will refuse to engage on the access issue until consensus had been found on the gating issues.

But NCSG faced push-back from pro-access groups including the Business Constituency, Governmental Advisory Committee and At-Large Advisory Committee.

Alan Greenberg of the ALAC said access talks are “really important” and intertwined with the gating questions. Groups may change their positions on one set of questions based on the discussions of the other, he said.

As it stands today, the group has been asked to fill out four sets of questionnaires, polling their support for various parts of the Temp Spec, over the next few weeks.

The controversial fourth questionnaire covers the access model, but ICANN staff facilitating the group have assured the NCSG these responses will be essentially sat on until the working group is ready to address them.

The group is planning twice-weekly teleconferences in its effort to get its first and second deliverables ready in time for Barcelona.

These 33 people will decide the future of Whois

Kevin Murphy, July 31, 2018, Domain Policy

The names of the people who will decide the future of global gTLD Whois policy have been revealed.

Twenty-nine of 33 open seats of the GNSO’s Expedited Policy Development Process on the Temporary Specification for gTLD Registration Data are now filled and their occupants known.

The EPDP group is tasked with, in just a few short months, coming up with a permanent replacement for ICANN’s Temporary Specification for Whois in a post-GDPR world.

While 33 might seem like a lot of people, it’s a far cry from the over 100 involved in previous Whois working groups, kept deliberately small in order to meet the EPDP’s aggressive deadlines.

As you might expect, there are some members that we can safely rely on to fight for an interpretation of GDPR weighted heavily towards privacy rights, balanced against many others who will certainly fight for “legitimate purposes” data access rights for law enforcement, security and intellectual property interests.

The makeup of the group is heavily North American, with hardly any representation from Asia or Latin America.

By my count, there are 17 members from North America, seven people based in Europe (one of whom represents the Iranian government), two Africans, and one body each from Australia, Japan, and Argentina.

Contrary to the EPDP charter, and DI’s previous coverage, there are no members of the ccNSO on the group. It also appears as if the two seats reserved for root server operators will go unfilled.

As previously reported, the group is being chaired by Kurt Pritz, who works for the .art registry operator but is best known as a former ICANN senior VP.

These are the other members, grouped by their respective factions.

Registries Stakeholder Group

Alan Woods. He’s Donuts’ senior policy and compliance manager and has been since 2014. Donuts is of course the registry with the largest portfolio of commercial, open gTLDs, running about 300 of them.

Marc Anderson. Verisign’s product manager in charge of systems including SRS and Whois. Whatever policy is ultimately handed down, he’ll be in charge of implementing it at .com and .net, among other TLDs. As the only major example of a “thin” gTLD registry operator, Verisign handles a lot less personal data than any other gTLD registry.

Kristina Rosette. She’s a lawyer with a background in IP, working for Amazon, which holds a portfolio of gTLDs most of which remain unlaunched. An example of the GNSO’s ongoing game of musical chairs, she used to be a leading voice in the Intellectual Property Constituency.

Registrars Stakeholder Group

James Bladel. Vice president of global policy at GoDaddy, which in its implementation of GDPR has erred towards publishing more data, not less. As the largest registrar, GoDaddy is a rare example of a registrar with the resources to make its implementation more granular, allowing it to differentiate between EU and non-EU customers and continue to have a value proposition for its paid-for privacy services.

Matt Serlin. Formerly with brand protection registrar MarkMonitor, he’s the founder of startup rival BrandSight. It probably goes without saying that the brand protection side of the RrSG does not necessarily have the same interests as retail registrars. GDPR does not affect big trademark-holding corporations in terms of their own Whois records (GDPR only applies to “natural persons”), but it does affect their ability to go after cybersquatters.

Emily Taylor. As well as a policy consultant and a former Nominet bigwig, she’s a director of the small UK registrar Netistrar but says “my business interests also cover intellectual property / brand protection, and non-commercial interests such as freedom of expression, privacy and human rights”. She chaired an earlier Whois Review Team, which published a report in 2012 that was ultimately basically ignored by ICANN

Intellectual Property Constituency

Alex Deacon. While recently independent, he still represents the Motion Picture Association of America, one of the biggest copyright interests out there and until April his direct employer.

