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Sedo’s cunning GDPR workaround

Kevin Murphy, May 23, 2018, Domain Services

With full Whois records set to disappear from public view for most domain names this Friday, auction house Sedo has had to resort to some technical trickery to enable its users to prove they own the domains they list for sale.

Until now, when listing a domain at Sedo, the company has checked whether the Whois record matches the data it has on file for the customer.

With that no longer possible in many cases, Sedo told users yesterday it instead wants them make updates to their DNS records, which will obviously remain public data post-GDPR.

Sedo will give each customer a personal identification number, which they will have to add to the all-purpose TXT field of their domain’s DNS record.

That’s a fairly straightforward process at most registrars, though volume domainers had better hope their registrar of choice allows DNS changes to be made in bulk.

Sedo’s calling the process “Owner Self-Verification”.

Customers who do not use the system will have to wait three business days before their names are verified. Sedo said it will manually spot-check domains and may ask for other forms of proof of ownership.

UPDATE: Many thanks to all the people on Twitter telling me this system has been in place for years. You’re all very clever. Your cookies/cigars are in the mail.

ICANN board talking GDPR “litigation”

Kevin Murphy, May 21, 2018, Domain Policy

ICANN’s board of directors is meeting today to discuss its “litigation strategy” concerning the General Data Protection Regulation, the EU privacy legislation due to make Whois unrecognizable come Friday.

Those two words are basically the only item on its agenda for a special board meeting today.

I’ve been unable to squeeze any further information out of ICANN, but I can speculate about a few different things it could mean.

The first thing that springs to mind is a blog post by CEO Goran Marby dated April 12, in which he wrote:

Without a moratorium on enforcement, WHOIS will become fragmented and we must take steps to mitigate this issue. As such, we are studying all available remedies, including legal action in Europe to clarify our ability to continue to properly coordinate this important global information resource. We will provide more information in the coming days.

To my knowledge, no additional information on this “legal action in Europe” has ever been released.

Could ICANN be ready to take a data protection authority to court preemptively, as a test case to insulate the industry against enforcement action from DPAs? Your guess is as good as mine at this stage.

Another possibility, still in speculative territory, is that the board will be discussing the many calls from the industry for some kind of legal or financial indemnification against GDPR-related regulatory actions. I’d assign a relatively low probability to that idea.

A third notion that springs to mind, slightly more realistically, is that the board could simply be discussing how ICANN would defend itself from incoming litigation related to its GDPR response.

It usually takes ICANN a few days to post the results of its board meetings, but on important hot topics it’s not hugely unusual to see same-day publication.

Registrars want six-month stay on new Whois policy

Registrars representing the majority of the gTLD industry want ICANN to withhold the ban hammer for six months on its new temporary Whois policy.

As I reported earlier today, ICANN has formally approved an unprecedented Temporary Policy that seeks to bring the Whois provisions of its contracts into compliance with the EU’s General Data Protection Regulation.

It comes into effect next Friday, May 25, but it contains a fair few items that will likely take longer for registrars to implement.

While ICANN’s top lawyer has indicated that ICANN Compliance will act as reasonably as possible about enforcing the new policy, registrars want a moratorium of at least six months.

In a letter (pdf) dated May 16 (before the policy was voted through, but while its contents were broadly known), Registrar Stakeholder Group chair Graeme Bunton wrote:

Any temporary specification adopted now that significantly deviates from previously held expectations and models will be far too late for us to accommodate for a May 25, 2018 implementation date.

For this reason, we ask that any temporary specification include a formal ICANN compliance moratorium, not shorter than six (6) months, providing us an opportunity to conform, to the extent possible, our GDPR implementation with the GDPR-compliant aspects of any ICANN temporary specification

He added that some registrars may need even more time, so they should have the right ask for an extension if necessary.

The letter is signed by Endurance, GoDaddy, Tucows, Blacknight, 1&1, United Domains, NetEarth One and Cloudflare, which together account for most gTLD domains.

Domainers not welcome in this Whois database

Inquiries from domain investors are specifically barred under one registry’s take on GDPR compliance.

The Austrian ccTLD registry, nic.at, yesterday stopped publishing the personal information of human registrants in its public Whois database, unless the registrant has opted to have their data public.

The company said it will provide thick Whois records only to “people who provide proof of identity and are able to prove a legitimate interest for finding out who the domain holder is”.

But this specifically excludes people who are trying to buy the domain in question.

“A buying interest or the wish to contact the domain holder is definitely no legitimate interest,” the company said in a statement.

It quotes its head of legal, Barbara Schlossbauer, saying: “I am also not able to investigate a car driver’s address over his license number just because I like his car and want to buy it.”

She said that those able to access records include “law enforcement agencies, lawyers or people who contact nic.at following domain disputes and who can prove that their rights have been infringed”.

While nic.at is bound by GDPR, as a ccTLD registry it is not bound by the new GDPR-compliant Whois policy announced by ICANN overnight, where who will be able to request thick Whois records is still an open question.

ICANN approves messy, unfinished Whois policy

Kevin Murphy, May 18, 2018, Domain Policy

With a week left on the GDPR compliance clock, ICANN has formally approved a new Whois policy that will hit all gTLD registries and registrars next Friday.

The Temporary Specification for gTLD Registration Data represents the first time in its history ICANN has invoked contractual clauses that allow it to create binding policy in a top-down fashion, eschewing the usual community processes.

