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Crunch time, again, for Whois access policy

Kevin Murphy, October 14, 2019, Domain Policy

Talks seeking to craft a new policy for allowing access to private Whois data have hit another nodal point, with the community now pressuring the ICANN board of directors for action.

The Whois working group has more or less decided that a centralized model for data access, with ICANN perhaps acting as a clearinghouse, is the best way forward, but it needs to know whether ICANN is prepared to take on this role and all the potential liabilities that come with it.

Acronym time! The group is known as the Whois EPDP WG (for Expedited Policy Development Process Working Group) and it’s come up with a rough Whois access framework it’s decided to call the Standardized System for Access and Disclosure (SSAD).

Its goal is to figure out a way to minimize the harms that Europe’s General Data Protection Regulation allegedly caused to law enforcement, IP owners, security researchers and others by hiding basically all gTLD registration data by default.

The SSAD, which is intended to be as automated as possible, is the working group’s proposed way of handling this.

The “hamburger model” the EPDP has come up with sees registries/registrars and data requestors as the top and bottom of the sandwich (or vice versa) with some yet-to-be-decided organizational patty filling acting as an interface between the two.

The patty would handle access control for the data requests and be responsible for credentialing requestors. It could either be ICANN acting alone, or ICANN coordinating several different interface bodies (the likes of WIPO have been suggested).

Should the burger be made only of mashed-up cow eyelids, or should it incorporate the eyelids of other species too? That’s now the question that ICANN’s board is essentially being posed.

Since this “phase two” work kicked off, it’s taken about five months, 24 two-hour teleconferences, and a three-day face-to-face meeting to get to this still pretty raw, uncooked state.

The problem the working group is facing now is that everyone wants ICANN to play a hands-on role in running a centralized SSAD system, but it has little idea just how much ICANN is prepared to get involved.

The cost of running such a system aside, legislation such as GDPR allows for pretty hefty fines in cases of privacy breaches, so there’s potentially a big liability ask of notoriously risk-averse ICANN.

So the WG has written to ICANN’s board of directors in an attempt to get a firm answer one way or the other.

If the board decided ICANN should steer clear, the WG may have to go back more or less to square one and focus on adapting the current Whois model, which is distributed among registrars and registries, for the post-GDPR world.

How much risk and responsibility ICANN is willing to absorb could also dictate which specific SSAD models the WG pursues in future.

There’s also a view that, with no clarity from ICANN, the chance of the WG reaching consensus is unlikely.

This will be a hot topic at ICANN 66 in Montreal next month.

Expect the Governmental Advisory Committee, which had asked for “considerable and demonstrable progress, if not completion” of the access model by Montreal, to be disappointed.

Airline hit with $230 million GDPR fine

Kevin Murphy, July 8, 2019, Domain Policy

British Airways is to be fined £183.39 million ($230 million) over a customer data breach last year, by far the biggest penalty to be handed out under the General Data Protection Regulation to date.

This story is not directly related to the domain name industry, but it does demonstrate that European data protection authorities are not messing about when it comes to GDPR enforcement.

About 500,000 BA customers had their personal data — including full payment card details — stolen by attackers between June and September last year, the UK Information Commissioner’s Office said today..

It is believed that they obtained the data not by hacking BA’s database, but rather by inserting a script hosted by third-party domain that executed whenever a customer transacted with the site, allowing credentials to be captured in real time.

The ICO said its decision to fine $183.39 million — which amounts to more than 1.5% of BA’s annual revenue — is preliminary and can be appealed by BA.

Under GDPR, which came into effect in May 2018, companies can be fined up to 4% of revenue.

The biggest pre-GDPR fine is reportedly the £500,000 penalty that Facebook was given due to the Cambridge Analytica scandal.

GDPR is of course of concern to the domain industry due to the ongoing attempts to make sure Whois databases are compliant with the laws.

PwC wants to be your Whois gatekeeper

Kevin Murphy, June 11, 2019, Domain Services

PricewaterhouseCoopers has built a Whois access system that may help domain name companies and intellectual property interests call a truce in their ongoing battle over access to private Whois data.

Its new TieredAccess Platform will enable registries and registrars to “outsource the entire process of providing access to non-public domain registration data”.

That’s according to IP lawyer Bart Lieben, partner at the Belgian law firm ARTES, who devised the system and is working with PwC to develop it.