Diane Plaut. Seemingly a relative newcomer to ICANN, she’s “Global General Counsel and Data Protection and Privacy Officer” for a company called Corsearch, which provides database services for trademark owners. In an April blog post, she wrote that it is “essential” that trademark owners should continue to have access to private Whois data.

Business Constituency

Margie Milam. Head of domain strategy at Facebook, which is currently lobbying ICANN to start forcing registrars to reveal private data to trademark interests, as we reported last week.

Mark Svancarek. Newly installed as “Principal Program Manager – Tech Policy / Internet Governance” at Microsoft, which has said that it thinks privacy is a “fundamental human right”. Make no mistake, however, Microsoft reckons Whois data should carry on being made available to those investigating cybercrime or intellectual property infringement, as it outlined in a recent letter to ICANN (pdf).

Internet Service and Connection Providers Constituency

Esteban Lescano. Partner at the Argentinian law firm Lescano & Etcheverry, which counts online trademark protection as one of many areas of specialization, he’s also director of the policy and legal affairs committee at trade group CABASE, the Argentine Internet Association.

Thomas Rickert. Lawyer Rickert is head of domains at German trade group eco, but perhaps more significantly his law firm is representing Tucows subsidiary EPAG in its lawsuit with ICANN, in which ICANN accuses EPAG of breaching its contract by threatening to stop collecting certain Whois data elements. He’s very much on the pro-privacy side of the debate.

Non-Commercial Stakeholders Group

Stephanie Perrin. President of her own company, Digital Discretion, she consults on privacy issues. Unambiguously on the pro-privacy side of the house.

Ayden Ferdeline. A Germany-based independent consultant, Ferdeline is, like Perrin, firmly pro-privacy.

Milton Mueller. An ICANN veteran, Mueller is a professor at the Georgia Institute of Technology and founder of the Internet Governance Project. About as pro-privacy as it gets.

Johan “Julf” Helsingius. Chairman of BaseN, an “internet of things” services provider, Helsingus has form when it comes to privacy protection. His Wikipedia entry is dominated by his pro-privacy activities, including a 1996 fight against the Church of Scientology, which wanted him to reveal the identities of his customers.

Amr Elsadr. Egyptian consultant Elsadr also has a track record of talking up privacy rights at ICANN.

Farzaneh Badiei. Executive director at the Internet Governance Project and researcher at Georgia Tech, Badiei, alongside colleagues Mueller and Ferdeline, has been regularly vocal about the need for privacy in Whois.

Governmental Advisory Committee

Georgios Tselentis. As the representative of the European Commission, one might reasonably expect Tselentis to be rather pro-GDPR.

Ashley Heineman. She represents the US on the GAC. The US is very strongly of the belief that Whois access should be reinstated for intellectual property and security interests.

Kavouss Arasteh. Iran’s GAC rep, we could be looking at the WG’s deadline wild card here. I’ve no idea what Iran’s position is on GDPR, but there are few topics at ICANN upon which Arasteh has not spoken strongly, and at length.

At-Large Advisory Committee

Alan Greenberg. He chairs the ALAC, which is in favor of a well-regulated accreditation program that allows law enforcement and IP interests to access Whois.

Hadia Elminiawi. Elminiawi works at the National Telecom Regulatory Authority of Egypt. She did not vote on the ALAC position paper on Whois/GDPR.

Security and Stability Advisory Committee

Benedict Addis. Formerly in UK law enforcement, Addis chairs the Registrar of Last Resort, a non-profit registrar that quarantines abusive domain names.

Ben Butler. Director of global policy at GoDaddy, focused on abuse, I wouldn’t expect his position to differ wildly from that of colleague Bladel.

Root Server System Advisory Committee

While two seats have been reserved for the RSSAC, the committee has not yet put any bodies forward to occupy them, presumably because the root server operators don’t collect personal data from registrants and don’t really have a horse in this race.

Liaisons

The ICANN board of directors has two liaisons on the WG — Chris Disspain and Leon Felipe Sanchez. The GNSO Council liaison is Rafik Dammak. There are expected to be two ICANN staff liaisons, but they have not yet been named.

The EPDP mailing list opened up yesterday and will hold its first teleconference tomorrow.

Is the new Whois policy group already doomed to fail?

Kevin Murphy, July 24, 2018, Domain Policy

ICANN’s Generic Names Supporting Organization has set itself extremely aggressive, some might say impossible, targets for its emergency Whois policy work.