The policy, ICANN acknowledges, is not finished and needs some work. I would argue that it’s also still sufficiently vague that implementation in the wild is likely to be patchy.

What’s in public Whois?

The policy is clearest, and mostly unchanged compared to previous drafts, when it comes to describing which data may be published in public Whois and which data must be redacted.

If you do a Whois query on a gTLD domain from next week, you will no longer see the name, address, phone/fax number or email address of the registrant, admin or tech contacts.

You will continue to see the registrant’s organization, if there is one, and the country in which they are based, as well as some information about the registrar and name servers.

In future, public RDAP-based Whois databases will have to output “REDACTED FOR PRIVACY” in these fields, but for now they can just be blank.

While the GDPR is only designed to protect the privacy of humans, rather than companies, and only those connected to the European Union, the ICANN policy generally assumes that all registrants will be treated the same.

It will be possible for any registrant to opt out of having their data redacted, if being contactable is more important to them than their privacy.

What about privacy services?

Since the May 14 draft policy, ICANN has added a carve-out for domains that are already registered using commercial privacy/proxy services.

Whois records for those domains are NOT going to change under the new policy, which now has the text:

in the case of a domain name registration where a privacy/proxy service used (e.g. where data associated with a natural person is masked), Registrar MUST return in response to any query full WHOIS data, including the existing proxy/proxy pseudonymized email.

In the near term, this will presumably require registries/registrars to keep track of known privacy services. ICANN is working on a privacy/proxy accreditation program, but it’s not yet live.

So how do you contact registrants?

The policy begins to get more complicated when it addresses the ability to actually contact registrants.

In place of the registrant’s email address in public Whois, registries/registrars will now have to publish an anonymized email address or link to a web-based contact form.

Neither one of these options should be especially complex to implement — mail forwarding is a staple service at most registrars — but they will take time and effort to put in place.

ICANN indicated earlier this week that it may give contracted parties some breathing room to get this part of the policy done.

Who gets to see the private data?

The policy begins to fall apart when it describes granting access to full, unexpurgated, thick Whois records to third parties.

It seems to do a fairly good job of specifying that known quantities such as URS/UDRP providers, escrow providers, law enforcement, and ICANN itself continue to get access.

But it’s fuzzier when it comes to entities that really would like to continue to access Whois data, such as trademark lawyers, security service providers and consumer protection concerns.

While ICANN is adamant that third parties with “legitimate interests” should get access, the new policy does not enumerate with any specificity who these third parties are and the mechanism(s) contracted parties must use to grant such access.

This is what the policy says:

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

This appears to give contracted parties the responsibility to make legal judgment calls — balancing the GDPR-based privacy rights of the registrant against the “legitimate interests” of the requester — every time they get a thick Whois request.

The policy goes on to say that when European privacy regulators, the courts, or other legislation or regulation has specifically approved a certain class of requester, ICANN will relay this news to the industry and it will have 90 days to make sure that class gets full Whois access.

But the policy does not specify any formal mechanism by which anyone goes about requesting a thick record.

Do they just phone up the registrar and ask? Does the registrar have to publish a contact address for this purpose? How does the registrar go about confirming the requester is who they say they are? Should they keep white-lists of approved requesters, or approve each request on a domain-by-domain basis? When does the right of a trademark owner outweigh the privacy right of an individual?

None of these questions are answered by the policy, but in a non-binding annex ICANN points to ongoing community work to create an “accreditation and access model”.

That work appears to be progressing at a fair rapid clip, but I suspect that’s largely because the trademarks lawyers are holding the pens and discussions are not following ICANN’s usual consensus-building policy development rules.

When the work is absorbed into the ICANN process, we could be looking at a year or more before something gets finalized.

How will transfers work?

Because Whois is used during the inter-registrar transfer process, ICANN has also had to tweak its Inter-Registrar Transfer Policy to take account of instances where registrars can’t access each other’s databases.

Basically, it’s scrapping the requirement for gaining registrars to obtain a Form of Authorization from the Whois-listed registrant before they start an inbound transfer.

This will remove one hoop registrants have to jump through when they switch registrars (though losing registrars still have to obtain an FOA from them) at the cost of making it marginally easier for domain theft to occur.

What happens next?

ICANN acknowledges, in seven bullet points appended to the policy, that the community has more work to do, mainly on the access/accreditation program.

Its board resolution “acknowledges that there are other implementation items that require further community conversation and that the Board encourages the community to resolve as quickly as possible”.

The board has also asked ICANN staff to produce more explanatory materials covering the policy.

It also temporarily called off its Governmental Advisory Committee consultation, which I wrote about here, after receiving a letter from the GAC.

But the big next step is turning this Temporary Policy into an actual Consensus Policy.

The Temporary Policy mechanism, which has never been used before, is set up such that it has to be renewed by the board every 90 days, up to a maximum of one year.

This gives the GNSO until May 25 next year to complete a formal Policy Development Process. In fact, it will be a so-called “Expedited” PDP or EPDP, that cuts out some of the usual community outreach in order to provide a speedier result.

This, too, will be an unprecedented test of an ICANN policy-making mechanism.

The GNSO will have the Temporary Policy baseline to work from, but the Temporary Policy is also subject to board-level changes so the goalposts may move while the game is being played.

It’s going to be a big old challenge, and no mistake.