The offering is designed to give trademark lawyers access to the data they lust after, while also reducing costs and mitigating domain name industry liability under the General Data Protection Regulation.

TieredAccess would make PwC essentially the gatekeeper for all requests for private Whois data (at least, in the registries plugged into the platform) coming from the likes of trademark owners, security researchers, lawyers and law enforcement agencies.

At one end, these requestors would be pre-vetted by PwC, after which they’d be able to ask for unredacted Whois records using PwC as an intermediary.

They’d have to pick from one of 43 pre-written request scenarios (such as cybersquatting investigation, criminal probe or spam prevention) and assert that they will only use the data they obtain for the stated purposes.

At the other end, registries and registrars will have adopted a set of rules that specify how such requests should be responded to.

A ruleset could say that cops get more access to data than security researchers, for example, or that a criminal investigation is more important than a UDRP complaint.

PwC has created a bunch of templates, but registrars and registries would be able to adapt these policies to their own tastes.

Once the rules are put in place, and the up-front implementation work has been done to plug PwC into their Whois servers, they wouldn’t have to worry about dealing with Whois requests manually as most are today. The whole lot would be automated.

Not even PwC would have human eyes on the requests. The private data would only be stored temporarily.

One could argue that there’s the potential for abusive or non-compliant requests making it through, which may give liability-nervous companies pause.

But the requests and response metadata would be logged for audit and compliance, so abusive users could be fingered after the act.

Lieben says the whole system has been checked for GDPR compliance, assuming its prefabricated baseline scenarios and templates are adopted unadulterated.

He said that the PwC brand should give clients on both sides “peace of mind” that they’re not breaking privacy law.

If a registrar requires an affidavit before releasing data, the assertions requestors make to PwC should tick that box, he said.

Given that this is probably a harder sell to the domain name industry side of the equation, it’s perhaps not surprising that it’s the requestors that are likely to shoulder most of the cost burden of using the service.

Lieben said a pricing model has not yet been set, but that it could see fees paid by registrars subsidized by the fees paid by requestors.

There’s a chance registries could wind up paying nothing, he said.

The project has been in the works since September and is currently in the testing phase, with PwC trying to entice registries and registrars onto the platform.

Lieben said some companies have already agreed to test the service, but he could not name them yet.

The service was developed against the backdrop of ongoing community discussions within ICANN in the Expedited Policy Development Working group, which is trying to create a GDPR-compliant policy for access to private Whois records.

ICANN Org has also made it known that it is considering making itself the clearinghouse for Whois queries, to allow its contracted parties to offload some liability.

It’s quite possible that once the policies are in place, ICANN may well decide to outsource the gatekeeper function to the likes of PwC.

That appears to be what Lieben has in mind. After all, it’s what he did with the Trademark Clearinghouse almost a decade ago — building it independently with Deloitte while the new gTLD rules were still being written and then selling the service to ICANN when the time came.

The TieredAccess service is described in some detail here.

Governments demand Whois reopened within a year

Kevin Murphy, April 29, 2019, Domain Policy

ICANN’s government advisers wants cops, trademark owners and others to get access to private Whois data in under a year from now.

The Governmental Advisory Committee wants to see “considerable and demonstrable progress, if not completion” of the so-called “unified access model” for Whois by ICANN66 in Montreal, a meeting due to kick off November 4 this year.

The demand came in a letter (pdf) last week from GAC chair Manal Ismail to her ICANN board counterpart Cherine Chalaby.

She wrote that the GAC wants “phase 2” of the ongoing Expedited Policy Development Process on Whois not only concluded but also implemented “within 12 months or less” of now.

It’s a more specific version of the generic “hurry up” advice delivered formally in last month’s Kobe GAC communique.

It strikes me as a ludicrously ambitious deadline.

Phase 2 of the EPDP’s work involves deciding what “legitimate interests” should be able to request access to unredacted private Whois data, and how such requests should be handled.

The GAC believes “legitimate interests include civil, administrative and criminal law enforcement, cybersecurity, consumer protection and IP rights protection”.

IP interests including Facebook want to be able to vacuum up as much data as they want more or less on demand, but they face resistance from privacy advocates in the non-commercial sector (which want to make access as restrictive as possible) and to a lesser extent registries and registrars (which want something as cheap and easy as possible to implement and operate that does not open them up to legal liability).