The GNSO Council on Thursday approved the charter for a new working group that will attempt to come up with a consensus policy for how to amend the Whois system in light of the EU’s General Data Protection Regulation.

But the vote was not unanimous — three of the six Non-Commercial Stakeholder Group councilors abstained largely because they think intellectual property interests have managed to capture the discussion before it has begun.

The three abstentions were independent consultant Ayden Ferdeline, cybersecurity policy researcher Tatiana Tropina, and privacy consultant Stephanie Perrin.

Tropina said during the Thursday meeting: “I cannot vote ‘yes’ for a document that in my opinion has parts that are not properly worded and, instead of setting the scope of the EPDP [Expedited Policy Development Process] work, set up multiple possibilities to get the work sidetracked.”

She and Ferdeline pointed specifically to section J of the approved charter (pdf), which addresses “reasonable access” to non-public Whois data.

This is the part of the policy work that will decide whether, and to what extent, entities such as trademark owners and cybersecurity researchers will be able to peek behind the curtain of post-GDPR personal data redactions and see who actually owns domain names.

There are several “gating” questions that the working group must answer before it gets to J, however, such as: what data should be collected by registrars, how data transfer to registries should be handled, and are the reasons for this data to be collected all valid?

But when it comes to section J, the abstaining NCSG councilors reckon that the Intellectual Property Community has managed to sneak in the notion that its members should get access to private data as a fait accompli. Section J reads in part:

What framework(s) for disclosure could be used to address (i) issues involving abuse of domain name registrations, including but not limited to consumer protection, investigation of cybercrime, DNS abuse and intellectual property protection, (ii) addressing appropriate law enforcement needs, and (iii) provide access to registration data based on legitimate interests not outweighed by the fundamental rights of relevant data subjects?

Ferdeline said in his abstention:

I believe that Section J includes, first and foremost, questions that unnecessarily expand the scope of this EPDP and put perceived answers — rather than genuine, open ended questions — into this important document. Overall I think this section of the charter’s scope is unnecessary and will not allow the EPDP team to complete their work in a timely manner.

Tropina said J “poses the questions that, first of all, imply by default that issues related to intellectual property protection and consumer protection require the disclosure of personal data”, adding that she was bewildered that IP interests had been lumped in with security concerns:

This wording fails me: as I am criminal lawyer working in the field of frameworks for cybercrime investigation, I do not see why cybercrime investigations are separated from law enforcement needs and go to the same basket with intellectual property protection as they are on a completely different level of legitimate demands

In short, the newly approved EPDP charter has been framed in such a way as to make discussions extremely fractious from the outset, pitting privacy interests against those of the trademark lobby on some of the most divisive wedge issues.

This is problematic given that the working group has an extremely aggressive schedule — its members have not yet even been named and yet it expects to produce its Initial Report shortly after ICANN 63, which ends October 25 this year.

It’s an absurdly short space of time to resolve questions that have dogged ICANN for almost two decades.

Will this pressure to come to agreement against the clock work in favor of the trademark community, or will it doom the policy-making process to deadlock?

Attempting to steer the WG through this minefield will be Kurt Pritz, who was confirmed by the Council as its neutral chair on Thursday, as DI first reported a week ago.

The make-up of the group has also proved contentious.

While it is a GNSO process that would lead to a Consensus Policy binding on all gTLD registries and registrars, the decision has been made to bring in voices from other areas of the community, such as the Country Code Names Supporting Organization, which will not be directly affected by the resulting policy.

There will be 29 members in total, not counting the non-voting chair.

The GNSO gets 18 of these seats at the table, comprising: three registries, three registrars, two IPC members, two ISPs, two Business Constituency members, six NCSG members (which, I imagine would be split between the privacy-focused NCUC and more IP-friendly NPOC).

But also joining the group on an equal footing will be two members of the Root Server System Advisory Committee (I’ve no idea why), two from the Security and Stability Advisory Committee, two from the ccNSO, two from the At-Large Advisory Committee and three from the Governmental Advisory Committee.

The actual individuals filling these seats will be named by their respective constituencies in the next few days, ahead of the first WG meeting July 30.

It has been said that these people could expect to devote north of 30 hours a week (unpaid of course, though any necessary travel will be comp’d) to the discussions.

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