Ismail’s letter suggests that work could be sped up by starting the implementation of stuff the EPDP group agrees to as it agrees to it, rather than waiting for its full workload to be complete.

Given the likelihood that there will be a great many dependencies between the various recommendations the group will come up with, this suggestion also comes across as ambitious.

The EPDP group is currently in a bit of a lull, following the delivery of its phase 1 report to ICANN, which is expected to approve its recommendations next month.

Since the phase 1 work finished in late February, there’s been a change of leadership of the group, and bunch of its volunteer members have been swapped out.

Volunteers have also complained about burnout, and there’s been some pressure for the pace of work — which included four to five hours of teleconferences per week for six months — to be scaled back for the second phase.

The group’s leadership has discussed 12 to 18 months as a “realistic and desirable” timeframe for it to reach its Initial Report stage on the phase 2 work.

For comparison, it published its Initial Report for phase 1 after only six stressful months on the job, and not only have its recommendations not been implemented, they’ve not even been approved by ICANN’s board of directors yet. That’s expected to happen this Friday, at the board’s retreat in Istanbul.

With this previous experience in mind, the chances of the GAC getting a unified Whois access service implemented within a year seem very remote.

UDRP complaints hit new high at WIPO

Kevin Murphy, March 19, 2019, Domain Policy

The World Intellectual Property Organization handled 3,447 UDRP cases in 2018, a new high for the 20-year-old anti-cybersquatting policy.

The filings represent an increase of over 12% compared to the 3,074 UDRP cases filed with WIPO in 2017. There were 3,036 cases in 2016

But the number of unique domains complained about decreased over the same period, from 6,370 in 2017 to 5,655 domains in 2018, WIPO said today.

The numbers cover only cases handled by WIPO, which is one of several UDRP providers. They may represent increases or decreases in cybersquatting, or simply WIPO’s market share fluctuating.

The numbers seem to indicate that the new policy of redacting Whois information due to GDPR, which came into effect mid-year, has had little impact on trademark owners’ ability to file UDRP claims.

UPDATE: This post was updated a few hours after publication to remove references to the respective shares of the UDRP caseload of .com compared to new gTLDs. WIPO appears to have published some wonky math, as OnlineDomain noticed.

Trademark posse fails to block Whois privacy policy

Kevin Murphy, March 5, 2019, Domain Policy

The ICANN community’s move to enshrine Whois privacy into formal consensus policy is moving forward, despite votes to block it by intellectual property interests.

During a special meeting yesterday, the GNSO Council voted to approve a set of recommendations that would (probably) bring ICANN’s Whois policy into compliance with the General Data Protection Regulation.

But four councilors — Paul McGrady and Flip Petillion of the Intellectual Property Constituency and Marie Pattullo and Scott McCormick of the Business Constituency — voted against the compromise deal.

Their downvotes were not enough to block it from passing, however. It has now been opened for a month of public comments before being handed to the ICANN board of directors for final approval, whereupon it will become ICANN’s newest consensus policy and binding on all contracted parties.

McGrady, an lawyer with Winston Strawn, claimed that the Expedited Policy Development Process working group that came up with the recommendations failed to reach the level of consensus that it had claimed.

“The consensus call was broken,” he said, adding that the EPDP’s final report “reflects consensus where there really wasn’t any.”

The GNSO was due to vote 10 days ago, but deferred the vote at the request of the IPC and BC. McGrady said that both groups had tried to muster up support in their communities for a “yes” vote in the meantime, but “just couldn’t get there”.

Speaking for the BC from a prepared statement, Pattullo (who works for European brand protection group AIM) told the Council:

The report is a step backwards for BC members’ interests compared to the Temp Spec, especially as the legitimate purposes for collecting and processing data are insufficiently precise, and do not include consumer protection, cybercrime, DNS abuse and IP protection.

The Temp Spec is the Temporary Specification currently governing how registries and registrars collect and publish Whois data. It was created as an emergency measure by the ICANN board and is due to expire in May, where it will very probably be replaced by something based on the EPDP recommendations.

In response to the IPC/BC votes, Michele Neylon of the Registrars Constituency and Ayden Férdeline of the Non-Commercial Stakeholders Group read statements claiming that trademark interests had been given substantial concessions during the EPDP talks.

Neylon in particular had some harsh words for the holdout constituencies, accusing them of “bad faith” and pointing out that the EPDP spent thousands of hours discussing its recommendations.

“Our members would want any number of obligations this report contains to be removed, but despite the objections we voiced our support for the final product as a sign of compromise and support for the entire multistakeholder model,” he said.

“Given the objections of certain parts of the community it’s unclear how we can ask this group to carry on with the next phase of its work at the same pace,” he said. “Given the unwillingness of others to participate and negotiate in good faith, how can we ask our reps to spend hours compromising on this work when it’s clear others will simply wait until the last minute and withdraw their consent for hard-fought compromise.”

The EPDP had a hard deadline due to the imminent expiration of the Temp Spec, but that’s not true of its “phase two” work, which will explore possible ways trademark enforcers could get access to redacted private Whois data.

Unfortunately for the IP lobby, there’s a very good chance that this work is going to proceed at a much slower pace than phase one, which wrapped up in basically six months.

During yesterday’s Council call, both Neylon and NCSG rep Tatiana Tropina said that the dedication required of volunteers in phase one — four to five hours of teleconferences a week and intensive mailing list discussions — will not be sustainable over phase two.

They simply won’t be able to round up enough people with enough time to spare, they said.

Coincidentally, neither the registrars nor the non-coms have any strong desire to see a unified access solution developed any time soon, so a more leisurely pace suits them politically too.

It will be up to the EPDP working group, and whoever turns out to be its new chair, to figure out the timetable for the phase two work.

Registrars given six months to deploy Whois killer

Kevin Murphy, March 1, 2019, Domain Policy

ICANN has started the clock ticking on the mandatory industry-wide deployment of RDAP.

gTLD registries and registrars have until August 26 this year to roll out RDAP services, which will one day replace the age-old Whois spec, ICANN said this week.

Registration Data Access Protocol fulfills the same function as Whois, but it’s got better support for internationalization and, importantly given imminent work on Whois privacy, tiered access to data.

ICANN’s RDAP profile was created in conjunction with contracted parties and public comments. The registries and registrars knew it was coming and told ICANN this week that they’re happy for the 180-day implementation deadline to come into effect.

The profile basically specs out what registrars and registries have to show in their responses to Whois (or RDAP, if you’re being pedantic) queries.

It’s based on the current Temporary Specification for Whois, and will presumably have to be updated around May this year, when it is expected that the Temp Spec will be replaced by the spec created by the Whois EPDP.

Expect more Whois accuracy emails under new ICANN policy

Kevin Murphy, February 25, 2019, Domain Policy

Registrars will be obliged to send out even more Whois accuracy emails, under a set of recommendations being considered in ICANN.

Assuming recent recommendations out of the Whois policy working group are accepted, every registrant of a gTLD domain with something listed in the “Organization” field will receive a one-off mail from their registrar asking them to confirm its accuracy.

It’s Recommendation 12 of the EPDP Team Final Report, which was published last week (pdf) by ICANN’s first Expedited Policy Development Process working group.

In general, the Organization field would be redacted in the public Whois under the proposed policy, but registrants will be proactively asked if they want to opt in to having it published.

While registrars can pick their own methods to conduct this outreach, email seem like the most likely medium in the vast majority of cases.

These mails would be sent out the registrants of the over 192 million gTLD domains (if they have something in their Org field) at some point between May 2019, when ICANN is likely to formally adopt the policy, and February 29, 2020, which is EPDP group’s recommended implementation deadline.

In theory, the Org field is perhaps the main indicator of whether a domain is registered to a natural person (and therefore subject to the General Data Protection Regulation) or a legal person (and therefore not).

But it’s not uncommon for registrants or registrars to simply populate the field with the name of the natural-person registrant, even when there’s no actual organization involved.

That’s a GDPR problem, as it means personally identifiable information could leak into the public Whois.

Under the EPDP’s recommendation, registrars would be obliged to reach out to their customers to confirm whether the contents of their Org field are correct, and to ask whether they want that information to be made public.

Opting in would mean the registrar would begin to publish Org data in the public Whois. Ignoring the email or actively refusing publication would mean your registrar would redact or delete this field.

After this mass outreach has finished, registrars would stop redacting the Org field, unless the registrant has not consented to its publication.

For new registrations, registrars would have to show you a prominent warning that the Org data will be published and get your consent for it to do so.

The recommendation is among 29 that were arrived at following over six months of intensive discussions in the EPDP group.

Others we’ve previously reported on include the total elimination of the Admin Contact, making the Technical Contact both smaller and completely optional, and the mandatory introduction of an anonymous means for Whois users to contact registrants.

The recommendations have been submitted to the GNSO Council, which will vote on them March 4.

The EPDP report will then be opened for 30 days of public comment, before being sent to the ICANN board of directors for a full, final vote.

The policy will replace the current Temporary Specification governing Whois, which the board rushed through on an emergency basis last May in order to make the DNS ecosystem as GDPR-compliant as possible when the EU law came into effect.

The EPDP group is expected to shortly enter “phase two” of its work, which will look at whether there should be a unified access mechanism for security and intellectual property interests to snoop on otherwise private Whois data.

Pritz quits Whois privacy group as work enters impossible second phase

Kevin Murphy, February 22, 2019, Domain Policy

Kurt Pritz has quit as chair of the ICANN group working on Whois policy for the GDPR era.

He informed the Whois Expedited Policy Development Process working group in a notice to its mailing list today, saying he was leaving for “a set of personal and professional reasons”.

He said he will stick around until his replacement is selected.

I understand three people had put themselves forward for the role when Pritz was originally selected last July, so there may be a couple of alternates already waiting in the wings.

The announcement comes at a pivotal time for the EPDP, and whoever takes over is going to have to have some seriously masochistic tendencies.

The 30-odd member group just this week put the finishing touches to its “phase one” initial report, which primarily sets out the formal legal purposes for which Whois data is collected and processed across the domain name ecosystem.

That’s going to be voted on by the GNSO Council in a vote delayed from this week to March 4 at the request of the Intellectual Property Constituency and Business Constituency, which want more time to review and comment on it.

For the EPDP WG, it’s soon time to move on to phase two, which will cover the creation (or not) of a unified access mechanism that trademark owners and the like could use to snoop on redacted Whois data.

Even the relatively easy tasks in phase one have been absolute murder on the volunteers and ICANN staff, who have been putting in four or more hours of teleconferences per week since August.

I’ve just been dipping in and out of the mailing list and listening to the odd teleconference, and the level of nitpicking over language has been agonizing to listen to.

Essentially, virtually every debate comes down to a face-off between the IP interests who want to insert as much language concerning access as possible, and those, such as non-commercial users, who oppose them. It sometimes comes across like a proxy war between Facebook and the Internet Governance Project.

More than once, naturally mild-mannered Pritz has had to delegate control to firm-handed mediators drafted in from a specialist outside agency.

Whoever takes over as chair has got his or her work cut out.

Surprise! Most private Whois look-ups come from Facebook

Kevin Murphy, February 20, 2019, Domain Policy

Facebook is behind almost two-thirds of requests for private Whois data, according to stats published by Tucows this week.

Tucows said that it has received 2,100 requests for Whois data since it started redacting records in the public database when the General Data Protection Regulation came into effect last May.

But 65% of these requests came from Facebook and its proxy, AppDetex, that has been hammering many registrars with Whois requests for months.

AppDetex is an ICANN-accredited brand-protection registrar, which counts Facebook as its primary client. It’s developed a workflow tool that allows it, or its clients, to semi-automatically send out Whois requests to registrars.

It sent at least 9,000 such requests between June and October, and has twice sent data to ICANN complaining about registrars not responding adequately to its requests.

Tucows has arguably been the registrar most vocally opposed to AppDetex’s campaign, accusing it of artificially inflating the number of Whois requests sent to registrars for political reasons.

An ICANN policy working group will soon begin to discuss whether companies such as Facebook, as well as security and law enforcement interests, should be able to get credentials enabling them to access private Whois data.

Tucows notes that it sees spikes in Whois requests coinciding with ICANN meetings.

Tucows said its data shows that 92% of the disclosure requests it has received so far come from “commercial interests”, mostly either trademark or copyright owners.

Of this 92%, 85% were identified as trademark interests, and 76% of those were Facebook.

Law enforcement accounted for 2% of requests, and security researchers 1%, Tucows said.